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United States v. Chavez-Chavez

April 22, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANDRES CHAVEZ-CHAVEZ (1), DAVID CHAVEZ-CHAVEZ (2), JOEL CHAVEZ-CHAVEZ (3), PATRICIA MENDEZ-LOPEZ (4), OMAR ESTRADA-ESQUIVEL (5), MIGUEL SANDOVAL-VALENCIA (6), LUIS SANDOVAL-VALENCIA (7), CARLOS PEREZ (8), RICARDO MADRIGAL (9), ISMAEL PENA (10), TERESA HERMOSILLO (11), RUBY ARELLANO (12), ROSA ARELLANO (13), RUBEN HERNANDEZ-ROMERO (14), SALVADOR OJEDA-AMARILLAS (15), GERARDO CASANOVA (16), JOAQUIN BUCIO-RODRIGUEZ (17), SALVADOR CHAVEZ-CHAVEZ (18), JULIO LUA-CHAVEZ (19), DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Motion for Discovery of Application, Affidavits and Orders concerning Wire Intercepts and Pen Registers (Doc. # 237) filed by Defendant Joaquin Bucio-Rodriguez and joined in by Defendant Andres Chavez-Chavez (Doc. # 267); Defendant Salvador Chavez-Chavez (Doc. # 238); Defendant Carlos Perez (Doc. # 239); Defendant Gerardo Casanova (Doc. # 240); Defendant Luis Sandoval-Valencia (Doc. # 242); Defendant Patricia Mendez-Lopez (Doc. # 247); Defendant Teresa Hermosillo (Doc. # 253); Defendant Salvador Ojeda-Amarillas (Doc. # 254); Defendant Julio Lua-Chavez (Doc. # 255); and Defendant Miguel Sandoval-Valencia (Doc. # 256). Defendants move the Court for an order requiring the Government to provide the following discovery: 1) the applications and orders for pen registers relied upon in the wiretap applications in this case; 2) orders, affidavits, and applications for nine*fn1 court-ordered wiretaps in the case of United States v. Arreola, 06cr590-H; and 3) copies of transcripts of all ex parte hearings of wire intercepts and/or pen register applications in the Arreola case.

BACKGROUND FACTS

On May 7, 2007, the grand jury returned the indictment in this case charging Defendant Andres Chavez and eighteen other defendants with conspiracy to import methamphetamine, conspiracy to distribute methamphetamine, possession of methamphetamine with intent to distribute, money laundering conspiracy, and money laundering. This indictment resulted from the investigation of the alleged drug trafficking activities of Andres Chavez which included approximately ten months of court-authorized wiretaps beginning on or about July 26, 2006. The Government has provided the Defendants with all materials related to these court-authorized wiretaps.

The first wiretap application in this case sought interception of the wire communications of Andres Chavez, David Chavez, Gerardo Casanova, Carlos Aviles and others from a wireless cell phone number (T-2) used by Andres Chavez. In the affidavit in support of the first wiretap application dated July 26, 2006, the agent informed the judge that Andres Chavez is a multi-pound methamphetamine distributor in San Diego County, that Aviles heads a transportation cell that imports methamphetamine, and that the two individuals appear to be a common drug-trafficking group. (Doc # 287-2 at 3.) The agent stated:

In 2005 and 2006, DEA agents and other law enforcement officers investigated a San Diego County-based methamphetamine trafficker, Jorge Arreola-Gomez. As part of that investigation, several defendants including Arreola (who is in custody) were charged with drug trafficking or money laundering offenses, and agents seized over 140 pounds of methamphetamine, about 20 pounds of pseudoephedrine (a nasal decongestant commonly used to manufacture, methamphetamine), weapons, over $200,000 in drug proceeds, and several vehicles. That investigation relied in part on court-authorized wire intercepts from September 2005 to March 2006 of phones used by Arreola and others. Among the individuals intercepted in drug related conversations with Arreola was a male then known only as "Pacas" (later identified as Andres ChavezChavez). Pacas used two phones to speak to Arreola, including (619) 818-3212 (T-1). (Doc. # 287-2 at 4.) The agent stated in the affidavit that "[i]n April or early May 2006, an informant (CS-1) advised that 'Pacas' was a multi-pound methamphetamine trafficker in San Diego County. CS-1 said Pacas and Jorge Arreola-Gomez were partners in distributing methamphetamine until two to three years ago when they separated and each took their own customer base. CS-1 said Pacas had been looking into obtaining Arreola's customer base after Arreola's March 2006 arrest." Id. CS-1 provided a phone number for Andres Chavez which was the same number (T-1) intercepted in the Arreola wiretaps.

The agent stated that on May 9, 2006, CS-1 recorded a phone call to Andres Chavez at T-1 to obtain methamphetamine; that on May 11, 2006, SC-1 introduced an undercover agent to David Chavez who was sent by his older brother Andres Chavez; and that David Chavez provided the undercover agent with a methamphetamine sample. During the meeting, the undercover agent spoke to Andres Chavez by phone to discuss future meetings and David Chavez provided the undercover agent with a phone number (T-1) for Andres Chavez. (Doc. # 287-2 at 5.)

The agent stated in the affidavit that on May 15, 2006, CS-1 received a phone call from Andres Chavez in which Andres Chavez told the informant that one of his workers had been arrested; that law enforcement took the workers phone which had his number in it; and that he had obtained a new phone number (T-2). Andres Chavez told CS-1 to give his new number to the undercover agent. The agent further stated that on May 24, 2006, the undercover agent called the new number (T-2) to set up a purchase of one pound of methamphetamine from Andres Chavez, through his brother David Chavez. (Doc. # 287-2 at 6.)

The agent detailed other information in the affidavit gathered through phone calls recorded by the undercover agent, surveillance, and phone analysis relating to Andres Chavez and Carlos Aviles. The agent stated in the affidavit that "Salvador Chavez (at the time his identity was unknown) was intercepted during the Jorge Arreola investigation seeking methamphetamine. For example, on February 4, 2006, Salvador Chavez asked Arreola, in substance, to sell him methamphetamine and to lower the price from $9,500 per pound. On February 5, 2006, Salvador Chavez told Arreola he was ready, and he needed a 'handful' [probably five pounds] of methamphetamine." (Doc.# 287-2 at 11.)

In the Section II: Necessity of the affidavit, the agent stated : . . . Andres Chavez and, to a lesser extent, his brother Salvador were intercepted during the Jorge Arreola investigation (at the time, they were not identified). Those calls confirmed the Chavez brothers are methamphetamine traffickers, but did not provide information sufficient to accomplish the objectives in paragraph 6. I believe the reason is the brothers' phones were not targeted and therefore we only intercepted them sporadically and by chance. Because we were intercepting the brothers through Arreola's phones, those calls also naturally focused largely, if not entirely, on their interactions with Arreola. In other words, there was no reason, in those calls, with Arreola, for Andres Chavez to discuss matters in paragraph 6. By contrast, I believe a wiretap on Andres Chavez's phone should produce at least more of the information we seek, because in the course of conducting his drug business, he necessarily will need to coordinate with buyers, those who assist him, and those above him in the distribution chain - i.e., those persons he had no reason to talk about in his conversations with Arreola.

(Doc. # 287 at 26.) Attached to the affidavit of the agent was a page titled "PRIOR APPLICATIONS" which listed six authorized interceptions of wire communications from October 3, 2005 through February 21, 2006 and stated as to each order that "Andres ChavezChavez, aka Pacas, was intercepted under that order." (Doc # 287-2 at 29.) The list further stated that Salvador Chavez-Chavez was intercepted under two of the six orders.

APPLICABLE LAW

Under Rule 16(a)(1)(C), "the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, . . . or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." Fed. R. Crim. P. 16(a)(1)(C). Defendants are entitled to discover only those materials that are relevant to Defendants' response to the Government's case-in chief. United States v. Chon, 210 F.3d 990, 995 ...


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