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United States v. Ojeda-Amarillas

March 3, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SALVADOR OJEDA-AMARILLAS (15), DEFENDANT.



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

ORDER

The matter before the Court is the motion for an order suppressing wiretap evidence or, alternatively, setting an evidentiary hearing filed by Defendant Salvador Ojeda-Amarillas. (Doc. # 361).

BACKGROUND FACTS

On May 7, 2007, the grand jury returned the indictment in this case charging Defendant Salvador Ojeda-Amarillas 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-Chavez which included approximately ten months of court-authorized wiretaps beginning on or about July 26, 2006.

The first wiretap application in this case sought interception of the wire communications from a wireless cell phone number (T-2) used by Andres Chavez-Chavez. The application sought to intercept the communications of Andres Chavez-Chavez, David Chavez-Chavez, Salvador Chavez-Chavez, Gerardo Casanova, Carlos Aviles, and Chava "2000", "subsequently identified as Defendant Salvador Ojeda-Amarillas." (Doc. # 361-2 at 3). In the affidavit in support of the first wiretap application dated July 26, 2006, Drug Enforcement Administration Special Agent Kathryn D. Jackson stated:

This investigation is focused on a group of methamphetamine traffickers in Mexico and the United States. Based on the evidence below, we suspect the immediate Mexico-based supplier is or works with an unknown person who uses a phone subscribed to "Chava 2000" . . . It appears "Chava 2000" (or those he works with) may use Carlos Aviles to import methamphetamine into the United States. Based upon source information, agents have seized two loads of liquid methamphetamine from couriers allegedly employed by Aviles. We have identified Andres Chavez-Chavez, aka Pacas ("Chavez"), as a methamphetamine trafficker who resides in San Diego County. Based upon evidence below, we suspect Chavez is supplied directly or indirectly by "Chava 2000" or, at least, the same group that "Chava 2000" works for. Chavez is assisted at least by his brother, David. Through an informant, an undercover agent has purchased methamphetamine from David Chavez in transactions set up through Andres Chavez. Andres Chavez uses T-2 to facilitate his drug trafficking activities. (Doc. # 441-4 at 4).

Agent Jackson described the goals of the investigation including (1) determining the volume and geographic scope of Chavez's and Aviles's drug trafficking activities; (2)determining certain manner and means of the offenses, such as how drugs are transported into the country, how proceeds are transported or laundered, where drugs and money are stored or held; (3) identifying and developing sufficient evidence to prosecute Chavez's criminal associates, including suppliers, assistants, and major distributors; (4) developing sufficient prosecutable evidence against Aviles; (5) identifying and developing sufficient evidence to prosecute Aviles's criminal associates, including suppliers or persons who use Aviles to transport drug loads, couriers, loaders, and major load recipients; (6) determining the scope, composition, hierarchy, and methods of operation of the drug trafficking group with which Chavez, Aviles, and Chava 2000 are associated; and developing sufficient prosecutable evidence to dismantle that group; and (8) identifying and developing sufficient evidence to forfeit assets used to facilitate, or that constitute proceeds of, the offense. (Doc. # 441-4 at 3).

Agent Jackson outlined the evidence from the government's investigation to support the assertion in the application that Andres Chavez-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. # 441-4 at 3). Agent Jackson stated in the affidavit that on May 24, 2006, an undercover agent called the target number (T-2) to set up a purchase of one pound of methamphetamine from Andres Chavez, through his brother David Chavez. Agent Jackson described the details of this drug transaction. (Doc. # 441-4 at 6).

In "Section II: Necessity" of the affidavit, the Agent Jackson stated in part "while we have made progress in this investigation, we have not achieved our investigative objectives... [and that] wire interception over T-2 is necessary to accomplish those goals, ... because normal investigative procedures have been tried and failed, reasonably appear unlikely to succeed if tried, or are too dangerous." (Doc. #441-4 at 13). Agent Jackson detailed the investigative procedures tried to date including undercover operations, informants and other cooperators, physical surveillance, searches and seizures, grand jury and subpoenas, witness interviews, phone analysis, and prior wiretaps. (Doc. #441-4 at 13-36).

On July 26, 2006, United States District Judge Barry Ted Moskowitz found probable cause to believe that Andres Chavez-Chavez, David Chavez-Chavez, Salvador ChavezChavez, Gerardo Casanova, "Chava 2000", Carlos Aviles and others known and unknown have committed, are committing, and will continue to commit the offenses of distribution of controlled substances and conspiracy to do same, importation of controlled substances and conspiracy to do same, illegal use of a communication facility, and money laundering. Judge Moskowitz found that "[i]t has been adequately established that normal investigative procedures have been tried and failed, reasonably appear unlikely to succeed if tried, or are too dangerous to employ." (Doc 441-4 at 32). Judge Moskowitz signed an order authorizing the interception of communications on the target telephone (T#2).

Defendant states in the memorandum in support of the motion for an order suppressing the wiretaps that subsequent extensions for target telephone (T-2) and additional target telephones were sought and orders signed in this case on August 25, 2006; September 23, 2006; October 20, 2006; November 27, 2006; December 28, 2006; February 9, 2007; March 9, 2007; and April 27, 2007. These applications and orders have not been provided to this Court.

CONTENTIONS OF THE PARTIES

Defendant Ojeda contends that the wiretap authorized from the July 26, 2006 application and each of the successive applications were unlawful, and that the evidence obtained from the wiretaps should be suppressed as "fruit of the poisonous tree." Defendant contends that the affidavit of Agent Jackson submitted in support of the application for an order authorizing the wiretap failed to establish the requisite necessity under 18 U.S.C. § 2518(1)(c). Defendant asserts that the affidavit of Special Agent Jackson failed to make the required full and complete statement of facts and presented no issue of danger as a justification for the wiretap. Defendant asserts that ordinary investigative procedures employed before the July 26, 2006 wiretap had produced overwhelming evidence to prosecute the Andres ChavezChavez organization and that there was no genuine need for the wiretap. In addition, Defendant contends that the Government relied upon communications intercepted pursuant to other federal wiretap in establishing probable cause for the July 26, 2006 wiretap application.

The Government contends that Defendant's motion to suppress must be limited to the July 26, 2006 wiretap application and order because the Defendant has presented no substantive arguments or evidence regarding the validity of any subsequent wiretap application or order in this case. The Government asserts that the affidavit in support of the July 26, 2006 wiretap application fully disclosed all facts including all prior application that were required to be disclosed under 18 U.S.C. ยง 2518(1)(e). The Government asserts that the affidavit in support of the July 26, 2006 wiretap application fully and completely discussed other investigative methods and adequately set forth facts to establish necessity under Section 2518(1)(c). In addition, the Government asserts that other Title ...


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