The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion to suppress wire and electronic communication evidence filed by Defendant Cesar Diaz. (Doc. # 77).
On October 23, 2008, the grand jury returned the indictment in this case charging Defendant Cesar Diaz in Count 1 with knowingly and unlawfully possessing a semi -automatic pistol in violation of 18 U.S.C. § 922(g)(1) and 924; in Count 2 with knowingly and unlawfully possessing ammunition in violation of 18 U.S.C. § 922(g)(1) and 924; and in Count 3 with being an alien who was illegally and unlawfully in the United States, knowingly and unlawfully possessing a semi-automatic pistol in violation of 18 U.S.C. § 922(g)(5) and 924.
From March 2005 to October 2008, the North County Regional Gang Task Force investigated the Varrio Posole Locos street gang ("the Posole gang"). In November of 2006, law enforcement officials applied for wiretap authorization seeking to intercept the wire communications to and from a cell phone number (T-1) subscribed to and used by Jesus Gonzalez. The affidavit in support of the November 2006 application was prepared by Federal Bureau of Investigation ("FBI") Special Agent Patrick Casey. Special Agent Casey declared that Jesus Gonzalez, an alleged Posole gang member, and other gang members are involved in the distribution of narcotics and the extortion of money in the form of taxes from other drug dealers. The affidavit detailed two drug deals which took place on August 11, 2006 and on August 29, 2006. In each of these drug deals, law enforcement used a confidential informant to purchase methamphetamine from Gonzalez. Special Agent Casey stated in part in the affidavit:
In addition to narcotics trafficking, the Posole gang is also involved in the extortion of other criminals, primarily drug dealers - these criminals are required to pay a 'tax' to the Posole gang in order to conduct their illegal activities. At least part of the proceeds from this 'taxing' by the Posole gang are, in turn, sent to the Mexican Mafia prison gang as a 'tax.' The Posole gang appears to transfer money to Jesse Moreno Sr., aka Big Jess, who, I believe, is both a validated member of the Mexican Mafia and the head of the Posole gang. Moreno is presently incarcerated in the federal prison system due to convictions for narcotics and weapons charges. Moreno's sons (Valentino Moreno... Joseph Moreno...; and Jesse Moreno, Jr. ...) are also leaders of the Posole gang, with Valentino overseeing the day-to-day activities of the gang. A great majority of the leaders of the Posole gang are related in some fashion by blood and/or marriage. For example, Frank Sandoval ..., one of Valentino's most trusted lieutenants in the gang, is also believed to be Moreno's cousin. ...
Following the drug deals on August 11 and August 29, CI-1 informed us that he was contacted by Jenny Moreno, the grandmother of Valentino Moreno, who I believe is involved in the gang's illegal activities including the extortion operation. Jenny Moreno told CI-1 that he owed her $100 for selling narcotics in the area controlled by the Posole gang; she further informed CI-1 that she was 'taxing' (i.e. extorting money) under the authority of Valentino Moreno. CI-1 provided Jenny Moreno with an initial payment of $20. CI-1 has informed us that Valentino Moreno subsequently attempted to find CI-1 at CI-1's residence on a number of occasions apparently to collect remaining monies owed to the Posole gang as 'taxes.' We believe that Gonzalez identified CI-1 as an active drug dealer to the Posole gang so that CI-1 could be subjected to 'taxing.' (November 2, 2007 Affidavit, pages 3 and 9).
In the "Necessity" section of the affidavit, the Special Agent Casey 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. Special Agent Casey provided specific details regarding the informants and stated that Valentino Moreno may have become suspicious of CI-1, and that CI-2 has refused to have any more dealings with gang members out of fear for personal safety. Special Agent Casey stated that the "sensitivity of Posole gang members to potential cooperators/informants appears to have been increased by the recent arrest of the gang's leader pursuant to a Mexican Mafia investigation" and "the Posole gang's reputation for extreme violence has significantly limited law enforcement's ability to develop cooperators or informants." (Id. at 14). The affidavit of Special Agent Casey further reviewed the efforts made in undercover operations and concluded that "the infiltration of an agent does not appear likely to succeed given the structure of the gang and its sensitivity to law enforcement." (Id. at 15). Special Agent Casey described in detail physical surveillance efforts, searches and seizures, grand jury interviews, phone analysis, and prior wiretaps utilized by law enforcement prior to the November 2006 application for wiretap. (Id. at 17-25).
On November 2, 2006, this district court judge found that there was probable cause to believe that Jesus Gonzalez and others have committed and will continue to commit the crimes of distribution of controlled substances, conspiracy, importation of controlled substances, as well as other named crimes. The Court found that there was probable cause to believe that the particular wire communications concerning these criminal activities will be obtained through the requested interceptions. The Court concluded 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." (November 2, 2006 Order, page 3). The Court authorized the interception of wire communications over T-1 for a thirty day period.
After interception of T-1, the Government sought authorization in January of 2007 to intercept calls to and from a cell phone subscribed to and used by Frank Sandoval (T-2). The January 2007 application outlined the same offenses set forth in the November 2006 application. The January 2007 application was supported by the affidavit of FBI Special Agent Sharna Skjei. This Court signed the order authorizing the requested wiretap on January 11, 2007.
In March of 2007, the Government sought an order to authorize the continued interception of the wire communications of Frank Sandoval, Valentino Moreno, Cesar Diaz, Jesus Gonzalez, and other named persons to and from the cell phone (T-2) subscribed to and used by Frank Sandoval; a cell phone (T-3) subscribed to and used by Valentino Moreno; and a cell phone (T-4) subscribed to by Maria Perez believed to be "used by Jesse Patrick Moreno, Jr. currently incarcerated with the California Department of Corrections and Rehabilitation at Ironwood State Prison." (March 6, 2007 Affidavit, page 3). The March 2007 application outlined the same offenses set forth in the initial November 2006 application and in the January 2007 application. The March 2007 application was supported by the affidavit of FBI Special Agent Skjei. The affidavit of Special Agent Skjei "incorporated in full" for review by the Court the affidavit submitted in support of the November 2006 wiretap order and the affidavit submitted in support of the January 2007 wiretap order. (March 6, 2007 affidavit, page 4).
Special Agent Skjei outlined in detail significant developments in the investigation since the January 11, 2007 order. Based upon intercepted calls over T-2, Special Agent Skjei stated that she believed that Frank Sandoval is engaged in narcotics trafficking, firearms trafficking, and collecting extortion money on behalf of Valentino Moreno and the Posole gang. Special Agent Skjei further stated:
Based upon intercepted calls over T-2, Posole gang members appear to have conducted a residential burglary in the gang's Oceanside neighborhood, and stole amongst other things, six to eight firearms, a gun locker, and ammunition.
I believe that these weapons have been distributed to a number of Posole gang members who have violent criminal histories. For example, pursuant to intercepted calls, at least one weapon appears to have been smuggled into Mexico and delivered to Gerardo Mendoza. Moreover, it appears that at least one weapon has been provided to a Posole gang member to commit violence due to an ongoing conflict with another individual. Based upon intercepted calls, the Posole gang appears to be involved in the smuggling of narcotics into penal facilities for use and/or sale by incarcerated Posole gang members, including Jesse Moreno Jr., Valentino Moreno's brother and another leader of the Posole gang. We have also identified a cellular telephone which I believe is being used by Jesse Moreno, Jr., who is incarcerated, to conduct business outside the penal facility - we are presently unsure as to how Moreno was able to obtain a cell phone in prison and how he is able to use it on a consistent basis while in prison.... Given the apparent access to contraband, including a cell phone, I believe that there is a significant risk that Jesse Moreno, Jr. may have correctional officers providing him with assistance in his illegal activities. (Id. at ...