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United States v. Tirado

United States District Court, E.D. Wisconsin

January 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY TIRADO JR., et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION ON DEFENDANTS' PRETRIAL MOTIONS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         Motions to Suppress………………………………………………. ……... 2

Wiretap Intercepts………………………………………… ……... 2
Pole Camera Footage…………………………………… ............. 18
Evidence from Jose Perez's Residence…………………... ……... 29
Evidence from Defendant Dumas' Cell Phones………… ……... 29

         Motion to Sever…………………………………………………………… 35

         Motions to Disclose Confidential Informants…………………… ……... 38

         Motion for Bill of Particulars (Count One) ……………………... ……... 42

         Motion to Dismiss (Count Two) or For Bill of Particulars .................... 44

         Motion for Notice of Certain Evidence………………………… ............ 49

         On October 18, 2016, a grand jury returned a seventeen-count indictment charging twenty-four defendants with various drug trafficking, money laundering, and firearm offenses, including conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A), and § 846. Defendants have pled not guilty. Due to the number of defendants, number of counts, and the volume of discovery, the case was designated complex. A jury trial before the Honorable Lynn Adelman is adjourned pending resolution of pretrial motions.

         Briefing on all pretrial motions closed on January 12, 2018. Now before me are defendants' pre-trial motions: (1) Motions to Suppress Wiretap Intercepts; (2) Motions to Suppress Pole Camera Footage; (3) Motion to Suppress Evidence from Jose Perez's Residence; (4) Motion to Suppress Evidence from Defendant Trevian Dumas' Cell Phones; (5) Motion to Sever; (6) Motions to Disclose Confidential Informants; (7) Motion for Bill of Particulars As To Count One; (8) Motion to Dismiss Count Two, or in the Alternative for A Bill of Particulars; and (9) Motion for Notice of Certain Evidence. I will address each in turn.

         1. Motions to Suppress Wiretap Intercepts

         On August 26, 2016, a Title III order was signed and issued by the Honorable J.P Stadtmueller. On September 23, 2016, the Honorable Lynn Adelman issued a second continuing Title III order. Both wiretaps were issued to intercept communications to and from telephone number (262) 308-0947 and were ordered to last no longer than thirty days each. Both intercept applications were based on sworn affidavits of FBI Task Force Officer David Rybarik.

         Defendants argue that the evidence derived from the Title III intercepts should be suppressed because the government failed to show necessity pursuant to 18 U.S.C. § 2518. Defendants Ernesto Perez, Trevian Dumas, Gregory Tirado Jr., and Juan Guajardo assert that Rybarik's affidavit contained material omissions and false statements and request a Franks hearing. Additionally, Perez, Dumas, Sorenson, and Tirado Jr. claim that the wiretap orders violated procedures for “roving intercepts” pursuant to § 2518(11).

         1.1 Request for Franks

         Hearing Defendants Ernesto Perez, Trevian Dumas, Gregory Tirado Jr., and Juan Guajardo argue that the affidavit in support of the Title III wiretap contains false statements and material omissions regarding the government's informants and request an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The government opposes the requests for a Franks hearing.

         The defendants are entitled to a Franks evidentiary hearing regarding the truthfulness of information contained in the warrant application if they can make a substantial preliminary showing that: “(1) the affidavit contained false statements, (2) these false statements were made intentionally or with reckless disregard for the truth, and (3) the false statements were material to the finding of probable cause.” United States v. Hancock, 844 F.3d 702, 708 (7th Cir. 2016); United States v. Johnson, 580 F.3d 666, 670 (7th Cir. 2009). The same standard is applied to an allegation of material omissions in a warrant application. United States v. Glover, 755 F.3d 811, 820 (7th Cir. 2014).

         1.1.1 Statements Regarding Use, Access, and Success of Cooperators

         Defendants contest the truthfulness of several of Rybarik's statements in his affidavit. First, defendants argue that the statements “it is too risky to employ long-term sources” (Rybarik Aff. ¶ 171) and “several sources have limited utility because they have limited access to the violators, ” (Rybarik Aff. ¶ 175), are false and contain material omissions. (Perez Mot. to Suppress at 16, Docket # 315). As to risk in using the confidential sources, defendants assert that cooperating source CS-2 was in fact used until defendants were arrested on October 6, 2016. (Id.) Defendants also argue that the government omitted “the extent to which the cooperating sources could have been successfully used to infiltrate this conspiratorial group.” (Id.)

         As to the cooperating sources' limited access, defendants note that the cooperating sources had access to the “Violators” as well as the main suppliers and Maniac Latin Disciple (or “MLD”) leaders. (Id. at 18-19.) Specifically, defendants point out that paragraph 33 of the affidavit states that informant CS-2 “was close to both Gregory Tirado Jr. and Gregory Tirado Sr.” and paragraph 15 of the affidavit states that “CS-1 was ‘fronted' [drugs] from the ‘top cocaine suppliers in this investigation.'” (Id. at 19.)

         Defendants have failed to make a substantial preliminary showing of falsity or material omission regarding these statements. Specifically, the statements concerning the risk of employing long term cooperating sources were substantiated by the affidavit. (See Rybarik Aff. ¶ 171.) For example, CS-2, a member of MLD for ten years, was threatened by Tirado Sr. (Rybarik Aff. ¶ 33; ¶ 174.) Additionally, CS-1 was asked whether he was cooperating with law enforcement. (Rybarik Aff. ¶ 173.) Further, as discussed below, MLD leaders were suspected to have committed violence against MLD members out of fear of them cooperating with law enforcement. (Rybarik Aff. ¶ 172.)

         Similarly, defendants have not shown that the affidavit's statement regarding the limited access of the cooperators is false. The affidavit asserts and defendants do not contest, that at the time of the application, no cooperating sources had access to Jose Perez and Isaac Vasquez, both whom were suspected drug suppliers. (Rybarik Aff. ¶ 196.) Finally, defendants have not shown that the affidavit omitted information about the cooperators' success. Unlike the affidavit in United States v. Blackmon, 273 F.3d 1204 (9th Cir. 2001)-a Ninth Circuit case that defendants cite-the affidavit in this case demonstrates the extent of the cooperating sources' success. For example, the affidavit explains that CS-1: (1) was a long standing member of the MLD (Rybarik Aff. ¶ 15); (2) identified high ranking MLD leaders (Rybarik Aff. ¶ 25); and (3) was fronted large quantities of cocaine and marijuana (Rybarik Aff. ¶ 30). However, this does not negate the cooperating sources' limited access to all of the MLD drug suppliers. For all these reasons, defendants have not made a preliminary showing that the affidavits contained false statements or omissions regarding the use, access, and success of the cooperators warranting a Franks hearing.

         1.1.2 Statement Regarding Murder of MLD Member

         Next, defendants challenge the veracity of the statements in paragraph 172 of the affidavit. (Docket # 315 at 17.) Paragraph 172 of Rybarik's affidavit reads as follows:

The Zion and Waukegan Police Department (or “ZWPD”) has information that suspected cooperators against the MLD street gang have been killed. For example, in 2009 or 2010, two MLD gang members followed orders and killed a rival Latin King gang member, as instructed by MLD leaders. The MLD leaders were concerned that two MLD gang members would cooperate with law enforcement and disclose the ordered killing as well as identify the other MLD gang members involved in the killing. The MLD gang eventually killed the two members who committed the murder of the rival Latin King gang member, due to concerns that the MLD who committed the murder would provide details to implicate MLD Gang leaders in the murder of the Latin King.

(Rybarik Aff. ¶ 172.)

         Defendants argue that this paragraph contains several false statements and material omissions. First, defendants argue that there is no evidence that the killing of the one (not two) MLD member was ordered by an MLD leader. (Docket # 315 at 18.) Next, defendants assert that the information about MLD leaders ordering the murder of MLD gang members came from a jailhouse informant; an inherently unreliable source. (Id.)

         Defendants also have not met their burden as to this allegation. A demonstration that an affidavit contains inaccurate information is insufficient. Rather, the defendants must also demonstrate that the affiant knew, or should have known, that the statement was false. In this regard, the focus is on the state of mind of the affiant. United States v. Jones, 208 F.3d 603, 607 (7th Cir. 2000). The defendants must offer direct evidence of the affiant's state of mind or inferential evidence to prove deliberate falsehood or reckless disregard for the truth. United States v. Whitley, 249 F.3d 614, 621 (7th Cir. 2001) (citing United States v. Williams, 737 F.2d 594 (7th Cir. 1984)) (internal quotation marks omitted). This is a difficult burden for a defendant to meet. See United States v. Swanson, 210 F.3d 788, 789-90 (7th Cir. 2000).

         In this case, even assuming that the Zion and Waukegan Police Department relayed false information to Rybarik about the details of the MLD gang member murders, defendants have not shown that Rybarik knew the statements were false or included the statements in reckless disregard of the truth. See United States v. McAllister, 18 F.3d 1412, 1417 (7th Cir. 1994) (“A Franks violation occurs only if the affiant knew the party was lying, or if the affiant proceeded in reckless disregard of the truth.”).

         Additionally, the defendants do not make a substantial preliminary showing that the officers who were passing the information to Rybarik knew or should have known that the information being relayed was false. The state of mind not only of the affiant, but also of the officers from whom the affiant received false information incorporated into the affidavit, is at issue. See United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir. 1984); United States v. McAllister, 18 F.3d 1412, 1417 (7th Cir. 1994). Thus, defendants fail to make a substantial preliminary showing on the second of the Franks requirements-that the affiant made the false statement knowingly and intentionally, or with reckless disregard of the truth. Accordingly, I need not reach the final Franks hearing element which requires the defendants to show that the false statements were material to probable cause.

         1.1.3 Statements About Search of CS-2 and Threat to CS-2

         Third, defendants assert that the affidavit contained several false statements or material omissions regarding a May 31, 2016 controlled buy from Tirado Sr. The defendants argue that the statement about CS-2 being afraid of being “strip-searched” was false as Ortiz-Cartajena merely “touched [his] body to feel for a wire.” (Docket # 315 at 19.) The defendants have not have shown that this statement was false. The affidavit alleges that CS-2 feared he was going to be strip searched; he did not allege that he was in fact strip searched. This statement does not warrant a Franks hearing.

         Additionally, as to the May 31, 2016 controlled buy, defendants allege that paragraph 112 contains material omissions. Paragraph 112 reads as follows:

It should be noted that while reviewing the recorded footage, TFOs found that during this buy operation when CS-2 arrived and walked to the backyard, CS-2 greeted Tirado Sr. Tirado Sr. then told CS-2 that if CS-2 was telling on him, that he would kill CS-2 when he got out of prison. Tirado Sr. told CS-2, “I'm not joking with you motherfucker.”

(Rybarik Aff. ¶ 112.) This incident is cross referenced with paragraph 174 of the necessity section of the affidavit which reads as follows:

As another example, on April 31, 2016, while wearing recording equipment, CS-2 was brought to . . . Tirado Sr.'s basement . . . and searched by Pedro Juarez and Marcelino Ortiz-Carajena, associates of Tirado Sr. Prior to entering the basement, Tirado Sr. informed CS-2 that if CS-2 is found to be working with law enforcement and Tirado Sr. is arrested/incarcerated due to CS-2, every day that Tirado Sr. is in prison Tirado Sr. will be thinking about killing CS-2. Upon being let out of prison, Tirado Sr. will kill CS-2.

(Rybarik Aff. ¶ 174.)

         Defendants assert that the officer intentionally omitted Tirado Sr. saying “I'm just playing” at the end of his threat. (Docket # 315 at 19.) Defendants allege that review of the recording of the controlled buy shows that CS-2 knew that Tirado Sr. was joking when he made the statement. Here, even if Rybarik omitted “I'm just playing, ” defendants have not made a preliminary showing that the inclusion of this statement would have altered the necessity of the wiretap intercept. This is especially true, in light of the surrounding circumstances of this incident which indicated intimidation of the cooperator. The cooperator was brought down to a dark basement and patted down by two individuals. (Rybarik Aff. ¶ 174.)

         Finally, defendants assert that the statement in paragraph 174 about Tirado Sr. thinking of killing CS-2 every day he is prison was never said. (Docket # 315 at 19-20.) The government counters that Tirado Sr. did threaten to kill CS-2 when he got out of prison. (Gov't Resp. at 25, Docket # 359.) Even if this statement was not made as defendants argue, defendants have not made a preliminary showing that this threat alone was material to the necessity of the wiretap intercept. As will be discussed further below, Rybarik submitted an extensive factual presentation on the necessity of the wiretap intercept order. Given the totality of the information in the affidavit, the defendants have not made a substantial preliminary showing on any of their claims of falsity or material omissions warranting a Franks hearing. Defendants' request for a Franks hearing is, therefore, denied.

         1.2 Necessity

         Defendants argue that the affidavit fails to demonstrate the requisite need for the intercept order. First, they argue that the government was successful in infiltrating the conspiracy group. Next, they argue that other investigatory procedures were either successful or would have been successful if the government attempted or continued to pursue them. (Docket # 315 at 5-21.) Third, they assert that Rybarik's affidavit contains “boilerplate conclusions” which simply “describe the investigative limitations inherent in most narcotic investigations.” (Id. at 7.)

         Title 18 U.S.C. § 2518(1)(c) requires that an application for an electronic intercept contain:

[A] full and complete statement as to whether or not investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

         § 2518(1)(c). The government needs to establish only one of the three alternatives listed in the statute. United States v. Mandell, 833 F.3d 816, 821 (7th Cir. 2016). Additionally, “[t]he necessity requirement ‘was not intended to ensure that wiretaps are used only as a last resort in an investigation, but rather that they are not to be routinely employed as the initial step in a criminal investigation.'” Id. (quoting United States v. McLee, 436 F.3d 751, 763 (7th Cir. 2006)). “[T]he government's burden in establishing compliance with § 2518(1)(c) ‘is not great' and the requirement of exhausting ‘other investigatory procedures' prior to obtaining a wiretap is ‘reviewed in a practical and common-sense fashion.'” McLee, 436 F.3d at 763 (internal citations omitted). Furthermore, the government is not required to show that prosecution would be impossible without the wiretap or even that the evidence “sufficient for indictment could not conceivably be obtained by other means.” Id. (quoting United States v. Plescia, 48 F.3d 428, 430 (7th Cir. 1995)). Finally, a court reviewing the necessity of a wiretap applies an abuse of discretion standard, “giving substantial deference to the determination of the issuing judge.” United States v. Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988).

         With these principles in mind, I find that the affidavit filed in support of the application satisfied the necessity requirement. Paragraphs 169 through 219 of Rybarik's affidavit submitted to Judge Stadtmueller on August 26, 2016 set forth why conventional investigative techniques “(1) [had] been attempted and have not been fully successful; (2) reasonably appear to be unlikely to be productive if attempted; or (3) are too risky to employ under the circumstances surrounding this investigation.” (Rybarik Aff. ¶¶ 169-219.) Paragraphs 146 through 177 of Rybarik's second affidavit submitted to Judge Adelman on September 23, 2016 make the same assertions. (Rybarik Second Aff. ¶¶ 146-177.) Specifically, the affidavit stated that the wiretap interception was needed in order to identify: the methods of drug distribution; the roles of accomplices and co-conspirators; the distribution of money involved in the activities; the location of records related to the illegal activities including financial records; the resources used to finance the illegal activities; the disposition of proceeds; the location of narcotics and firearms; and the methods and means used to protect and promote the illegal activities. (Rybarik Aff. ¶ 169.)

         As to the risks associated with the continued use of cooperating sources, paragraph 172 of the affidavit asserts that:

The Zion and Waukegan Police Department (hereinafter “ZWPD”) has information that suspected cooperators against the MLD street gang have been killed. For example, in 2009 or 2010, two MLD gang members followed orders and killed a rival Latin King gang member, as instructed by MLD leaders. The MLD leaders were concerned that two MLD gang members would cooperate with law enforcement and disclose the ordered killing as well as identify the other MLD gang members involved in the killing. The MLD gang eventually killed the two members who committed the murder of the rival Latin King gang member, due to concerns that the MLD who committed the murder would provide details to implicate MLD Gang leaders in the murder of the Latin King.

         (Rybarik Aff. ¶ 172.)

         Further, the affidavit asserts that: “CS-1 observed Trevian Dumas park near [defendant] Balderas' residence and asked CS-1 if CS-1 was cooperating with law enforcement, which CS-1 denied.” (Rybarik Aff. ¶ 173.) The affidavit also states that CS-1 was informed by gang member Dumas that “CS-1 was believed to be cooperating with law enforcement.” Further, “CS-1 no longer wears recording equipment or participates in controlled buys with the [defendants.]” (Rybarik Aff. ¶ 176.)

         Later, the affiant avers that:

As another example, on April 31, 2016, while wearing recording equipment, CS-2 was brought to . . . Tirado Sr.'s basement . . . and searched by Pedro Juarez and Marcelino Ortiz-Carajena, associates of Tirado Sr. Prior to entering the basement, Tirado Sr. informed CS-2 that if CS-2 is found to be working with law enforcement and Tirado Sr. is arrested/incarcerated due to CS-2, every day that Tirado Sr. is in prison Tirado Sr. will be thinking about killing CS-2. Upon being let out of prison, Tirado Sr. will kill CS-2.

         (Rybarik Aff. ¶ 174.) In explaining the limited usefulness of physical surveillance the affidavit states:

The MLD as a group are very surveillance conscious and warn each other of the presence of law enforcement. As discussed above, during the controlled buy on June 1, 2016, Melendez switched the original meet location in the attempt to identify law enforcement. As a result, it is extremely difficult to conduct surveillance without being compromised.

         (Rybarik Aff. ¶ 182.)

         The affidavit states that video surveillance is useful because it allows law enforcement to observe a limited area without the need to be physically present, but is limited because it is not mobile and the drug transactions between Tirado Jr. and the cooperating sources take place indoors. (Rybarik Aff. ¶ 185.) Further, the affidavit explained that tracking devices are of limited use because Tirado Jr. was on house arrest, (Rybarik Aff. ¶ 186) and while a tracking device may be able to record travel of the defendants, it could not determine the purpose and content of different meetings between the Violators. (Rybarik Aff. ¶ 188).

         In explaining the limited use of pen register and trap and trace devices, the affidavit states that “[t]elephone analysis, on its own . . . will not reveal detailed information concerning the commission of the Subject Offenses. Nor does such evidence specify the nature, roles, position, or participation of the callers within the conspiracy.” (Rybarik Aff. ¶ 190.) Specifically, the affidavit recalls that during a controlled buy with Tirado Sr. on June 24, 2016, telephone records showed that he was in contact with defendants Tirado Jr., Perez, and Melendez, “[b]ut the toll information, without more, does not reveal additional information regarding which additional conspirators, if any, were involved in the controlled buy.” (Rybarik Aff. ¶ 191.)

         Next, the affidavit stated that using an undercover agent would be unsuccessful because there were no available agents to infiltrate the MLD gang. (Rybarik Aff. ¶ 193.) It further asserted that even if there was an agent available, he would be subjected to physical harm in order to be “jumped” into the gang. (Id.) Furthermore, the affidavit states that it “would take an unreasonably long period of time for such an individual to gain the trust of the subjects and otherwise satisfy the goals of the investigation.” (Id.)

         Moreover, in considering the use of search and consent warrants, the affidavit stated that:

I believe that search warrants executed at this time would likely compromise the investigation by alerting the Violators to the investigation and allowing other identified subjects of the investigation to insulate themselves from detection. For example, law enforcement has not yet ...

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