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United States v. Tirado

United States District Court, E.D. Wisconsin

April 16, 2018

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

          DECISION AND ORDER

          LYNN ADELMAN, DISTRICT JUDGE.

         The government obtained an indictment charging 24 defendants with conspiracy to distribute controlled substances and related offenses. The defendants filed a number of pre-trial motions, and on January 26, 2018, the magistrate judge handling pre-trial proceedings in this case issued an order, report and recommendation. Eight defendants have filed objections.[1]

         The district court reviews de novo objections regarding dispositive pre-trial motions, including motions to suppress evidence, see Fed. R. Crim. P. 59(b), but will set aside a magistrate judge's order on a non-dispositive matter, including motions seeking severance, disclosure, or a bill of particulars, only if it is contrary to law or clearly erroneous, see Fed. R. Crim. P. 59(a). For the reasons that follow, I overrule the objections, adopt the magistrate judge's recommendations, deny defendants' motions to suppress, and decline to set to aside the magistrate judge's orders on the non-dispositive motions.

         I. MOTIONS TO SUPPRESS

         A. Title-III Intercepts

         Defendants Perez, Johnson, Tirado Sr., Dumas, Sorenson, Tirado Jr., Guajardo, Reyes, Minkey, and Sorenson filed motions to suppress evidence obtained pursuant to two Title-III wiretap orders, raising a variety of arguments, which the magistrate judge rejected. (R. 454 at 2-18.) Defendants Tirado Sr., Johnson, Guajardo, Perez, Tirado Jr., Minkey, and Reyes object.

         Defendants primarily argue that the wiretap applications failed the so-called “necessity” requirement. See 18 U.S.C. § 2518(1)(c) (indicating that a wiretap application must include “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous”). “Despite its name, the 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.” United States v. Mandell, 833 F.3d 816, 821 (7th Cir. 2016) (internal quote marks omitted). The Seventh Circuit has explained that the government's burden “is not great” and that the requirement of exhausting other investigative procedures prior to obtaining a wiretap is reviewed in a “practical and commonsense fashion.” Id. (internal quote marks omitted).

         As the magistrate judge noted, the applications in this case discussed in detail why conventional techniques would be unsuccessful and/or too risky. The applications covered the serious danger to informants, the difficulty in introducing an undercover agent, and the limited usefulness of physical/video surveillance, pen/trap orders, search warrants, financial investigations, and trash pulls. (R. 454 at 10-14.) Defendants argue that these averments were conclusory and would allow a wiretap in any drug conspiracy case, but this overlooks the specific threats made against informants in this case (id. at 11), the specific counter-surveillance measures this group employed (id. at 11-12), and the close ties between the alleged conspirators, some of whom were related, making it difficult to introduce an outsider (id. at 13).

         Johnson notes that the informants were not actually harmed (R. 467 at 4), but the statute speaks of risk; it does not require than a cooperator be beaten or killed before a wiretap may be authorized. Johnson further notes that the informants were able to provide a substantial amount of information (id. at 4-5), but the affidavit reasonably averred that more information was needed to accomplish the goals of the investigation. See United States v. Goodwin, 496 F.3d 636, 640 (7th Cir. 2007) (finding necessity requirement satisfied where the government initially had success using confidential informants but those informants could not identify all suppliers, distributors, and storage locations); United States v. McLee, 436 F.3d 751, 763 (7th Cir. 2006) (“We have upheld the necessity of wiretap orders on the basis that investigators were having trouble fingering other members of the conspiracy, and that the wiretaps allowed the government to ascertain the extent and structure of the conspiracy.”) (internal citations and quote marks omitted).[2] Finally, Johnson notes that the government was able to obtain a significant amount of information from the use of pole cameras. (Id. at 5-6.) But the affidavit explained the limited utility of that surveillance, which did not permit the agents to see what went on inside the home. (R. 454 at 12.)

         Johnson and Perez challenge the wiretap orders' inclusion of “background conversations intercepted in the vicinity of the target telephone” (R. 467 at 7; R. 471 at 8), but they cite no case finding this standard language suspect. As the magistrate judge noted, two circuits have rejected similar challenges. (R. 454 at 17, citing United States v. Gordon, 871 F.3d 35 (1st Cir. 2017); United States v. Oliva, 705 F.3d 390 (9th Cir. 2012).).

         Guajardo and Perez argue that the affidavits contained false statements, entitling them to a Franks hearing. See Franks v. Delaware, 438 U.S. 154 (1978). In order to obtained a Franks hearing, the defendant must make a substantial preliminary showing that: (1) the affidavit contained a material false statement; (2) the affiant made the false statement intentionally, or with reckless disregard for the truth; and (3) the false statement was necessary to support the finding of probable cause. United States v. Dessart, 823 F.3d 395, 402 (7th Cir. 2016). Franks hearings are rarely held because these elements are hard to prove.[3] Id.

         Perez argues the affidavit falsely stated that the use of informants was “too risky” when in fact agents successfully employed cooperators up until the date of the defendants' arrests. (R. 471 at 2.) Defendants disagree with the affiant's opinion regarding the degree of risk posed to the informants, but this does not make his statement false.

         Guajardo and Perez raise questions about the veracity of certain statements relayed to law enforcement and included in the affidavits (R. 468 at 3-4; R. 471 at 3), but the standard is not whether the affidavit contains a false statement but whether the affiant knew, or should have known, that the statement was false. See United States v. Jones, 208 F.3d 603, 607 (7thCir. 2000) (“The fact that a third party lied to the affiant, who in turn included the lies in a warrant affidavit, does not constitute a Franks violation. A Franks violation occurs only if the affiant knew the third party was lying, or if the affiant proceeded in reckless disregard of the truth.”) (internal quote marks omitted). The defendants have presented no evidence regarding the affiant's state of mind, as it is their burden to do.[4] E.g., United States v. McNeese, 901 F.2d 585, 594 (7th Cir. 1990).

         Guajardo argues that the affiant should have conducted further investigation regarding the alleged murders of two MLD gang members, referenced in the affidavit (R. 468 at 5), but a claim that investigators “should have done more work” does not meet “the high standard required for convening a Franks hearing.” United States v. Swanson, 210 F.3d 788, 791 (7thCir. 2000). Perez also argues that this statement was false based on facts set forth in a Wisconsin supreme court decision issued in 2017. (R. 471 at 6.) As the government explains in its response, the differences between the facts set forth in the opinion and the facts in the affidavit are minor.[5] (R. 485 at 13-14.) Moreover, defendants present no evidence that the affiant knew or should have known the information he presented was wrong.

         Guajardo and Perez also fault the affiant for failing to advise the issuing judges that, after he threatened one of the informants, Tirado Sr. said, “I'm just playing.” (R. 468 at 4, 6; R. 471 at 3.) As the magistrate judge explained, the circumstances of this encounter were quite intimidating. (R. 454 at 8.) It is hard to see how inclusion of this statement would change one's perception of the encounter from a serious threat to a “playful prank.”[6] (R. 468 at 6.) In any event, given the extensive averments set forth in the affidavits, inclusion of this statement would not have defeated the necessity showing. See United States v. McDuffy, 636 F.3d 361, 363 (7th Cir. 2011) (“To obtain a Franks hearing [the defendant must] make a substantial preliminary showing that the omission was reckless or intentional, and that curing it would defeat probable cause[.]”).

         For these reasons and those stated in the magistrate judge's report, defendants' motions to suppress the ...


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