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United States v. Machado-Galeana

United States District Court, M.D. Louisiana

October 13, 2017





         Before the Court are three motions that seek to suppress evidence obtained through the use of wiretaps (the “Wiretap Motions”). The first Wiretap Motion, styled as a “Motion to Suppress Evidence Seized Through Wiretaps, ” was filed by defendant Oscar Arturo Machado-Galeana's current attorney, Martin E. Regan. (“Machado-Galeana's Motion, ” Doc. 416). The second Wiretap Motion, styled as a “Motion to Suppress Wiretap Evidence, ” was filed by Machado-Galeana's former attorney, Rusty M. Messer.[1] (Doc. 419). The third Wiretap Motion, styled as a “Motion to Suppress Evidence Seized Through Wiretaps, ” was filed on behalf of defendant Roy Martin Herrera Romero (collectively with Machado-Galeana, “Defendants”). (“Romero's Motion, ” Doc. 395). The Government opposes, (“Opposition, ” Doc. 435), and, on April 11, 2017, the Court held a hearing on the Wiretap Motions, (Doc. 450; see also Doc. 453 (“Hrg. Tr.”)). Machado-Galeana, Romero, and the Government have also filed post-hearing memoranda in further support of their positions. (Docs. 461, 457, and 460, respectively).

         After careful consideration of the law, the facts of this case, and the parties' arguments, for the reasons set forth below, the Wiretap Motions are DENIED.


         A. The First Wiretap Application

         In November 2014, the Government filed an application to intercept wire and electronic communications occurring over cellular telephone number (225) 485-1386, used by Alexander P. Nava. (See Doc. 435-1 at 1-2). Chief Judge Brian A. Jackson approved the application, authorizing a thirty-day period in which to intercept communications. (See Id. at 12, 75). Attached to the application was the supporting affidavit of Charles Scott Courrege, a Task Force Officer with the Drug Enforcement Administration (“DEA”). (Id. at 18). Courrege's affidavit described the following background:[2]

         On June 18, 2014, a cooperating source (“CS”) who has provided information to the DEA since 2014 contacted an undercover agent (“UC-1”), telling UC-1 that the CS would introduce UC-1 to Nava, who was known to sell methamphetamine and was looking for customers in the Baton Rouge area. (Id. at 28-29). Later that day, the CS phoned UC-1 and introduced Nava, and Nava told UC-1 that he could supply UC-1 with “any quantity of methamphetamine he wished to purchase.” (Id. at 29). Nava quoted prices to UC-1 and told UC-1 to contact him at (225) 485-1386 if he wished to purchase methamphetamine. (Id. at 29-30).

         On June 24, 2014, UC-1 called Nava and negotiated the purchase of an ounce of methamphetamine. (Id. at 30-31). Nava agreed to meet UC-1 at a gas station to conduct the sale, and UC-1 and another undercover agent (“UC-2”) met Nava at the gas station and conducted the sale. (Id. at 31-32). Based upon information later obtained via subpoena, during the sale Nava contacted a phone with telephone number (225) 384-1879, for which Machado- Galeana was listed as the subscriber. (Id. at 32). Agents also later located a car that Nava had used during the transaction; according to DMV information, at the time when the car was located it was parked at Machado-Galeana's residence near a car that Machado-Galeana owned. (Id. at 31, 33).

         On July 9, 2014, UC-1 called Nava and negotiated the purchase of two ounces of methamphetamine at the same gas station. (Id. at 33). Before the meeting occurred, Nava informed UC-1 that his “cousin” would deliver methamphetamine on his behalf. (Id. at 34). Machado-Galeana later arrived at the gas station and conducted the sale. (Id.).

         On July 11, 2014, Magistrate Judge Stephen Riedlinger signed an order authorizing the activation of a pen register on the (225) 485-1386 telephone. (Id. at 35).

         On July 28, 2014, Nava and UC-1 negotiated a sale of two ounces of methamphetamine, plus an additional ounce to be paid for later. (Id. at 36). UC-1 and UC-2 went to the gas station, where Machado-Galeana later arrived and conducted the sale. (Id. at 36-37).

         On August 18, 2014, Nava and UC-1 negotiated a sale of methamphetamine. (Id. at 39). During the course of their conversation, Nava texted UC-1 to say “U know? U dealing with the cartel now? U still want to do it[?]” (Id.). After UC-1 and UC-2 arrived at the gas station, Nava called UC-1 and asked UC-1 to follow him to another location. (Id. at 40). Nava and Machado-Galeana then arrived at the gas station, and UC-1 and UC-2 followed them to a convenience store, where the sale was ultimately conducted. (Id. at 40-41).

         On September 2, 2014, Nava and UC-1 negotiated a sale of methamphetamine, which occurred at the same convenience store in the presence of Nava and Machado-Galeana. (Id. at 41-45). During the sale, UC-1 used an undercover vehicle that had a “trap, ” i.e., a hidden compartment used to conceal drugs and money, installed in the trunk; he later asked Nava to let him know if Nava was “interested in [a] trap install.” (Id. at 43-45).

         On September 24, 2014, UC-1 contacted Nava and arranged to pay for methamphetamine that had previously been “fronted” to UC-1. (Id. at 45). UC-2 met Nava at the gas station, provided Nava with money owed, and discussed future methamphetamine sales. (Id. at 45-46).

         In addition to this background, Courrege's affidavit contained a section discussing why a wiretap was necessary, i.e., why “normal investigative techniques” had failed to fully achieve the investigation's objectives, were unlikely to succeed if tried, or were too dangerous to be tried. (Id. at 53).

         With respect to confidential sources, Courrege represented that confidential sources normally have “limited information, either furnished by a subject or learned secondhand from others, ” and that information provided by confidential sources would not result in a successful prosecution of all members of the drug trafficking operation. (Id. at 53). The sole CS developed in the case provided “valuable” information but did not have “enough access” to Nava, the CS could not advise agents about pending deliveries or the transportation of methamphetamine, and the CS had “no involvement” with narcotics trafficking. (Id. at 53-54). The CS was a “mere acquaintance” of Nava's and was not able to spend time around Nava to gain information or meet other members of the organization. (Id. at 54). The CS also had no information about money laundering activities conducted by Nava's organization. (Id. at 55). The CS was willing to testify at trial, but, absent evidence gathered via wiretap, the CS's testimony would be insufficient to convict all members of the organization. (Id. at 55-56).

         With respect to controlled purchases, Courrege represented that the controlled purchases that had already been performed were useful, but they were “limited to what [was] occurring only at the time and place of the controlled purchase.” (Id. at 56-57). Controlled purchases provided evidence against Nava, Machado-Galeana, and anyone who assisted them during the purchase, but did not reveal evidence identifying suppliers, locations where drugs were kept or hidden, and methods of delivery or transportation. (Id. at 56-57).

         With respect to physical surveillance, Courrege represented that physical surveillance is generally used to “confirm meetings and other suspected criminal activity, ” but it provides insufficient evidence to prove the purpose of these meetings and activities. (Id. at 57). However, when physical surveillance is combined with a wiretap, “the purpose of meetings takes on a new significance.” (Id.). The subjects of this investigation are “extremely cautious” and aware of law enforcement surveillance, and they actively conduct counter-surveillance and “heat checks” to determine whether they are the subjects of physical surveillance. (Id. at 57-58). Courrege provided a few examples of “heat checks” and other counter-surveillance that Machado-Galeana and other persons associated with Nava had engaged in. (Id. at 58-60). While conducting physical surveillance, officers had also stopped a Ford F-150 truck associated with Machado-Galeana but had obtained little useful information, and further stops would risk alerting Nava and Machado-Galeana to the presence of law enforcement. (Id. at 61). However, physical surveillance conducted in conjunction with electronic surveillance would “achieve the objectives of the investigation and lead to the seizure of drugs and assets.” (Id. at 62).

         With respect to undercover agents, Courrege represented that undercover agents had successfully purchased large quantities of drugs from Nava and Machado-Galeana. (Id. at 62). However, there was “no evidence” that conducting additional purchases through undercover agents would permit agents to “move beyond” Nava and Machado-Galeana. (Id.). Courrege noted particularly that Nava had stated that he could provide up to ten pounds of methamphetamine at a time and that intelligence gathering after buys had been limited for similar reasons to those previously described with respect to confidential sources. (Id.).

         With respect to search warrants, Courrege represented that a single search warrant to install a GPS device on a vehicle had been executed during the investigation. (Id.). Although additional search warrants might provide “some evidence” of criminal activity, they would not be effective at achieving the overall goals of the investigation. (Id. at 62-63). Particularly, search warrants for locations used during the controlled purchases might result in the arrests of Nava and Machado-Galeana, but they would likely not result in the arrest of unidentified suppliers. (Id. at 63). Based upon Courrege's experience, Mexican nationals are “not likely” to cooperate following arrest, and the arrest of Nava and Machado-Galeana would probably not lead to the identification of other members of the organization. (Id.). A search warrant also might be rendered more effective in conjunction with a wiretap: intercepted communications could inform agents about the current location of contraband, and a search warrant could follow immediately. (Id.). Obtaining prior electronic communications is similarly an inadequate substitute for real-time interception, as information is received too late to make “adequate enforcement decisions” and direct agents to specific locations. (Id. at 64).

         With respect to interviews, Courrege represented that no known members of the organization had been arrested, and interviews would produce insufficient information concerning the identities of all the persons involved in the conspiracy, sources of drugs, financing of drug purchases, and the identities of larger cocaine suppliers. (Id. at 64-65). Responses to interview questions would likely contain “a significant number of half-truths and untruths” that could divert or frustrate the investigation. (Id. at 65). Interviews would also risk alerting members of the conspiracy about the investigation. (Id.).

         With respect to grand jury subpoenas, Courrege represented that subjects called to testify may invoke their Fifth Amendment privilege, grand jury immunity might foreclose prosecution of the most culpable people, and most of the individuals identified during the investigation participate in illegal activities and would likely lie under oath. (Id.). Courrege was not aware of any person who could be subpoenaed to provide “significant and truthful evidence” to prove the crimes identified, and the use of grand jury techniques would alert conspirators to the existence of the investigation and lead them to be “more circumspect” in their conduct. (Id.).

         With respect to trash searches, Courrege represented that evidence obtained from such searches would not be sufficient to prosecute Nava and Machado-Galeana or their sources of supply and co-conspirators. (Id. at 66). There are also “great risks” associated with conducting trash searches, as Machado-Galeana's residence is in a high-crime neighborhood and neither Machado-Galeana's house nor Nava's house provide adequate cover and concealment to attempt trash searches. (Id.). The convenience store is located in a shopping center; because trash in shopping centers was often intermingled from several business, a trash search of the convenience store is unlikely to result in useful evidence. (Id.). Additionally, if agents were discovered conducting a trash search, it might be mistaken for illegal activity, and the investigation could be compromised and agents might be placed in danger. (Id. at 67).

         With respect to other investigative techniques, Courrege represented that a GPS tracking device had been used in this investigation, but GPS location information only alerts agents that a vehicle may be located in an area used by members of a criminal organization. (Id. at 67). It does not inform the agents of who is present and what activity is occurring. (Id.). Since the GPS tracking device was installed in this investigation, the vehicle upon which it was installed had traveled to Lafayette, Louisiana and had not returned. (Id.). Machado-Galeana had been observed driving four vehicles since the investigation began, and the likelihood of agents being discovered installing a tracking device was “great.” (Id.). Some of the vehicles being used had temporary registrations, and agents had not been able to establish their use until after a drug sale. (Id.).

         According to Courrege, agents had also installed a closed circuit television camera near Machado-Galeana's likely residence, but it was not in a position to “capture the exact apartment, ” and agents could only view parking lots near the building. (Id. at 68). There was “heavy” pedestrian traffic in the area, making it difficult to determine who may be affiliated with the organization. (Id.). All known transactions had occurred away from the residence, and the camera only had an outside view of the residence. (Id.).

         A second closed circuit camera had been installed near the convenience store, but agents had been unable to determine whether activity observed was illegal or the “nature of the business inside.” (Id.).

         With respect to pen registers and other less intrusive forms of electronic monitoring, Courrege represented that pen register and trap and trace devices had been used in this investigation and would be used on an ongoing basis. (Id. at 69). However, these techniques provide lists of phone numbers of incoming and outgoing calls, but they do not establish the identities of all persons called or the content of conversations described. (Id.). Additionally, narcotics traffickers often purchase prepaid phones that are not required to ...

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