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United States v. Mosquera-Castro

United States District Court, M.D. Louisiana

January 16, 2020

UNITED STATES OF AMERICA
v.
ARON WINTER MOSQUERA-CASTRO

          RULING AND ORDER

          JOHN W. DEGRAVELLES UNITED STATES DISTRICT JUDGE

         This matter is before the Court on a Motion to Suppress Evidence and Statements (“Motion to Suppress”) filed by Defendant, Aron Winter Mosquera-Castro. (Doc. 508.) In opposition, the Government filed United States' Response in Opposition to Defendant's Motion to Suppress Evidence and Statements. (Doc. 543.) Defendant filed a supplemental Pretrial Memorandum in Support of Franks Hearing in Regards to Defendant's Motion to Suppress Evidence and Statements (“Supplemental Brief”). (Doc. 596.) In response, the Government filed United States' Response to Pretrial Memorandum in Support of Franks Hearing in Regards to Defendant's Motion to Suppress Evidence and Statements. (Doc. 597.) Defendant filed a reply, (Doc. 607) and the Government a surreply (Doc. 613.) The Court held an evidentiary hearing on the Motion to Suppress on September 30, 2019. Following the hearing, Defendant filed a Post-Hearing Memorandum in Support of Motion to Suppress. (Doc. 660.) In response, the Government filed United States' Response to Defendant's Post-Hearing Memorandum in Support of Motion to Suppress. (Doc. 663.) Having considered the facts, the arguments of the parties and the law, and for the reasons set forth below the Court will DENY the Motion to Suppress.

         FACTUAL BACKGROUND

         a. Initial investigation into the drug-trafficking organization

         In September 2015, the Drug Enforcement Administration (“DEA”) initiated an investigation based on a tip from a confidential source that Jason Muse was running a large-scale drug-trafficking organization in Ascension Parish. (Doc. 508-1 at 1.) The source revealed the location of Jason Muse's residence and other properties and stated that he owned a restaurant, MJ's Chicken and Waffles. (Id.). The source also explained that Jason Muse and his wife, Marshall Muse, regularly traveled to Florida to pick up large amounts of cocaine. (Id. at 2.)

         DEA agents began coordinating controlled buys with Jason Muse and Darwin Elphage. (Id. at 2.) They recorded the source's text messages and phone calls with Jason Muse and Darwin Elphage, and recorded conversations with a body recorder. (Id.). Between December 2015 and January 2016, agents met additional confidential sources who corroborated that Jason Muse sold heroin and cocaine in Ascension Parish and revealed other members of the organization, including Herman Jimmerson III and Kevin Boudreaux. (Id.). When Darwin Elphage was incarcerated between December 2015 and January 2016, Ascension Parish sheriff's deputies recorded approximately 20 phone calls between he and Jason Muse, which provided “insight into the organization's methods regarding storage and transport of drugs and money.” (Id. at 3.)

         In November 2015, agents secured warrants for pen registers and trap-and-trace[1]monitoring. (Id.). Agents also conducted telephone toll analysis to monitor the number of communications between Jason Muse, Darwin Elphage, Herman Jimmerson III, Chester Muse, and Ronald Davis. (Id.). A different confidential source identified Santos Mosquera-Candelo as the source of Jason Muse's heroin supply. (Doc. 658 at 13:21-15:1; and 64:16-65:22.) Santos Mosquera-Candelo was added to the targets of the DEA investigation and indexed in the case initiation report. (Doc. 658 at 13:21-15:1 and 67:8-68:22.) A DEA Agent, Agent Timothy Fabre, testified that the DEA agents investigated Santos Mosquera-Candelo but were not able to corroborate the confidential source's statement that he was the source of the heroin supply.[2] (Doc. 658 at 45:20-46:12; 68:25-69:20.)

         In the initial investigation into the Jason Muse drug-trafficking organization, Agent Fabre, explained that Jason Muse and his associates would use counter-surveillance measures that made the investigation difficult. Agent Fabre testified:

We had tried to set up surveillance on his residence which would not work. We got videoed or we believed we were being videoed by an individual across the street. We had tried to follow him on numerous occasions just to see what he did throughout the day, which were not successful. We tried to install a pole camera on one of the businesses, we never got anything out of it. It was not beneficial whatsoever. We tried to exhaust -- we couldn't do trash pulls because of the cameras on his residence and the location, which is something that we try to do if we can. Just those techniques, individual stuff -- some of it the controlled buys worked, but that would only allow us to indict Mr. Muse and Mr. Elphage.

(Doc. 658 at 105:7-19.)

         b. Wiretap authorizations

         Starting in January 2016, federal authorities applied for wiretaps under 18 U.S.C. § 2518(1)(c) and (3)(c). (Doc. 543 at 1-2.) At issue in this matter is the initial application from January 2016. The initial application described the following objectives:

determination of the extent and methods of operation of the drug trafficking organization, the identities of the target subjects (i.e. the one using the phone and the ones speaking to him/her), the receipt and distribution of drugs and money, the locations of money and records, the location of other resources used to finance the operation, and the location of proceeds.

(Doc. 596 at 1-2.) The wiretap application further stated that the supporting affidavit would show that “normal investigative techniques have been tried and have failed or reasonably appear unlikely to succeed if tried or are too dangerous to employ.” (Id. at 2.)

         In support of the wiretap application, Agent Fabre provided an Affidavit in Support of Application (“Wiretap Affidavit”). (Ex. 17.) In the Wiretap Affidavit, Agent Fabre made the following statements: “During the investigation Jason Muse's source of supply has not been identified.” (Ex. 17 at ¶ 5.) Agent Fabre further provided that the target subjects were: “Jason Muse, Darwin Elphage, A.K.A. Zero Elphage, Marshall Muse, Chester Muse, Charlotte Muse, Ronald Davis Brandon Bulot and Herman Jimmerson, A.K.A. Monster.” (Id. at ¶ 7.) (Doc. 658 at 39:11-20.) As to the objective for the wiretap, Agent Fabre stated in the Wiretap Affidavit:

In particular, it is expected that these wire and electronic communications will involve discussions of the target subjects and others yet unknown which will reveal the following: . . . The location and identity of source or sources of supply of heroin and the means, manner and methods by which the heroin is imported, transported and distributed; . . . and the precise nature and scope of these illegal activities, particularly the identity and roles of additional co-conspirators who are not yet identified.

(Ex. 17 at ¶ 18.) The Wiretap Affidavit does not mention Santos Mosquera-Candelo or the confidential source that identified him as Jason Muse's source of heroin supply. (Doc. 658 45:20-46:12.)

         The Wiretap Affidavit details the investigative techniques that the DEA agents considered using or used prior to applying for a wiretap. The investigative techniques discussed include among others: (1) confidential sources; (2) controlled purchases; (3) physical surveillance; (4) pole cameras; (5) undercover agents; (6) search warrants; (7) interviews with subjects or associates; (8) use of Grand Jury subpoenas; (9) trash pulls; (10) tracking devices on vehicles. (Ex. 17 at ¶ 77-109.) The Wiretap Affidavit explains what information was elicited by each technique or why that technique was not successful. (Ex. 17 at ¶ 77.) For example, it lists the confidential sources and explains the role they had in identifying the drug-trafficking organization and participating in controlled buys. (Id. at ¶ 78-80.) It further discusses that one confidential source is unable to participate in a direct buy from the source of supply or to expand his/her influence because of concerns that Jason Muse would grow suspicious and would terminate any contact with the confidential source. (Id. at 83.)

         c. Information gained as a result of the wiretaps

         The wiretap applications were approved and as a result Defendant, Aron Winter Mosquera-Castro was identified as a member of the drug-trafficking organization. (Doc. 543 at 2.) Agent Fabre testified:

Just a few days after we began interceptions we intercepted the Defendant over the line. So we knew we were intercepting what appeared to be or what sounded over the phone as a Columbian. Then we intercepted some messages between an unknown number and Mr. Muse about him calling Poppa. So that's when we had determined -- we knew Poppa -- Santos was a Columbian. That apparently his nickname was referred to as Poppa by Agent Lusco's CS. Also Agent Lusco knew him as Poppa. Once we were able to confirm that, then we began to believe that he was possibly Jason Muse's source of supply.

(Doc. 658 at 77:9-19.) Therefore, as a result of the wiretap interceptions, Defendant Aron Winter Mosquera-Castro was ultimately arrested and charged as one of the conspirators.

         d. The Hearing

         The Court held a hearing on the Motion on September 30, 2019 at which Agent Fabre testified. After Defendant rested his case in chief, the Government reasserted its position that Defendant had not met its burden to show that a Franks hearing was appropriate. (Doc. 658 at 61:20-62:3.)

         Agent Fabre was questioned about the inconsistency between the case initiation report that listed Santos Mosquera-Candelo as Jason Muse's source of heroin supply and the statements in the Wiretap Affidavit that “During the investigation Jason Muse's source of supply has not been identified.” (Ex. 17 at ¶ 5.) Agent Fabre explained that he did not include the information regarding Santos Mosquera-Candelo because he had no other information to corroborate that Santos Mosquera-Candelo was involved with the Jason Muse drug-trafficking organization.[3] (Doc. 658 at 59:14-60:20.) He testified that he did not list Santos Mosquera-Candelo because:

Agent Lusco had no knowledge -- when I asked him if he even knew who Jason Muse was he had no knowledge of Jason Muse, didn't know anything about him. Agent Lusco had worked an investigation on Candelo back in -- and I don't want to be wrong on the date -- but I'll say back in the late '90s. They, according to him, what he told me, the investigation, Mr. Candelo made them on surveillance, disappeared into the wind. The case went cold. They didn't hear anything from him or about him and then he told me in around 2005, I believe, or some time in the mid 2000's, he heard that Candelo had got arrested trying to transport a kilo of cocaine to Baton Rouge and he said to the last of his knowledge he believed he had got deported back to Columbia. So based -- his CS that he provided stated - I never spoke to that CS prior to the telephone interview -- stated that Mr. Poppa was his nickname and he knew - I believe he knew his first name, Santos, was his source. Agent Lusco had worked the investigation before. So I took what the CS said, that it was his source. We asked agents in Ascension, we asked other narcotics agents, we asked our CS-1 at the time if they knew -- ever heard of somebody named Poppa or Santos or Candelo and nobody -- the agents from Ascension said they haven't heard from him in years. It had been since back after Agent Lusco's investigation. Nobody had heard from him. That he hadn't been around. On the scale of narcotics' trafficking that Agent Lusco described that Mr. Candelo was doing at the time in the late '90s, it would be hard for him to be dealing in this area, dealing that large of quantities, and nobody hear about him. So I could not confirm that or validate that information to put it in my affidavit.

(Doc. 658 at 59:14-60:20.)

         Further Agent Fabre explained that unlike the Wiretap Affidavit, in which he only included information he could corroborate, he included Santos Mosquera-Candelo in the case initiation index because:

That way if -- because Agent -- after Agent Lusco told us that he had never heard of Jason Muse but that he had heard of Mr. Candelo, he told us about his investigation into Mr. Candelo. Upon telling us that, but he said he had not heard or seen him or any word of him since mid 2000's. So I put him in here in case another agency, whether it be down in New Orleans or Houston, anybody else happen to be working him, they would pick up the phone and call. And the statement that was made was just a statement that Agent Lusco provided him during the debriefing, that he was the heroin source of supply for Mr. Muse.

(Doc. 658 at 67:8-68:2.)

         Agent Fabre also detailed that leaving Santos Mosquera-Candelo out of the Wiretap Affidavit was not helpful. He stated that he wished he could have included the information:

Because it shows -- it shows the court more due diligence in our investigation, plus having Mr. Candelo being a Columbian source of supply would have opened up, through our channels at DEA, more funding, more resources that would come available. When we can reach into another country we tend to get a bigger pool of financial aid to pull from to help us out, so it's not something I would want to withhold.

(Doc. 658 at 72:2-73:1.) In addition, Agent Fabre stated that including that information would have strengthened the wiretap application with ...


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