U.S. v. Mullen

Full title: UNITED STATES of America, v. Richard MULLEN, Joseph Hargrave, Robert…

Court: United States District Court, W.D. New York

Date published: Sep 15, 2006

451 F. Supp. 2d 509 (W.D.N.Y. 2006)

Opinion

No. 04-CR-189A.

September 15, 2006

Kathleen M. Mehltretter, Acting United States Attorney, Mary C. Kane, of Counsel, Buffalo, NY, Attorney for the Government.

Leigh E. Anderson, Esq., Buffalo, NY, Attorney for Defendant Richard Mullen.

Law Office of David J. Seeger, David J. Seeger, of Counsel, Buffalo, NY, Attorneys for Defendant Richard Mullen.

Joseph J. Terranova, Esq., Hamburg, NY, Attorney for Defendant Frederick Nolley.

Loren D. Lobban, The Bullard Lobban Law Group, Buffalo, NY, Attorney for Defendant Efrim K. Richardson.

Sean Dennis Hill, Esq., Buffalo, NY, Attorney for Defendant Michael Stranc.

Cohen Lombardo, P.C., Robert N. Convissar, of Counsel, Buffalo, NY, Attorneys for Defendant Andre Hall.

Terry Granger, Esq., Buffalo, NY, Attorney for Defendant Durrian Pressley.

Matthew P. Pynn, Esq., Lockport, NY, Attorney for Defendant Yolanda Windley.

Joseph Mistrett, Federal Public Defender, John F. Humann, Assistant Federal Public Defender, Buffalo, NY, Attorney for Defendant LaWanda D. Edmond.

Martin L. Schmukler, Esq., New York, NY, Attorney for Defendant Joseph Hargrave.

Anne E. Adams, Esq., Buffalo, NY, Attorney for Defendant Edward Hearst.

Robert M. Goldstein, Esq., Buffalo, NY, Attorney for Defendant Kevin Weeks.

Nelson S. Torre, Esq., Buffalo, NY, Attorney for Defendant Larry Sanger.

Horace A. Hutson, Esq., Buffalo, NY, Attorney for Defendant Maure Graham.

John K. Jordan, Esq., Buffalo, NY, Attorney for Defendant Willie Morrison.

Joseph M. LaTona, Esq., Buffalo, NY, Attorney for Defendant Robert Adams.

Angelo Musitano, Esq., Niagara Falls, NY, Attorney for Defendant Joseph Wilkie.

Law Office of J. Glenn Davis, J. Glenn Davis, of Counsel, Buffalo, NY, Attorney for Defendant Justin Palmer.

Judith M. Kubiniec, Esq., Buffalo, NY, Attorney for Defendant Debbie Drake.

Craig Dexter Hannah, Esq., Buffalo, NY, Attorney for Defendant Terrance Askew.

Alan S. Hoffman, Esq., Buffalo, NY, Attorney for Defendant Ameer McKnight.

Labin Buffomante, Richard R. Shaw, II, of Counsel, Williamsville, NY, Attorney for Defendant Douglas McPeek.

Herbert R. Johnston, Jr., Esq., Buffalo, NY, Attorney for Defendant Kwaine Davis.

John W. Dorn, Esq., Amherst, NY, Attorney for Defendant Marvin West.

Lawrence J. Desiderio, Esq., Buffalo, NY, Attorney for Defendant Ross Cooper.

LoTempio Brown, Frank L. LoTempio, Jr., of Counsel, Buffalo, NY, Attorneys for Defendant Jerome Davis.

Rosenthal, Siegel, Muenkel Maloney, LLP, Cheryl Meyers-Buth, of Counsel, Buffalo, NY, Attorneys for Defendant Ayanna Nolley.

Lee Charles LaMendola, Esq., Buffalo, NY, Attorney for Terry Mullen.

Burgett Robbins, Robert A. Liebers, of Counsel, Jamestown, NY, Attorneys for Defendant Christina Turner.

David Gerald Jay, Esq., Buffalo, NY, Attorney for Defendant Robin Gilmore.

Allan P. McCarty, Esq., Hamburg, NY, Attorney for Defendant Tiffiani Jackson.

Kevin P. Shelby, Esq., Williamsville, NY, Attorney for Defendant Ramona Watson.

John J. Molloy, Esq., West Seneca, NY, Attorney for Defendant Howard Degree.

Michael J. Stachowski, Esq., Buffalo, NY, Attorney for Defendant Kenya Lee.

Andrew C. LoTempio, Esq., Buffalo, NY, Attorney for Defendant Eric Amidon.

Lipsitz, Green, Fahringer, Roll, Salisbury Cambria, Paul J. Cambria, Jr., of Counsel, Buffalo, NY, Attorneys for Defendant Ronnie Funderburk.

ORDER

RICHARD ARCARA, District Judge

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(A), on October 19, 2005. Defendants filed omnibus motions seeking inter alia suppression of evidence, dismissal of the Second Superseding Indictment, a bill of particulars and other discovery.

On February 24, 2006, Magistrate Judge Foschio filed a Report and Recommendation, recommending that defendants' motions for dismissal of the indictment and for suppression of evidence should be denied. On that same date, Magistrate Judge Foschio filed a Decision and Order denying in part and granting in part the defendants' motions for a bill of particulars and other discovery.

Defendants Adams and Hargrave filed objections to Magistrate Judge Foschio's Report and Recommendation. Defendant Adams also filed an appeal of Magistrate Judge Foschio's Decision and Order. The Court heard argument on the objections on August 15, 2003.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing oral argument, the Court adopts the proposed findings of the Report and Recommendation.¹ Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendants' motions to dismiss and to suppress evidence are denied.

1 Contrary to Magistrate Judge Foschio's determination on page 19 of the Report and Recommendation, defendant Adams does have standing to challenge the Richardson Order as he was a party to conversations intercepted under that order. Nevertheless, the Court finds that Adams' motion to suppress electronic surveillance evidence should be denied for the reasons stated in Magistrate Judge Foschio's Report and Recommendation.

Pursuant to 28 U.S.C. § 636(b)(1)(A), the district court "may reconsider any pretrial matter under this [section] where it has been shown that the magistrate's order is clearly erroneous or contrary to law." The Court has reviewed defendant Adams' objections and Magistrate Judge Foschio's Decision and Order. Upon such review and after hearing argument from counsel, the Court finds that Magistrate Judge Foschio's Decision and Order is neither clearly erroneous nor contrary to law. Accordingly, the Court affirms Magistrate Judge Foschio's Decision and Order.

The case is referred back to Magistrate Judge Foschio for further proceedings.

IT IS SO ORDERED.

REPORT and RECOMMENDATION

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This case was referred to the under-signed by the Hon. Richard J. Arcara on October 19, 2005 for all pretrial matters. The matter is presently before the court for a report and recommendation on Defendants' motions seeking suppression of evidence and as to Defendants Pressley, Edmond and Hargrave, seeking dismissal of the Second Superseding Indictment (Doc. Nos. 130, 132, 137-141, 142-146, 150-152, 154, 172, 182 and 189).

BACKGROUND

Defendant Richard Mullen and six others, including co-defendants Frederick Nolley, Richardson, Edmond, Stranc, Pressley and Hall, were initially indicted in a five count indictment on July 29, 2004, charging violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 843(b), 846, 848(a), and 18 U.S.C. § 2. (Docket Item No. 1). Specifically, Defendant Richard Mullen is alone charged in Count 1 of the Indictment with knowingly, willfully, intentionally and unlawfully engaging in a continuing criminal enterprise of which he allegedly organized, supervised, and managed, and from which he allegedly obtained substantial income and resources, in violation of 21 U.S.C. § 848 ("Count 1" or "the CCE Count"). Defendants Richard Mullen, Frederick Nolley, Richardson, Stranc, Hall, Pressley and Edmond were charged with conspiracy to possess with intent to distribute, and to distribute, five kilograms or more of cocaine in violation of 21 U.S.C. § 846 ("Count 2" or "the Conspiracy Count"); Defendants Richard Mullen, Frederick Nolley and Edmond were charged with knowingly, intentionally and unlawfully possessing with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. § 841 ("Count 3"); and Defendants Richard Mullen, Frederick Nolley, Stranc and Edmond were charged with knowingly, intentionally and unlawfully possessing with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841 ("Count 4"). Additionally, Defendant Hall was charged in Count 5 of the Indictment with knowingly, intentionally, and unlawfully possessing with intent to distribute and distribute five grams or more of cocaine in violation of 21 U.S.C. § 841 ("Count 5").

In a Superseding Indictment, filed January 20, 2005, Defendants Windley, Hargrave, Hearst, Weeks, Sanger, Graham, Morrison, Adams, Wilkie, Palmer, Drake, Askew, McKnight, Douglas McPeek, K. Davis, West, Cooper, J. Davis, Ayanna Nolley, Terry Mullen, Turner, Gilmore, Jackson, Watson, Degree, Lee, and Amidon were added as defendants under the Conspiracy Count. (Docket Item No. 52).^1a A Second Superseding Indictment ("the Indictment"), filed on April 28, 2005, added Defendant Funderburk to the Conspiracy Count. (Docket Item No. 116).

1a These Defendants, along with six others, were originally charged by complaint filed August 2, 2004 with violations of 21 U.S.C. §§ 842(a)(1), 843(b), 846. (Doc. No. 1).

By order dated February 4, 2005, June 1, 2005 was established as the deadline for filing all pretrial motions, both dispositive and non-dispositive. (Docket Item No. 81) ("the Scheduling Order"). In accordance with the Scheduling Order, the following motions were filed: Richard Mullen on June 1, 2005 (Docket Item No. 150) ("Eoannou Affirmation"), Frederick Nolley on July 1, 2005 (Docket Item No. 172) ("Terranova Affirmation"), Efrim Richardson on June 1, 2005 (Docket Item No. 145) ("Lobban Affidavit"), Durrian Pressley on June 1, 2005 (Docket Item No. 140) ("Pressley's Motion"), LaWanda Edmond on June 2, 2005 (Docket Item No. 154) ("Humann Affirmation"), Joseph Hargrave on June 2, 2005 (Docket Item No. 152) ("Schmukler Affirmation"), Larry Sanger on May 27, 2005 (Docket Item No. 130) ("Torre Affidavit"), Robert Adams on June 1, 2005 (Docket Item No. 142) ("LaTona Affidavit"), Justin Palmer on May 30, 2005 (Docket Item No. 132) ("Palmer Motion"), Debbie Drake on June 1, 2005 (Docket Item No. 151) ("Drake Motion"), Ross Cooper on June 1, 2005 (Docket Item No. 143) ("Desiderio Affirmation"), Ayanna Nolley on June 1, 2005 (Docket Item No. 138) ("Meyers-Buth Affidavit"), Ameer McKnight on May 31, 2005 (Docket Item No. 137) ("Hoffman Affidavit") and on June 1, 2005 (Docket Item No. 141) ("Hoffman Supplemental Affidavit"), Terry Mullen on June 30, 2005 (Docket Item No. 182) ("LaMendola Affidavit"), Kenya Lee on June 1, 2005 (Docket Item No. 139) ("Stachowski Affirmation"), Michael Stranc on June 1, 2005 (Docket Item No. 144) ("Stranc Motion"), and Ronnie Funderburk on July 15, 2005 (Docket Item No. 189) ("Funderburk's Motion") ("Moving Defendants").²,³,⁴,⁵,⁶ The Government was directed to file its response to such motions by August 31, 2005.

2 Defendant Stranc entered a guilty plea on December 16, 2005. (Docket Item No. 285).

3 Included in these motions are requests for certain non-dispositive relief which are addressed in a Decision and Order filed contemporaneously with this Report and Recommendation.

4 Although Defendants' motions request a variety of relief, most of Defendants' requests are generalized and only some Defendants provide substantive arguments in support of certain requests. Additionally, Defendants Richard Mullen, Adams, Frederick Nolley, Terry Mullen, Edmond, Hargrave, Pressley, Cooper, Lee, Palmer, Richardson, McKnight and Funderburk request to join in motions made by their co-Defendants. Defendants Ayanna Nolley and McKnight make particular requests to join in their co-Defendants' motions regarding objections filed to the electronic surveillance conducted by law enforcement. Accordingly, the court considers these Defendants as having requested the same relief insofar as each Defendant has standing to make such a request and the relief requested is sought by other Defendants. To facilitate the court's consideration, references to motion papers filed by specific Defendants will be made only with regard to Defendants who provided substantive arguments in support of their respective requests.

5 Defendants Andre Hall, Edward Hearst, Kevin Weeks, Maure Graham, Joseph Wilkie, Terrance Askew, Douglas McPeek, Kwaine Davis, Jerome Davis, Christina Turner, Tiffiani Jackson, Ramona Watson, Howard Degree and Eric Amidon filed no pretrial motions.

6 Defendants Askew, West, Gilmore, Windley and Cooper were dismissed from the case on November 7, 2005, July 14, 2005, August 30, 2005, May 19, 2005 and January 24, 2006, respectively. Accordingly, the court considers all pretrial motions filed by Defendant Cooper to be withdrawn. Defendant Morrison, who had been a fugitive, was arraigned on January 10, 2006.

On August 30, 2005, the court granted the Government's request for an extension to file its response to Defendants' motions not later than September 2, 2005. (Docket Item No. 216). On September 2, 2005, the Government filed the Government's Response to Omnibus Motion in response to Defendants' motions. (Docket Item No. 223) ("Government's Response"). As noted, oral argument was conducted on October 11, 2005.⁷ On February 13, 2006, in response to the court's request for clarification of the Government's Response, the Government filed a Supplemental Response to Government's Response to Defendant's Omnibus Motions. (Doc. No. 328) ("Government's Supplemental Response").

7 Defendant Richard Mullen's motion to dismiss, filed on November 23, 2005 (Docket Item No. 273), is addressed in a separate Report and Recommendation.

Defendants' motions include requests for suppression of Title III evidence, suppression of evidence obtained pursuant to various search warrants issued on August 2 and 3, 2004, suppression of evidence seized pursuant to a vehicle stop in Kansas and subsequent warrantless search of several Defendants in March 2003, suppression of post-arrest statements made by Defendants Funderburk and Palmer, a hearing pursuant to Franks v. Delaware, and dismissal of Count 2 of the Indictment. Based on the following, Defendants' motions should be DENIED in part, and DISMISSED as moot in part.

FACTS ⁸

8 Taken from the pleadings and papers filed in this action.

The charges in the Indictment arise from an investigation conducted by the Drug Enforcement Agency ("DEA") of an alleged cocaine possession and distribution conspiracy. Defendants Richard Mullen, Frederick Nolley, Richardson, Edmond, Stranc, Pressley, Hall, Hargrave, Hearst, Weeks, Sanger, Graham, Adams, Wilkie, Palmer, Drake, Askew, McKnight, McPeek, K. Davis, Cooper, J. Davis, Ayanna Nolley, Terry Mullen, Turner, Jackson, Watson, Degree, Lee, and Funderburk are alleged coconspirators in a drug trafficking conspiracy operating in and around Buffalo, New York. According to the Government, Defendant Richard Mullen is the alleged leader of the drug conspiracy. Defendant Frederick Nolley allegedly distributed the cocaine and collected the drug purchase money. Defendant Richardson was an alleged customer of Richard Mullen's who would convert the cocaine to cocaine base and sell it to his own customers, including Defendants Amidon, McPeek and Wilkie, and others. The Indictment also alleges that Defendant Funderburk, a Buffalo police officer, advised Defendant Frederick Nolley, his brother-in-law, on how to operate a vehicle without attracting police attention, and that Funderburk staged a bogus car stop of Nolley's vehicle to make it appear the police confiscated money from Nolley's vehicle, which the Government asserts was given to Nolley by a drug customer.

In March 2004, DEA agents learned from Defendant Frederick Nolley, then acting as a cooperating witness, that, according to Richard Mullen, in January 2003 one of Mullen's drug couriers, Wesley Alleyene, who was then transporting kilogram quantities of cocaine for Mullen from Los Angeles to Buffalo, was stopped in Nebraska in a vehicle from which 10 kilograms of cocaine was seized. Subsequently, in March 2003, following a traffic stop, police in Kansas seized, from a vehicle rented by Defendant Edmond and driven by Defendant Stranc who was arrested, three kilograms of cocaine, which Mullen had obtained in Los Angeles. Defendants Richard Mullen, Nolley and Edmond were also stopped while driving through Kansas at the same time in a separate vehicle when Stranc's vehicle was stopped, but although Edmond admitted renting the vehicle Stranc was driving, they denied any knowledge of the cocaine. Following these stops, the DEA began conducting surveillance, including electronic surveillance, of Defendants Richard Mullen, Frederick Nolley and Richardson. Prior to applying for eavesdropping warrants, pen registers were installed on Richardson's cellular telephones. The DEA monitored some calls to Richardson with an informant's consent. Thereafter, the DEA applied for eavesdropping warrants for Richard Mullen, Frederick Nolley and Richardson.

In connection with the investigation, District Judges William M. Skretny and John T. Elfvin issued seven intercept orders pursuant to Title III, 18 U.S.C. § 2510, et seq., from which the Government obtained relevant evidence leading to the Indictment and for use at trial. These intercept orders relate to conversations between Richardson, Frederick Nolley, Richard Mullen and others, transmitted by telephone, cellular phone, or pager, and bear the targeted telephone numbers 716-570-2102, 716-578-2781 (target name: Efrim Richardson); 716-369-0057 (target name: Frederick Nolley — Order I); 716-602-0413 (target name: Frederick Nolley — Order II); 716-578-2614 (target name: Richard Mullen — Order I); 716-818-2697 (target name: Frederick Nolley — Order III); 716-400-7307 (target name: Richard Mullen — Order II); 716-308-0672 (target name: Richard Mullen — Order III) ("the Intercept Orders"). Government's Response at 6.⁹,¹⁰ The Intercept Orders were executed between February 11, 2004 and August 3, 2004. Id. at 5. Pursuant to this surveillance, the Government intercepted numerous conversations regarding the alleged possession and distribution conspiracy between Richardson, Frederick Nolley, Richard Mullen and other Defendants.

9 Defendant Funderburk cites four additional orders directed to other telephones issued by District Judge Richard J. Arcara and Judge Skretny to allow eavesdropping in this case which Funderburk contends are relevant. These telephone numbers include (i) land line 716-854-7648, (ii) land line 716-834-6590, and (iii) cellular phone numbers 716-553-7299, 716-316-9179, 716-854-1107, and 716-316-4548. However, the Government represents it will only use evidence derived from the Intercept Orders identified in the above paragraph. As such, the court limits its consideration to the Intercept Orders in the above paragraph and need not consider any challenge to the other wiretap orders obtained in this case.

10 The Government cites the pager number for the Nolley Order I as 360-0057. Government's Response at 6. However, the number is noted to be 716-369-0057 in the corresponding ten-day reports and Electronic Communication Service Order. (Intercept Order No. 04-MISC.CR-22). As such, in this Report and Recommendation the court identifies the pager number as 716-369-0057.

The Grand Jury subsequently charged Richard Mullen, Richardson, Frederick Nolley, Stranc, Edmond, Pressley, and Hall in the initial indictment filed on July 29, 2004. Several arrests and search warrants were authorized in the instant case, including the search warrants for Richard Mullen's residence at 90 Sussex Street, for his business located at 1202 East Delevan Avenue, and for his 1998 Ford Expedition; for Defendant Palmer's residence at 475 Shirley Avenue; for Defendant Adams's residence at 928 Humboldt Parkway, Upper; for Defendant Cooper's residence at 135 Zenner Street, Upper; and for Defendant Terry Mullen's residence at 90 Sussex, Lower, all located in Buffalo, New York.

Agents searched Richard Mullen's Ford Expedition on August 2, 2004, and arrested Mullen pursuant to a bench warrant. Government's Response at 8. Federal, state and local law enforcement agents executed search warrants on August 3, 2004, in Buffalo and Niagara Falls, New York, and against Mullen's vehicle in Henrietta, New York, resulting in the seizure of numerous items, including (1) currency, (2) cell phones, (3) weapons and ammunition, (4) holsters, (5) cartridges, (6) cartridge magazines, (7) a semi-automatic magazine, (8) drug paraphenalia, (9) unidentified pills, (10) cocaine, (11) cocaine base, (12) crack cocaine, (13) crack stems, (14) marijuana, (15) white powder "and chunks," (16) "white powder substance," (17) "green vegetable matter," (18) a "green, leafy substance," (19) "white, chunky substance," (20) packaging material, (21) scales, (22) two-way radios, (23) paperwork, (24) documents, (25) bank records, (26) automobiles, (27) keys, (28) safes, (29) computers, (30) paystubs, (31) two silver swords, (32) razor blades, at least one of which contained white, powdery residue, (33) a notebook, (34) a computer tower, (35) a heat sealer (36) and a glass plate. Government's Response at 8-11; Government's Supplemental Response at 1.

DISCUSSION

I. Suppression of Intercepted Electronic Communications

The intercepted communications the Government represents it will use as evidence at trial were authorized by Intercept Order Nos. 04-MISC.CR-15 as to 716-570-2102 ("target telephone I") and 716-578-2781 ("target telephone II") ("Richardson Order I", "Richardson Order I, 1st Extension" and "Richardson Order I, 2nd Extension"); 04-MISC.CR-22 as to Frederick Nolley's pager number 716-369-0057 ("Nolley Order I"); 04-MISC.CR-27 as to 716-602-0413 ("Nolley Order II"); 04-MISC.CR-44 as to 716-578-2614 ("Mullen Order I"); 04-MISC.CR-55 as to 716-818-2697 ("Nolley Order III"); 04-MISC. CR-75 as to 716-400-7307 ("Mullen Order II"); 04-MISC.CR 81 as to 716-308-0672 ("Mullen Order III"). Government's Response at 6.

Defendants Richard Mullen, Terry Mullen, Sanger, Drake, Ayanna Nolley, McKnight, Lee, Funderburk, and Adams move to suppress any and all evidence derived from electronic eavesdropping in this case, arguing that the Intercept Orders authorizing the eavesdropping activity were not supported by probable cause or necessity in violation of 18 U.S.C. § 2518. E.g., Eaonnou Affirmation ¶ 80. The Government controverts the factual allegations recited by Moving Defendants in support of suppression and Defendants' legal contentions. Government's Response at 6, 34-51. Specifically, the Government maintains (1) probable cause supports all of the Intercept Orders; (2) Judge Skretny was informed in each affidavit in support of each order he issued that the DEA corroborated information provided by Defendant Frederick Nolley, who the Government determined was a reliable informant; (3) Agent Laskowski's original and subsequent affidavits describing the basis for the investigator's determination that CS-4 was reliable was the result of, in part, the informant's participation in "consensually recorded telephone calls for the DEA"; and (4) even if one or more of the orders were not supported by probable cause, Moving Defendants have not shown, under United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), that as to any of the Intercept Orders "(1) the issuing judge abandoned his detached, neutral role; (2) the agent was dishonest or reckless in preparing his affidavit; or (3) the agents' reliance on any order was not reasonable," thus defeating Defendants' motions even assuming any lack of probable cause. Government Response at 36-39.

A. Standing

Under 18 U.S.C. § 2518(10)(a), only an "aggrieved person" may move to suppress information obtained pursuant to an electronic intercept order. An aggrieved person is defined as "a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11); United States v. Fury, 554 F.2d 522, 525-26 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977) ("a person who was not named in the wiretap order and was not a party to a conversation intercepted during that tap is not an `aggrieved person' and may not move to suppress information derived from it.").

Accordingly, the court considers Moving Defendants' challenges to the Intercept Orders only insofar as each Moving Defendant is named in or had conversations intercepted pursuant to any particular order. In this case, Defendants Richard Mullen and Drake are the only Defendants named in each Intercept Order upon which the Government will rely at trial. As such, they have standing to challenge any or all of those orders. Defendant Funderburk challenges the Richardson I and Nolley III Orders (first and second extensions) requesting suppression of the conversations to which Funderburk was a party in Nolley III on the ground that the Richardson I Order, upon which the Nolley III Order was based, was issued without probable cause. Funderburk's Motion ¶¶ 102, 107.

Because Funderburk was not mentioned in any Intercept Order upon which the Government intends to rely but allegedly participated in conversations obtained pursuant to the Nolley III Order, Funderburk only has standing to challenge the Nolley III Order. 18 U.S.C. § 2510(11); Fury, supra, at 525-26 (a person who is a party to an intercepted communication or one "against whom the order was directed" has standing to challenge the order's probable cause foundation or its necessity). However, the basis for Funderburk's challenge to the Nolley III Order is that the affidavits submitted by Task Force Agent Jennifer A. Catania in support of the first and second extensions of the Nolley III Order rely upon and "incorporate by reference each of the previous interception applications and orders, as outlined above, to supply the necessary probable cause for their issuance." Funderburk's Motion ¶¶ 103. As such, Funderburk asserts that he may challenge the probable cause underlying any of the previous orders and, in particular, the probable cause of the Richardson I Order. However, as the court determined, Discussion, infra, at 23-29, the Richardson I Order is amply supported by probable cause. Thus, Funderburk's argument that Nolley III is unsupported by probable cause in that Richardson I is unsupported by probable cause is without merit, and his asserted standing need not be addressed as to such incorporated Intercept Orders.

Defendants Lee, Sanger, Terry Mullen, McKnight and Ayanna Nolley have standing to challenge particular Intercept Orders upon which the Government relies insofar as Defendants allege they were parties to an intercepted communication or the target of such communication based on such Intercept Orders. With the exception of Defendant Kenya Lee, who claims to have standing to challenge the intercepted communications by asserting "the Government was able to intercept some phone calls from . . . Lee to Frederick Nolley," Stachowski Affirmation ¶ 100, Defendants Sanger, Terry Mullen, McKnight and Ayanna Nolley do not specify under which Intercept Orders their respective conversations were intercepted. For example, Defendants Sanger, Terry Mullen and Ayanna Nolley submit a general contention that each is "an aggrieved person and has standing to contest the electronic surveillance in that [he/she], or a telephone account in [his/her] name, is a named target of such eavesdropping warrants and, further, interception and recording of telephonic communications allegedly involving the Defendant . . . have been obtained thereby," but fail to identify the specific intercepted conversations to which these Defendants claim to have standing to move to suppress, nor do they allege a basis for standing.¹¹ Torre Affidavit ¶ 34; LaMendola Affidavit ¶ 36; Meyers-Buth Affidavit ¶ 36. Defendant McKnight moved to join in his co-Defendants' motions to suppress, but fails to identify on what ground McKnight had standing to challenge the intercepted communications, nor did McKnight specify the communications he challenges. Hoffman Supplemental Affidavit ¶¶ 5-6; Hoffman Affidavit ¶ 9(h).

11 Bracketed material added.

In proceedings held before the undersigned on February 2, 2005, however, the Government acknowledged that Defendant McKnight was intercepted through wiretaps on Defendant Richardson's telephone. Additionally, the court observes that Defendants Sanger and McKnight were named in the portion of the Richardson I Order that was effective from March 12, 2004 through April 11, 2004 and from April 21, 2004 through May 20, 2004, and all other Intercept Orders except for that portion of the Richardson I Order that was effective from February 11, 2004 through March 12, 2004 and the portion of the Nolley II Order that was effective from February 20, 2004 through March 22, 2004 and from March 2, 2004 through March 31, 2004. As such, Sanger and McKnight have standing to challenge all Intercept Orders the Government will rely on at trial except the Richardson I Order effective from February 11, 2004 through March 12, 2004 and the Nolley II Order effective from February 20, 2004 through March 22, 2004 and from March 2, 2004 through March 31, 2004, in which Sanger or McKnight are not named and pursuant to which they do not specifically allege their communications were intercepted.

Defendant Adams is not named in the portion of the Richardson I Order effective from February 11, 2004 through March 12, 2004 and the Nolley II Order effective from February 20, 2004 through March 22, 2004 and from March 2, 2004 through March 31, 2004, nor were his conversations intercepted thereunder. As such, Defendant Adams lacks standing to challenge these orders. Adams is named in the Mullen I Order effective from March 26, 2004 through April 16, 2004; the Mullen II Order effective from May 7, 2004 through June 7, 2004; the Mullen II Order effective from May 7, 2004 through June 7, 2004; the Mullen III Orders effective from May 28, 2004 through June 26, 2004 and from July 12, 2004 through August 2, 2004; the Richardson I Orders effective from March 12, 2004 through April 11, 2004 and from April 21, 2004 through May 20, 2004; the Nolley III Orders effective from April 12, 2004 through May 12, 2004, from May 21, 2004 through June 19, 2004 and from July 2, 2004 through July 31, 2004; and the Nolley II Order effective from April 2, 2004 through April 30, 2004. Accordingly, Adams has standing to challenge the Intercept Orders in which he is named to the extent described above.

Defendant Terry Mullen is named in the Mullen II Order effective from May 7, 2004 through June 7, 2004; the Nolley II Order effective from April 2, 2004 through April 30, 2004; the Nolley III Order effective from May 21, 2004 through June 19, 2004 and from July 2, 2004 through July 31, 2004; the Mullen III Order effective from May 28, 2004 through June 26, 2004 and from July 12, 2004 through August 2, 2004; and the Richardson I Order effective from April 21, 2004 through May 20, 2004. As such, Defendant Terry Mullen has standing to challenge the Intercept Orders in which he is named as indicated above.

Finally, Defendant Ayanna Nolley is named in the Mullen II Order effective from May 7, 2004 through June 7, 2004; the Mullen III Order effective from May 28, 2004 through June 26, 2004 and from July 12, 2004 through August 2, 2004; the Nolley II Order effective from April 2, 2004 through April 30, 2004; the Nolley III Order; and the portion of the Richardson I Order effective from April 21, 2004 through May 20, 2004. Therefore, Defendant Nolley has standing to challenge the Intercept Orders in which she is named, as stated above.

As discussed, Discussion, supra, at 524, although Defendant Lee alleges he was intercepted over some phone calls he made to Frederick Nolley, Lee does not identify under which of the three Nolley Intercept Orders these calls were intercepted. Further, the court notes that Kenya Lee is not named in any of the Nolley Intercept Orders, their related underlying applications, or any applications supporting any Intercept Orders upon which the Government intends to rely at trial. Without specifically identifying under which Nolley Order the conversation(s) were intercepted sufficient to confer standing upon Lee, the court is unable to consider Lee's motion to suppress the Intercept Orders as asserted. United States v. Magaddino, 496 F.2d 455, 460 (2d Cir. 1974) (burden on defendant to establish standing to challenge legality of electronic intercept warrants) (citing United States v. Sacco, 436 F.2d 780, 784 (2d Cir. 1971) ("Defendant has the burden of showing that he has standing to challenge admission of the seized evidence.")). See also United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991) ("Party moving to suppress bears the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.") (citing Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)); United States v. Gallo, 863 F.2d 185, 192 (2d Cir. 1988) (motion to suppress wiretap evidence pursuant to 28 U.S.C. § 2518(10)(a)(iii) "to be construed in accordance with standing requirements usually applied to suppression claims under Fourth Amendment.") (citing Alderman v. United States, 394 U.S. 165, 175-76 n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)), cert. denied, 489 U.S. 1083, 109 S.Ct. 1539, 103 L.Ed.2d 843 (1989). Accordingly, Lee's motion to suppress should be DENIED.¹²

12 There is no reason to discuss Moving Defendants' standing regarding searches pursuant to warrants issued by the undersigned, as to their respective residences and vehicles, and the Government does not contest such standing.

B. Probable Cause

As noted, Defendant Richard Mullen challenges each of the Intercept Orders as issued without probable cause. Eaonnou Affirmation ¶¶ 80-97. Defendant Funderburk challenges the Richardson I and Nolley III Orders on the same basis. Funderburk Motion ¶¶ 107-115. The remaining Moving Defendants who have moved to suppress the intercepted communications argue that the relevant Intercept Orders are deficient based, in part, on a lack of probable cause. Specifically, Defendants Sanger, Ayanna Nolley, and Terry Mullen challenge the probable cause basis for the orders, but do not specify which orders were issued without probable cause, nor do these Defendants provide reasons to support this contention. Defendant McKnight requests that he be allowed to join in his co-Defendants' motions and to assert his standing as an "aggrieved party," but McKnight does not specifically identify any defect upon which a particular order was based, such as the absence of probable cause or a lack of necessity. Hoffman Affidavit ¶ 9(h). Finally, Defendant Lee challenges the probable cause for all of the Intercept Orders, although Lee is not named in any of the orders. Lee also claims to be a party to "some of the intercepted conversations," but does not specify to which conversations he was a party. Stachowski Affirmation ¶ 88. Accordingly, as Lee fails to establish his standing to challenge the Intercept Orders, Discussion, supra, at 526, Lee's motion should be DENIED.

The same standard for assessing probable cause governs an application to intercept electronic communications over a digital display pager as for a wiretap or eavesdropping warrant issued pursuant to 18 U.S.C. § 2518. United States v. Rodriguez, 968 F.2d 130, 135 (2d Cir. 1992), cert. denied, 506 U.S. 847, 113 S.Ct. 139, 140, 121 L.Ed.2d 92 (1992).¹³ Additionally, it is well settled that the standard for assessing probable cause for an eavesdropping warrant is no different from that required for a search warrant. United States v. Fury, 554 F.2d 522, 530 (2d Cir. 1977), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977). In determining whether probable cause for an eavesdropping warrant exists, the issuing officer need only make a practical, common sense decision whether, given the "totality of the circumstances" set forth in the affidavit requesting such warrant, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that evidence of a crime will be obtained through the use of electronic surveillance. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

13 The term "interception" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical or other device." 18 U.S.C. § 2510(4) (emphasis added). Further, the phrase "or other" was inserted into the definition of "interception" as "part of a modernization of Title III to ensure protection for new forms of communication such as electronic pagers, electronic mail, and computer-to-computer communications." United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir.), cert. denied, 506 U.S. 847, 113 S.Ct. 139, 140, 121 L.Ed.2d 92 (1992).

An affidavit in support of an application for an eavesdropping warrant demonstrates probable cause when it sets forth facts which are sufficient, under the circumstances, to indicate a fair probability of criminal activity. United States v. Rowell, 903 F.2d 899, 902 (2d Cir. 1990) (citing Gates, supra, at 236, 103 S.Ct. 2317). Further, a judge's determination of probable cause should be given great deference by a reviewing court. Gates, supra, at 236; United States v. Nichols, 912 F.2d 598, 602 (2d Cir. 1990). The resolution of close cases should be determined by the preference accorded to warrants. United States v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993).

The court will address only Defendants Mullen's, Funderburk's, Sanger's, Ayanna Nolley's and Terry Mullen's general challenges to probable cause for the relevant Intercept Orders as urged by Moving Defendants. Moving Defendants challenge the Intercept Orders on the basis that the reliability of the confidential informants, referred to in the respective applications, particularly Frederick Nolley, who provided information upon which the orders, including the Richardson I Order, were issued, was not sufficiently established in the application. Specifically, Defendant Richard Mullen maintains the information provided by Frederick Nolley is inherently unreliable. Eaonnou Affirmation ¶¶ 87-93. Mullen asserts that Nolley cooperated with the Government to avoid future charges in exchange for providing the Government with information while minimizing his own role in the alleged conspiracy. Id. ¶¶ 86-87. With regard to the three confidential informants who provided information in the application about Richard Mullen and upon which the investigators relied in securing the Intercept Orders, Mullen argues that in addition to an insufficient showing of reliability, the information provided by these informants failed to establish the requisite probable cause for the orders. Id. ¶ 89. Mullen further contends that the first confidential source, CS-1, relied on in the application for the Richardson I order, may only establish probable cause regarding Frederick Nolley's alleged involvement, and not Mullen's, in this case because CS-1 was another drug trafficker who worked for Frederick Nolley and "who gave information in exchange for consideration from the government." Id. ¶ 90.

Defendant Mullen further argues that the information proffered by the second confidential informant, CS-2, cannot establish probable cause sufficient to authorize a wiretap order against Mullen because CS-2, who identified Frederick Nolley "in a scheme to facilitate the flight of Michael Stranc from the jurisdiction," does not name Richard Mullen. Eaonnou Affirmation ¶ 91. Mullen also concludes that the third confidential informant, CS-3, does not establish probable cause for Mullen's involvement in the narcotics conspiracy because, although CS-3 describes Defendant Richardson's involvement in the conspiracy, CS-3 does not mention Richard Mullen. Eaonnou Affirmation ¶ 92. Finally, Mullen argues that the fourth confidential informant, CS-4, whom the agents relied upon is unreliable because CS-4 also faces drug charges and only provided information in exchange for leniency. Eaonnou Affirmation ¶ 93.

The factors that courts find sufficient to establish the reliability of informants in issuing warrants include that (1) the informant's statements qualified as admissions against penal interest by admitting to personal involvement in the alleged criminal activity, (2) the informants were witnesses to the alleged criminal activity, (3) the statements were corroborated by other investigative techniques such a pen register records, and (4) the informant was not a professional informant. United States v. Rowell, 903 F.2d 899, 903 (2d Cir. 1990). However, contrary to Moving Defendants' contentions, the reliability of the confidential informants as to each of the Intercept Orders challenged on this basis can be established under one or more of these factors.

As stated, Defendant Richard Mullen asserts that the information provided by Frederick Nolley is "inherently unreliable" because of Nolley's interest in diminishing charges filed against Nolley in exchange for his cooperation. Eaonnou Affirmation ¶ 87. At oral argument, counsel for Richard Mullen argued that only conclusory statements as to Richard Mullen were made to secure the Richardson I Order, and nothing from the Mullen I Order was sufficiently incriminating as to support the Mullen II Order. (Docket Item No. 252). The Government counters by maintaining that the DEA was able to corroborate information Frederick Nolley provided to the DEA to support both orders which included information regarding the Stranc and Mullen traffic stops in Kansas, and the related drug seizure from Stranc's car, and that these facts were presented to Judge Skretny, who issued the Mullen II Order, in affidavits submitted in support of each order. Government's Response at 37. Additionally, the Government represented at oral argument that the core probable cause relied upon for the Richardson I Order was the cocaine seizure, in Kansas, from the vehicle in which Stranc was traveling to Buffalo as a drug courier for Mullen's cocaine distribution operation. The Government also contended that Judge Skretny properly considered Frederick Nolley to be a reliable informant, based on factors found in Rowell, supra, sufficient to establish the reliability of the wiretap application informants in that Nolley made admissions against his penal interest and that Nolley's statements were corroborated by the DEA. Government Response at 37. This information, coupled with the fact that Nolley admitted to personally participating in Mullen's drug trafficking organization, was also included in DEA Agent Laskowski's affidavit in support of the Richardson I Order and accepted by Judge Skretny. Affidavit of Agent Robert J. Laskowski in Support of Intercept Order No. 04-MISC.-CR-15 ("Laskowski Affidavit") ¶¶ 12-14. Therefore, based on the relevant factors, Rowell, supra, at 903, the court finds that Nolley was a sufficiently reliable informant whose statements supported a finding of probable cause for the Richardson I Order.

Defendant Mullen also contends that the information provided by CS-1, CS-2, and CS-3 cannot be relied on to establish probable cause as to Mullen's alleged involvement in the conspiracy. Eaonnou Affirmation ¶¶ 90-92. However, a plain reading of Agent Laskowski's affidavit, submitted in support of the Richardson I Order, reveals that CS-1 was personally involved in drug transactions with members of the Mullen narcotics conspiracy and that CS-1 provided a description of specific conduct by Mullen in furtherance of the conspiracy. Laskowski Affidavit ¶¶ 26-27 ("Upon returning to Buffalo, CS-1 met with Mullen to give him [Mullen] the cocaine," Id. ¶ 26;¹⁴ and "Mullen again approached CS-1 and asked if he/she was interested in working as a drug courier.") Id. ¶ 27.

14 Bracketed material added.

The Laskowski affidavit further indicates that Frederick Nolley, CS-1, and CS-3 made admissions against their penal interests in statements to law enforcement. Laskowski Affidavit ¶¶ 12, 23, 42. However, the information proffered by CS-2 concerns only Defendants Stranc and Frederick Nolley, and the information provided by CS-3 implicates only Defendant Richardson. Laskowski Affidavit ¶¶ 41-45. Nevertheless, the court finds that, with regard to the information provided by CS-3, and as presented to Judge Skretny in Agent Laskowski's Affidavit, probable cause was established as to Defendant Richardson in that CS-3 provided such statements against penal interest and the information provided by CS-3 had been corroborated, where possible. Laskowski Affidavit ¶ 42. Therefore, Judge Skretny properly credited CS-3's information as to the existence of the conspiracy. Thus, even assuming CS-3 did not directly attempt to incriminate Mullen, several factors supported CS-3 as a credible source.

Defendant Mullen also attacks the information provided by CS-4, arguing that CS-4 made the purported admissions in exchange for leniency, that CS-4 made conclusory statements regarding Mullen's alleged role in the conspiracy, and that nothing contained in the affidavits establishes CS-4's source of knowledge. Eaonnou Affirmation ¶ 93. However, Defendant Mullen's assessment finds no support in Agent Laskowski's affidavit. For purposes of establishing probable cause, the Second Circuit considers an informant to be reliable if such information "is based on reliable means, such as first-hand observations or second-hand information from reliable sources, rather than unreliable means such as rumor or inuendo," and will find information "sufficiently reliable" where it has been "corroborated in material respects by independent evidence." United States v. Wagner, 989 F.2d 69, 72-73 (2d Cir. 1993). Here, the information supplied by CS-4 was personally obtained by CS-4 when CS-4 consensually recorded incriminating telephone calls for the DEA, including Richardson's statement that Mullen was one of Richardson's suppliers and that Mullen was assisted by Frederick Nolley who was then cooperating with the DEA. Laskowski Affidavit ¶ 54. Additionally, CS-4 made numerous admissions against penal interest and CS-4's statements were corroborated, where possible, by the DEA investigators. Id. The court therefore finds that the agents supplied Judge Skretny with facts supporting CS-4's reliability sufficient to establish probable cause for the Richardson I Order.

Mullen also claims CS-2's information was unreliable on its face as such information was hearsay and not based on firsthand knowledge. However, as discussed, Discussion, supra, at 25-27, in this case the wiretap applications at issue are based on information provided by several other confidential informants and Frederick Nolley, in addition to the information as received from CS-2. Accordingly, even if the information provided by CS-2 and CS-3 were considered to be insufficient to establish probable cause as to Defendant Mullen as a basis for the Richardson I Order, as Mullen contends, the statements provided by Frederick Nolley, CS-1 and CS-4 establish, notwithstanding, the required probable cause against Mullen as each informant either offered statements to the DEA qualifying as admissions against their penal interests, including admitting to personal involvement in the alleged criminal narcotics activity, the information was based on their personal observation of the alleged criminal activity, and CS-1 and CS-4 provided statements corroborated by other investigative techniques such pen register records and Nolley's incriminating information. Laskowski Affidavit ¶¶ 5, 12, 23, 42. See Wagner, 989 F.2d at 72-73. Illinois v. Gates, 462 U.S. at 214, 103 S.Ct. 2317 (1983) ("The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place."). See United States v. Rowell, supra, at 903. Thus, taken as a whole, the information contained in the affidavits challenged by Moving Defendants set forth facts sufficient to indicate a fair probability of criminal activity in the nature of a wide-spread narcotics trafficking conspiracy involving Richardson and Mullen. Rowell, 903 F.2d at 902 (2d Cir. 1990) (citing Gates, supra, at 236, 103 S.Ct. 2317). As such, Moving Defendants' motions to suppress intercepted electronic communications, resulting from the Intercept Orders, based on this ground should be DENIED.

As stated, Funderburk contends the conversations he was a party to in the Nolley III Order, including the first and second extensions, approved by Judge Skretny, should be suppressed because the Richardson I Order, upon which the Nolley III Order was predicated, was issued without probable cause. Funderburk Motion ¶ 108. Based on its rejection of Moving Defendants' contention that the Intercept Orders were issued without probable cause, Discussion, supra, at 526-30, the court has determined that the Richardson I Order, upon which the application for the Nolley III order was based, is supported by probable cause. Thus, Funderburk's challenge to the Nolley III Order for lack of probable cause fails, and his motion to suppress on this ground should be DENIED.

Even if it were assumed that any of the Intercept Orders were issued without probable cause, Moving Defendants have not provided any grounds to conclude the challenged wiretaps would not qualify for the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Although the Second Circuit has yet to determine whether Leon's good faith exception applies to electronic surveillance such as the intercept orders in this case, other circuits, as well as district courts within the Second Circuit, have so held. See, e.g., United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994) (court considered the discretionary language of 18 U.S.C. § 2518(10)(a) combined with the statute's legislative history, which "expresses a clear intent to adopt suppression principles developed in Fourth Amendment cases," to indicate the exclusionary rule applies to § 2518(10)(a) suppression issues), cert. denied, 514 U.S. 1121, 115 S.Ct. 1985, 131 L.Ed.2d 872 (1995); United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988) (court analyzed information contained in the wiretap application under the deterrence theory of the exclusionary rule), cert. denied, 489 U.S. 1024, 109 S.Ct. 1149, 103 L.Ed.2d 209 (1989); United States v. Gotti, 42 F.Supp.2d 252, 267 (S.D.N.Y. 1999) (court extended the good faith doctrine in Leon to wiretaps where warrants were not facially deficient and where the agents reasonably relied upon the information contained therein); United States v. Bellomo, 954 F.Supp. 630, 638 (S.D.N.Y. 1997) (court found "no principled basis" to distinguish wiretap orders from other searches and seizures as to applicability of Leon) (citing cases). But see United States v. Spadaccino, 800 F.2d 292, 296 (2d Cir. 1986) (suggesting, but not holding, that Leon may not apply to challenges to intercept orders pursuant to the federal wiretap statute as suppression is a legislative remedy intended to compel compliance with statutory, not only Fourth Amendment, notice requirements).

C. Staleness

The Government asserts that Defendant Lee contended certain information supporting the wiretap orders was stale. Government's Response at 38. However, the court's review of Lee's motion indicates no such argument was made. Accordingly, Defendant Lee's motion on this ground should be DISMISSED. At oral argument, Defendant Palmer's attorney alleged that the search warrant issued for Palmer's home was not supported by probable cause because it was stale. Docket Item No. 252. In particular, Palmer's attorney contended there were three alleged conversations that took place between Defendants Richardson and Palmer in March 2004. Id. As such, Palmer's attorney argues that there was no probable cause for the search warrant issued in August 2004 because agents could not reasonably have expected to find evidence of criminal activity approximately five months after the conversation took place. The court does not agree.

"`[T]he principal factors in assessing whether or not the supporting facts have become stale are the age of those facts and the nature of the conduct alleged to have violated the law.'" United States v. Rowell, 903 F.2d 899, 903 (2d Cir. 1990) (quoting United States v. Martino, 664 F.2d 860, 867 (2d Cir. 1981)), cert. denied, 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982). "Moreover, `[n]arcotics conspiracies are the very paradigm of the continuing enterprises for which courts have relaxed the temporal requirements of non-staleness.'" Rowell, supra (citing United States v. Feola, 651 F.Supp. 1068, 1090 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989)). In Rowell, supra, the court held that information as old as 18 months need not be suppressed on the basis of staleness, particularly with regard to the investigation of a narcotics conspiracy. Rowell, supra, at 903. Here, the information which Palmer maintains was stale was also obtained during the investigation of a narcotics conspiracy and, as less than six months old at the time of the relevant application, was significantly fresher than the information at issue in Rowell. Further, Palmer's attorney offers no authority for his contention that the particular time period applicable to the search warrant for Palmer's residence necessarily invalidates the probable cause foundation for the warrant on staleness grounds. Accordingly, Palmer's staleness claim is without merit and Palmer's motion should be DENIED on that ground.

D. Necessity

Defendants Richard Mullen, Funderburk, Sanger, Ayanna Nolley, Terry Mullen, Lee and Adams challenge the necessity of the initial eavesdrop application and the necessity of every extension application obtained thereafter. These Defendants contend the Government did not adequately establish that it had employed other, conventional means of investigation without success or the reason why such means, if employed, would not uncover criminal activity as required by 18 U.S.C. § 2518(3)(c) (" § 2518(3)(c)"). Eoannou Affirmation ¶ 96; Funderburk Motion ¶¶ 107-128; Torre Affidavit ¶ 39; Meyers-Buth Affidavit ¶ 41; LaMendola Affidavit ¶ 41; Stachowski Affirmation ¶¶ 106-109; LaTona Affidavit ¶¶ 41, 54. Additionally, Defendants contend that statements proffered by the DEA investigators to show the necessity of such electronic surveillance are conclusory and "boilerplate" in nature, and that the applications for electronic surveillance reference numerous confidential informants that witnessed the narcotics activity, thus demonstrating that wiretapping was not essential to the investigation. Torre Affidavit ¶ 37; Meyers-Buth Affidavit ¶ 39; LaMendola Affidavit ¶ 39; LaTona Affidavit ¶ 54.

The Government contends the Defendants' challenges misunderstand the governing law and ignore the justification for the electronic surveillance in the affidavits submitted in support of the challenged Intercept Orders. Government's Response at 40. Specifically, the Government contends that each supporting affidavit contained facts that were "more than minimally adequate to support . . . [Judge Skretny's] determination" that electronic interception was warranted and identified the investigative techniques that were attempted or used and included reasons why others were not used. Government's Response at 42-43.¹⁵ The Government therefore submits that this information, as provided to Judge Skretny, was sufficient to determine the necessity of the requested electronic surveillance. Id. (citing United States v. Ruggiero, 726 F.2d 913, 924 (2d Cir. 1984), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984)). Specifically, in this case, according to the Government, the investigative techniques that either were used, were attempted and failed, or were not used as described in the affidavits submitted include "the use of informants; the use of grand jury subpoenas; the use of physical surveillance; the interview of targets; the review of pen register information; the use of search warrants or trash runs; and the use of undercover agents." Government's Response at 42-43. The Government further contends that electronic surveillance was necessary to obtain a conviction of the members of Mullen's narcotics conspiracy. Id. at 42. Finally, the Government argues that Defendants have not made a "substantial" showing that any supporting affidavit was made with "deliberate falsity or reckless disregard for the truth." Id. at 44.

15 Internal quotation omitted and bracketed material added.

As required by § 2518(3)(c), an application for an electronic intercept order must contain "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear unlikely to succeed if tried or to be too dangerous." The purpose of this requirement is not to render electronic surveillance an investigative tool of last resort, but to apprise the judicial officer of the progress of the investigation and the difficulties inherent in the use of normal investigative techniques. United States v. Torres, 901 F.2d 205, 231 (2d Cir. 1990), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). Thus, courts have held that the requirement of § 2518(3)(c) must be construed in a practical, common sense and realistic fashion. United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). The statute does not require that all possible techniques be exhausted in fact before a wiretap may be authorized, but, rather, "[a]n affidavit describing the standard techniques that have been tried and facts demonstrating why they are no longer effective is sufficient to support an eavesdropping order even if every possible means of the investigation has not been exhausted." United States v. Terry, 702 F.2d 299, 310 (2d Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983).

In this case, each of the challenged affidavits demonstrates compliance with the necessity requirements for the issuance of Intercept Orders. Specifically, each of the intercept applications include an affidavit from a DEA agent directly involved in the investigation of the alleged narcotics trafficking conspiracy detailing why other investigative techniques are not likely to be effective. Laskowski Affidavit in Support of Intercept Order No. 04-MISC. CR-15 effective from February 11, 2004 through March 12, 2004 (¶¶ 76-95), from March 12, 2004 through April 11, 2004 (¶¶ 89-92), and from April 21, 2004 through May 20, 2004 (¶¶ 41-48); Affidavit of DEA Agent William Donovan ("Donovan Affidavit") in Support of Order No. 04-MISC.CR-22 ¶ 15; Affidavit of DEA Agent Daniel F. Rinaldo ("Rinaldo Affidavit") in Support of Intercept Order No. 04-MISC.CR-27 effective from March 2, 2004 through March 31, 2004 (¶¶ 16-28), and from April 2, 2004 through April 30, 2004 (¶¶ 20-31); Affidavit of DEA Special Agent Dale M. Kasprzyk ("Kasprzyk Affidavit") in Support of Intercept Order No. 04-MISC.CR-44 ¶¶ 19-32; Affidavit of DEA Agent Jennifer A. Catania ("Catania Affidavit") in Support of Intercept Order No. 04-MISC.CR-55 effective from April 12, 2004 through May 12, 2004 (¶¶ 18-30), from May 21, 2004 through June 19, 2004 (¶¶ 16-29), and from July 2, 2004 through July 31, 2004 (¶ 65-82); Kasprzyk Affidavit in Support of Order No. 04-MISC.CR-75 ¶¶ 43-58; Kasprzyk Affidavit in Support of Order No. 04-MISC.CR-81 effective from May 28, 2004 through June 26, 2004 (¶¶ 127-141), and from July 12, 2004 through August 2, 2004 (¶¶ 42-59) ("Agents' Affidavits").

Each of these affidavits describes other techniques that have been used in the investigation, including telephone call toll records, pen register analysis, physical surveillance, obtaining the criminal history of the subjects of the investigation, a grand jury subpoena of Moshe Friedlander's bank records and the persons and businesses associated with him relative to a money laundering investigation associated with this case, and why such methods such as grand jury subpoenas, infiltration of the suspected conspiracy by undercover agents and securing search warrants, for example, were impractical at that time. E.g., Laskowski Affidavit in Support of Richardson I Order from February 11, 2004 through March 12, 2004 ¶¶ 76-96. For example, although DEA agents in this investigation had conversations with reliable informants, the agents nevertheless represented they received limited cooperation from such informants. E.g., Laskowski Affidavit in Support of Richardson I Order from February 11, 2004 through March 12, 2004 ¶¶ 22, 34, 37-39, 45. Further, according to Agent Laskowski, targets of the investigation had proven themselves to be conscious of surveillance so that prolonged physical surveillance, required to identify all members of the conspiracy and their modus operandi, was ineffective. Id. ¶ 90.

Despite such attempted investigative techniques, the full extent of the conspiracy including, inter alia, the identity of all of its members and their respective distribution networks, the conspiracy's methods of drug supply, particularly the identity of Richardson's and Richard Mullen's narcotics sources of supply in New York City and Los Angeles,¹⁶ the means of financing the purchase of the drugs, the scope of Richard Mullen's and Richardson's narcotics-related activities, the location where drugs and proceeds were stored and the members of the conspiracy and their methods for disposing of the narcotics, could not be readily determined. E.g., Laskowski Affidavit in Support of Richardson Order I from February 11, 2004 through March 12, 2004 ¶¶ 76-78. Similar affidavits, stating that despite use of visual surveillance and pen registers employed against suspected members of the conspiracy for several months during the interceptions and the receipt of informant information, agents were unable to determine the extent of a drug trafficking conspiracy, have been held sufficient to establish the need for an intercept order. See United States v. Torres, 901 F.2d 205, 231-32 (2d Cir. 1990), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990); United States v. Young, 822 F.2d 1234, 1237 (2d Cir. 1987); United States v. Puglisi, 790 F.2d 240, 241-42 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 106, 93 L.Ed.2d 55 (1986).

16 It is relevant that Defendant Stranc was discovered to be transporting narcotics from Los Angeles to Buffalo on behalf of Mullen. Facts, supra, at 521.

Defendants Adams and Funderburk argue the intercepted communications obtained pursuant to the Richardson I and Nolley III wiretap orders should be suppressed because the orders contravene the Second Circuit's holding that "generalized and conclusory statements that other investigative procedures would prove unsuccessful" are insufficient to establish the requisite necessity for authorizing such an order. LaTona Affidavit ¶¶ 49-54; Funderburk's Motion ¶¶ 117-128 (citing United States v. Lilla, 699 F.2d 99, 104 (2d Cir. 1983)). Defendants contend that, as in Lilla, evidence derived from the orders in the instant case must be suppressed because the statements made in the supporting affidavits do not establish this case is more than a "small time narcotics case." Id.

The court finds the facts of the instant case distinguishable from those in Lilla. In the instant case, the initial investigation began in March 2003, approximately one year before the Richardson I order was authorized and approximately 1½ years before the initial indictment in this case. During this time, the investigation consisted of obtaining information from at least four informants who provided information to Agent Kasprzyk and Detective Rinaldo regarding the drug trafficking activities of members of the alleged conspiracy, some of which described drug trafficking between New York City and Buffalo, and between New York and Los Angeles; the arrest of Defendant Stranc while transporting narcotics from Los Angeles to Buffalo and the related questioning in March 2003 of Defendants Richard Mullen, Frederick Nolley and Edmond while traveling to Buffalo through Kansas in proximity with Stranc; information regarding the earlier arrest in January 2003 of Wesley Alleyene and Billy Gene Lee in Omaha, Nebraska and a corresponding cocaine seizure; consensually monitored, incriminating calls made by certain informants to Defendant Richardson; toll and pen register analysis over target telephones of interceptees and violators; and surveillance of Richardson, Richard Mullen and Frederick Nolley. Government's Response at 4-7; Laskowski Affidavit in support of Richardson Order from February 11, 2004 through March 12, 2004 ¶ 79. As the Second Circuit in Puglisi, supra, stated

This [information] stands in stark contrast to United States v. Lilla, 699 F.2d 99, 104-05 (2d Cir. 1983), where, less than a month after being informed that Lilla was selling narcotics, and after buying marijuana directly from Lilla, a state trooper obtained an eavesdropping warrant solely on the strength of his representations that no other method would reveal Lilla's co-conspirators.

United States v. Puglisi, 790 F.2d 240, 242 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 106, 93 L.Ed.2d 55 (1986).¹⁷

17 Bracketed material added.

Here, the extensive investigation that preceded application for the wiretap orders, without identifying the true scope of the conspiracy, the identity of members or related questions such as the exact source of supply and finance of the conspiracy, demonstrated the necessity of such orders. As noted, § 2518(3)(c) does not require all other investigative procedures be exhausted before a wiretap order may be issued. Discussion, supra, at 533. In Torres, supra, the court upheld a wiretap order which followed an extensive, 14-month investigation against a necessity challenge because, unlike the "bare conclusions" contained in the supporting affidavits in Lilla, "the affidavits . . . convincingly established that the Torres Organization was a large scale operation which could not be adequately surveiled by traditional investigative methods." Torres, 901 F.2d at 232. Here, the Mullen conspiracy was geographically wide-ranging and, as alleged by the Grand Jury, involved over 30 co-conspirators.

Under these circumstances, the court finds that, based on the affidavits submitted in support of the Intercept Order applications challenged by Defendants, the interception of electronic communications among the Defendant conspirators was necessary to obtain relevant evidence as other standard investigative techniques were not productive as of the date on which each such application was made. Defendants fail to explain how, as in Lilla, supra, standard investigative techniques could have been productively utilized prior to any of the applications or their respective extensions. Thus, the challenged applications amply satisfy the necessity requirement of § 2518(3)(c). Accordingly, Defendants' motion to suppress evidence obtained pursuant to the intercept orders on this basis should be DENIED.

E. Minimization and Failure to Record

Defendants Adams, Sanger, Drake, Ayanna Nolley and Terry Mullen contend that the agents "failed to properly minimize their interceptions," in violation of 18 U.S.C. § 2518(5) (" § 2518(5)"). LaTona Affidavit ¶¶ 77-82; Torre Affidavit ¶ 36; Drake Motion Part VIII, ¶ 4; Meyers-Buth Affidavit ¶ 38; LaMendola Affidavit ¶ 38; Government's Response at 44. The court's consideration of this ground for suppression is hampered by Defendants' failure to state which call or series of calls they contend violate the minimization requirement of § 2518(5). Id.

Upon a defendant's claim § 2518(5)'s that minimization requirements were not met, the court must determine whether the actions of the agents conducting the telephonic surveillance were reasonable under the circumstances. Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). It is the government's burden to make a prima facie showing of compliance with § 2518(5)'s minimization requirements. United States v. Rizzo, 491 F.2d 215, 217 n. 7 (2d Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 (1974); United States v. Baker, 443 F.Supp. 526, 531 (S.D.N.Y. 1977). Once a prima facie showing is made, the burden shifts to the defendant to show that, despite good faith compliance with the minimization requirements, "substantial unreasonable interception of non-pertinent conversations occurred," to the extent warranting suppression of evidence. United States v. Ianniello, 621 F.Supp. 1455, 1470 (S.D.N.Y. 1985), aff'd, 824 F.2d 203 (2d Cir. 1987).

In determining the reasonableness of investigators' compliance with the statutory minimization requirement, the Supreme Court stated that "blind reliance on the percentage of non-pertinent calls is not a sure guide to the correct answer . . . there are surely cases . . . where the percentage of non-pertinent calls is relatively high and yet their interception was still reasonable." Scott, 436 U.S. at 140, 98 S.Ct. 1717. In analyzing the reasonableness of the intercepts, the court must consider such factors as the extent of the conspiracy and number of co-conspirators under surveillance, the stage of the investigation, the length of the conversations being monitored, and the use to which the telephone is typically put by the conspiracy. Scott, supra, at 140-42, 98 S.Ct. 1717.

Even in situations where the percentage of non-pertinent calls is arguably large, interception may nonetheless be reasonable. Scott, 436 U.S. at 140, 98 S.Ct. 1717. For example, many non-pertinent calls may be short in duration or have been only one-time calls. Id. Moreover, incomplete conversations for which there was no answer or conversations lasting less than two minutes need not be minimized, as such a short time frame is "too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversation." United States v. Capra, 501 F.2d 267, 275-76 (2d Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 670 (1975). Many of the alleged non-pertinent calls may be ambiguous in nature or in coded language. Scott, supra, at 140, 98 S.Ct. 1717. Conversations using coded language may make correct characterization of the conversation, and thus any opportunity to minimize, impossible until the termination of the call. United States v. Millan, 817 F.Supp. 1072, 1080 (S.D.N.Y. 1993). Under these circumstances, it would be difficult for agents to realize such calls were non-pertinent prior to their termination. Scott, 436 U.S. at 141-42, 98 S.Ct. 1717; See also United States v. Bynum, 485 F.2d 490, 501 (2d Cir. 1973) (in large scale drug conspiracy case, conversations under two minutes "would be too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversation as merely social or possibly tainted"), vacated and remanded on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974).

In the instant case, the Intercept Orders, as challenged by Moving Defendants, with the exception of Intercept Order No. 04-MISC.CR-22 for Defendant Frederick Nolley's pager, effective February 20, 2004 through March 22, 2004, required that all intercepted communications be terminated immediately upon determining that the subject matter of the conversation was unrelated to communications subject to interception under 18 U.S.C. § 2518(5). Intercept Order No. 04-MISC.CR-15 (2/11/04-3/12/04) at 8; Intercept Order No. 04-MISC.CR-15 (1st Extension; 3/12/04-4/11/04) at 8; Intercept Order No. 04-MISC.CR-15 (2nd Extension; 4/21/04-5/20/04) at 8-9; Intercept Order No. 04-MISC.CR-27 (3/2/04-3/31/04) at 7-8; Intercept Order No. 04-MISC.CR-27 (1st Extension; 4/2/04-4/30/04) at 8; Intercept Order No. 04-MISC.CR-55 (4/12/04-5/12/04) at 8-9; Intercept Order No. 04-MISC.CR-55 (1st Extension; 5/21/04-6/19/04) at 8-9; Intercept Order No. 04-MISC.CR-55 (2nd Extension; 7/2/04-7/31/04) at 8; Intercept Order No. 04-MISC.CR-44 (3/26/04-4/16/04) at 8; Intercept Order No. 04-MISC.CR-75 (5/7/04-6/7/04) at 8-9; Intercept Order No. 04-MISC.CR-81 (5/28/04-6/26/04) at 8-9; Intercept Order No. 04-MISC.CR-81 (7/12/04-8/2/04) at 8-9. Interception was also to be terminated whenever it was determined through voice identification, physical surveillance or otherwise that none of the authorized interceptees, when identified, were participants in the conversation unless the conversation was criminal in nature. Id. Monitoring agents were directed to "spot check" minimized conversations to ensure the conversation had not turned to criminal matters. Id.

The court's review of the ten-day reports for the target phones subject to the Intercept Orders, prepared in connection with the execution of the Intercept Orders covering the challenged surveillance, submitted by the Government for the target telephone numbers, demonstrates proper minimization efforts by the agents responsible for executing the orders. E.g., 1st Ten-Day Report re: 04-MISC.CR-15 prepared by DEA Agent Mark T. Peterson, which enumerates the total calls intercepted and minimized, as well as those considered pertinent, incomplete, under two minutes, received by an answering machine or pager, or not monitored. Such opportunity for judicial supervision "provides strong support for the government's claim that the minimization requirement has been satisfied." United States v. Hennings, 1997 WL 714250 * 11 (W.D.N.Y. 1997) (weekly reports provided to Judge Arcara for review supported proper minimization efforts).

In United States v. Falsetti, 721 F.Supp. 452 (W.D.N.Y. 1988), the court found that investigators were entitled to "broader surveillance than otherwise would have been appropriate, particularly during the earlier stages of the investigation" in a case where there was "a relatively large drug-distribution ring that utilized coded phone conversations, had sources in Arizona and Mexico, and may have included corrupt federal and state officials." Falsetti, supra, at 457 (W.D.N.Y. 1988) (citing People v. Floyd, 41 N.Y.2d 245, 392 N.Y.S.2d 257, 360 N.E.2d 935 (1976)). Here, as in Falsetti, a relatively large drug-distribution ring is suspected of intra and interstate narcotics trafficking. Government's Response at 4-7. Further, DEA agents who submitted affidavits in support of the Intercept Orders indicated they believed the group used coded phone conversations and that the alleged conspiracy may, as was the case in Falsetti, supra, involve a corrupt Buffalo police officer. Government's Response at 13.

Even if the investigating agents failed to use reasonable efforts to minimize particular intercepted communications as Defendants claim, suppression of all communications intercepted pursuant to any of the challenged Intercept Orders is not the proper remedy absent a "pervasive disregard of the minimization requirement." United States v. Cirillo, 499 F.2d 872, 881 n. 7 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974); United States v. McGuinness, 764 F.Supp. 888, 900 (S.D.N.Y. 1991) (holding exclusion of all evidence obtained through electronic intercept order because of inclusion of some irrelevant conversations, even if irrelevant conversations were listened to in their entirety, is not necessary provided investigating law enforcement officers make good faith effort to achieve minimization). Rather, suppression of all evidence obtained under an Title III intercept order is warranted only when, at a minimum, "a substantial number of non-pertinent conversations ha[ve] been intercepted unreasonably."¹⁸ Cirillo, 499 F.2d at 881 (affirming district court's denial of defendant's suppression motion based on failure to minimize, without holding full adversary-type hearing, in the absence of evidence that substantial number of non-pertinent conversations had been intercepted unreasonably). Contrary to Defendants' assertions, the record in this case fails to demonstrate any such pervasive disregard of the minimization requirement and Defendants point to nothing to indicate otherwise.

18 Bracketed material added.

The court finds that based upon the foregoing analysis, the investigators' affidavits satisfies the Government's burden under § 2518(5) and is "strongly supportive of the claim that the minimization requirement has been satisfied." Falsetti, supra, at 458. In contrast, Defendants have failed to point to any examples in this case that, based on the record, they claim demonstrate a material failure to minimize. As such, there has been no showing that the Government's efforts at minimization were sufficiently unreasonable thereby warranting suppression. United States v. Badalamenti, 1985 WL 2572, *7 (S.D.N.Y. 1985) (mere fact that wiretap is conducted does not justify minimization hearing "where no colorable issue has been raised by the papers"), cert. denied, 495 U.S. 933, 110 S.Ct. 2175, 109 L.Ed.2d 504 (1990). In the absence of any evidence that a substantial number of non-pertinent calls were intercepted unreasonably, no minimization hearing is necessary. Cirillo, supra, at 881. The Government has therefore satisfied its burden to establish compliance with 18 U.S.C. § 2518(5)'s minimization requirements, while Moving Defendants have failed to meet theirs. Defendants' motions to suppress on this ground, therefore, should be DENIED.

Defendant Adams also moves to suppress based on Agent Laskowski's failure to record a conversation between Adams and Defendant Richardson. LaTona Affidavit ¶¶ 77-82. Adams asserts that Agent Laskowski indicated in one of the surveillance logs "DID NOT RECORD. RL.," referencing a call placed from Richardson's telephone number (716-578-2781) to Adams. Id. ¶ 77. Adams argues that 18 U.S.C. § 2518(8)(a) requires the contents of all intercepted communications "be recorded," and thus, based on Laskowski's asserted failure to do so as regards Adams's specific conversation with Richardson, such failure necessitates the suppression of all intercepted communications involving Adams. Id. ¶¶ 78-82. The court does not agree. "[A] failure to record, though admittedly a violation of the statute, does not lead to suppression and reversal of the convictions." United States v. Amanuel, 2005 WL 3200139, *4-5 (W.D.N.Y. 2005) (quoting United States v. Clerkley, 556 F.2d 709, 719 (4th Cir. 1977), cert. denied, 436 U.S. 930, 98 S.Ct. 2830, 56 L.Ed.2d 775 (1978)).

Significantly, Adams does not allege that any intercepted incriminating conversations involving him were recorded out of context. Nor has Adams established that he has been prejudiced by Agent Laskowski's failure to record in this one instance. Under these circumstances, where the minimization requirement has been substantially satisfied by the Government and the failure to record a single conversation constitutes a de minimus administrative error measured against the significant number of conversations properly monitored and recorded in this case, suppression for violation of § 2518(5) is not required. United States v. DePalma, 461 F.Supp. 800, 824 (S.D.N.Y. 1978) ("Even assuming that out of eleven thousand intercepts, the four conversations were monitored but not recorded by a means unexplained in the testimony, this court cannot find that such instances were more than de minimus transgressions of the statute which would not result in suppression."); United States v. Jenkins, 758 F.Supp. 1194, 1195 (W.D.Ky. 1990) (citing United States v. Daly, 535 F.2d 434, 442-43 (8th Cir. 1976) (where one of seven agents listened to all intercepted communications and recorded only those he deemed incriminating, the court held the violation was de minimus and the minimization requirement was met since that agent "monitored less than 10% of the conversations involved.")). As the Supreme Court has stated, "[n]ot every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications `unlawful.'" United States v. Chavez, 416 U.S. 562, 574-75, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Adams's motion to suppress on this ground should therefore be DENIED.

II. Request for a Franks Hearing

Defendants Adams and Richard Mullen move for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) asserting that (1) the eavesdrop applications for the Intercept Orders should have informed, but failed to do so, the issuing court of any written documentation describing agreements made between confidential sources, relied upon on the applications, and law enforcement agencies so the court could better assess the credibility of the sources; (2) Agent Kasprzyk's opinion that Richardson was packaging cocaine at 928 Humboldt Parkway was unsupported by facts and was a deliberate attempt by Agent Kasprzyk to mislead the magistrate judge into issuing a search warrant for Richardson's home; (3) no physical surveillance established Adams was present at 928 Humboldt Parkway; and (4) the judge should have determined the reliability of the information contained in the affidavits supporting the wiretap orders. LaTona Affidavit ¶¶ 61-62, 94-96; Eoannou Affirmation ¶ 97.

Under Franks, evidence obtained pursuant to a warrant based on materially false and misleading information is not admissible absent a hearing at which it is determined whether, setting aside the false statements, sufficient independent evidence was presented to the judicial officer such that the warrant was, notwithstanding the tainted information, issued on probable cause. Franks, supra, at 155-56, 98 S.Ct. 2674. Moreover, before a defendant is entitled to a hearing to test the truthfulness of a warrant's underlying affidavits, the "defendant must make a `substantial preliminary showing' that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the judge's probable cause finding." United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998) (citing United States v. Levasseur, 816 F.2d 37, 43 (2d Cir. 1987)), cert. denied, 525 U.S. 1112, 119 S.Ct. 885, 142 L.Ed.2d 785 (1999). Additionally, a hearing is not required where an affidavit in support of a search warrant application contains material allegedly presented with "deliberate falsity or reckless disregard" for the truth if "when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause." Franks, supra, at 171-72, 98 S.Ct. 2674; United States v. Ferguson, 758 F.2d 843, 849 (2d Cir.), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 125, 88 L.Ed.2d 102 (1985). As relevant here, Franks has been limited to the statements contained in the affidavit based on the investigator's personal knowledge and does not extend to the information an informant may have provided to the applicant. United States v. Wapnick, 60 F.3d 948, 956 (2d Cir. 1995), cert. denied, 517 U.S. 1187, 116 S.Ct. 1672, 134 L.Ed.2d 776 (1996).

In this case, neither Adams nor Mullen has made a "substantial preliminary showing" that the asserted omissions, if true, were material to the probable cause finding upon which the eavesdropping warrants were based. Nor, significantly, has either Defendant made a "substantial preliminary showing" that Agent Kasprzyk, or any other affiant in this case, knowingly and recklessly made false statements in their applications for the eavesdropping warrants such that there could be no reasonable belief that the warrants were issued with probable cause. Accordingly, Adams's and Mullen's requests for a Franks hearing are DENIED.

III. Request for a Taint Hearing

Defendants Adams, Cooper, Ayanna Nolley, Drake, Palmer, Sanger and Terry Mullen request the court to conduct a "taint" hearing to ascertain the full effect of the asserted illegal electronic surveillance on the Government's expected evidence at trial in this case, suppressing any resulting evidence obtained by exploiting an initial illegality on the part of the Government during the underlying investigation in this case. The Government maintains that no taint hearing is necessary as Defendants have failed to establish any illegality in the electronic surveillance at issue. Government's Response at 50-51.

Where a defendant seeks a "taint" hearing, the question presented is whether the evidence to which objection is made has been obtained by the exploitation of illegal government conduct, or by sufficiently different or distinguishable means so as to be "purged," of any initial illegality. See Brown v. Illinois, 422 U.S. 590, 597-99, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The proponent of a taint hearing has the initial burden of "producing specific evidence demonstrating taint in a substantial portion of the Government's case against him." United States v. Sapere, 531 F.2d 63, 66 (2d Cir. 1976); see also Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

In this case, the court has found that the Intercept Orders at issue were issued with probable cause, upon a proper showing of necessity, the orders were not improperly executed, and were properly minimized. Discussion, supra, at 526-30, 532, 535-39. Defendants have thus failed to demonstrate any primary illegality with respect to any of the Intercept Orders, no other potential illegality is alleged by Defendants, and their request for a taint hearing should therefore be DENIED.

IV. Suppression of Evidence Obtained From Search Warrants

Defendants Richard Mullen, Terry Mullen, Palmer, Adams, and Stranc all challenge evidence obtained from search warrants issued in this case.¹⁹ The court addresses Defendants' challenges as follows:

19 As noted, Defendant Stranc entered a guilty plea on December 19, 2005, and his motion is therefore deemed withdrawn. (Docket Item No. 285).

A. Defendant Richard Mullen's challenge to evidence obtained pursuant to the search warrants executed on August 2, 2004 at his residence, place of business and for his 1998 Ford Expedition ²⁰

20 The initial Indictment upon which the arrest and search warrants were based was filed on July 29, 2004, and alleged the conspiracy was in existence from September 2001 to the date the Indictment was returned, Doc. No. 1 at 2; the Second Superseding Indictment filed April 28, 2005 alleged the conspiracy existed until August 3, 2004. Doc. No. 116 at 3.

Defendant Richard Mullen argues that evidence obtained pursuant to the warrants for his residence at 90 Sussex Place in Buffalo, New York, for his place of business at 1202 E. Delevan Avenue in Buffalo, and for his 1998 Ford Expedition, which was searched in Henrietta, New York, must be suppressed. Eaonnou Affirmation ¶¶ 98-108; Supplemental Response to Government's Response to Defendants' Omnibus Motions ¶ 1 ("Government's Supplemental Response") (Docket Item No. 328). Specifically, Mullen contends that (1) the affidavit supporting the search warrants contains information which is the fruit of an illegal search (the Intercept Orders directed to Mullen), and that (2) Agent Kasprzyk's allegations in his affidavit in support of the challenged search warrants, dated August 2, 2004, do not constitute probable cause. Eoannou Affidavit ¶¶ 98-101. For example, Mullen contends that his asserted use of the Ford Expedition is insufficient to demonstrate probable cause to secure the vehicle. Eoannou Affidavit ¶ 107. The Government argues that Agent Kasprzyk's affidavit supports a finding of probable cause for each search warrant and that Kasprzyk specifically informed the issuing magistrate judge that the Defendant was charged with numerous drug trafficking offenses in a sealed Indictment. Government Response at 51. The Government further contends that the Indictment constitutes " prima facie proof of the existence of probable cause that defendant had committed the crimes charged therein," that Kasprzyk's affidavit was the result of a 20-month investigation and 13 Title III electronic surveillance orders. Id. at 53. The Government does not specifically address Mullen's contention that the search warrant for his vehicle, the Ford Expedition, was without probable cause.

The Government also acknowledges that Agent Kasprzyk admitted he had "no specific information" connecting the drugs to Richard Mullen's residence at 90 Sussex in Buffalo, New York in his affidavit. Government Response at 54. However, the Government submits that "after admitting he had no specific information that the drugs were being stored at defendant's residence, . . . [Agent Kasprzyk] sought a so-called "books and records" search warrant" for these locations, relying on United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) where the court determined an agent's expert opinion that drug traffickers typically keep material related to the conspiracy in their homes is a factor contributing to good faith. Government Response at 54. Finally, the Government, referring to Kasprzyk Affidavit ¶ 106(h), maintains that Mullen failed to demonstrate that Agent Kasprzyk made any "deliberately false" statements or that the Agent demonstrated a "reckless disregard for the truth" to warrant a Franks hearing. Id.

As stated, Agent Kasprzyk admitted he had "no specific information" connecting the drugs to Mullen's residence in his affidavit. Agent Kasprzyk Affidavit ¶ 106. In his affidavit, however, Kasprzyk further explains that based on his experience and participation in narcotics investigations, dealers involved in narcotics trafficking, such as those who deal in quantities of cocaine and heroin, frequently maintain at their residences or places of business, or other secure premises to which they have access, cocaine, heroin, and currency to finance their business, as well as books, records, receipts, names and addresses of associates, and other papers relative to their narcotics distribution organization, firearms, ammunition, and paraphernalia for packaging, diluting, cutting, weighing, processing and distributing narcotics. Id. ¶ 106(a)-(g). As such, Agent Kasprzyk requested a so-called "books and records" search warrant for Mullen's residence. ¶ 106(h); Government Response at 54. Specifically, in his affidavit, Kasprzyk relied upon the opinion in United States v. Fama, supra, which states

While probable cause to arrest does not necessarily give rise to probable cause to search . . . [the affiant] had stated in the affidavit that his ten [sic] year experience as a DEA agent had taught him the major drug traffickers frequently maintain at their homes large amounts of cash, drugs, books, ledgers, and other documents evidencing their criminal activities. A number of cases have ruled that an agent's expert opinion is an important factor to be considered by the Judge reviewing a warrant application. * * * Thus it should also be a factor contributing to objective good faith.²¹

United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) (internal citations omitted); Id. ¶ 106(h).

21 Bracketed material added.

Based on the holding in Fama, supra, that an agent's expert opinion that drug traffickers typically maintain "large amounts of cash, drugs, books, ledgers, and other documents evidencing their criminal activities . . . should be considered a factor contributing to objective good faith," and because the challenged search warrant authorized the executing agents to search not only for quantities of cocaine, but also for "books, notes, ledgers, and other documents and records which is evidence, fruits and instrumentalities of the manufacture and distribution of cocaine" at Mullen's residence, place of business ("Rich-Po Enterprises") at 1202 E. Delevan Avenue, Buffalo, New York, the court finds the absence of any specific information connecting suspected drugs to Mullen's residence at 90 Sussex in Buffalo, New York, or Mullen's place of business, in the agent's supporting affidavit does not invalidate the search warrant. See Fama, 758 F.2d at 838. This judicial officer thus properly inferred, relying on Kaspyzyk's experience as stated in the affidavit, that based on Mullen's status as a leader of the large-scale and on-going narcotics conspiracy, as charged by the Indictment, Mullen's residence would yield evidence of narcotics trafficking. Fama, 758 F.2d at 838 (court considered opinion of agent employed by the DEA for 10 years that "major drug traffickers frequently maintain at their homes large amounts of cash, drugs, books, ledgers and other documents evidencing their criminal activities" a factor contributing to "objective good faith"); United States v. Dillon, 810 F.Supp. 57, 62 (W.D.N.Y. 1992) (court found evidence uncovered by canine sniff in Buffalo airport and magistrate judge's reliance on Buffalo police officer's six-year experience as a DEA agent reasonable to support probable cause determination underlying warrant application for Defendant's residence). As Fama supports issuance of the search warrant directed to a narcotics trafficker's home, Mullen's motion directed to the search of his residence must fail.

Irrespective of the fact that Agent Kasprzyk also candidly admitted that information did not indicate that narcotics or other related contraband and evidence were located at Mullen's business or in his vehicle, given that the investigation revealed Mullen's narcotics distribution ring remained in operation when the warrants were obtained, it was a reasonable and common sense inference to believe that as the conspiracy's leader, Mullen's business and auto, like Mullen's residence, would also contain such evidence. It was therefore not illogical or unreasonable for the issuing magistrate judge to infer that such evidence of the charged offenses would be located in either Mullen's residence or business establishment, which investigators believed was a front for the conspiracy, or Mullen's vehicle which investigators knew Mullen relied on for transportation. According to the initial Indictment, filed July 27, 2004, the Grand Jury found Mullen's drug conspiracy was in operation up to that date, the day the warrants were issued. Doc. No. 1 at 2.

Accordingly, the absence of any specific information more conclusively suggesting that contraband or evidence of Mullen's narcotics trafficking was located at Mullen's E. Delevan place of "business" or his vehicle, as of August 2, 2004 the date the warrants were issued based on the first Indictment, does not require suppression. United States v. Gaskin, 364 F.3d 438, 456-57 (2d Cir. 2004) (Fourth Amendment's requirement of a "fair probability" that evidence of crime exists necessary to support issuance of a warrant may be established based on experience and evaluation of facts by trained police officer), cert. denied, 544 U.S. 990, 125 S.Ct. 1878, 161 L.Ed.2d 751 (2005). It was reasonable to infer that if the conspiracy was, according to the Grand Jury, in operating as to July 27, 2004, evidence of such operation fact would continue to be in Mullen's possession as of August 2, 2004.

As discussed, Discussion, supra, at 526-30, 532, 535-39, the court has found that the Intercept Orders were properly issued. This determination thus extinguishes Mullen's contention that because the affidavit by Agent Kasprzyk, supporting the search warrants, contains information from the wiretaps which Defendant argues is the fruit of an illegal search, suppression of all search warrants relying on such information is required. Eoannou Affirmation ¶¶ 100, 102-104.

As noted, the Supreme Court has established the "totality of the circumstances" test for the determination of probable cause under the Fourth Amendment with regard to a search warrant. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The issuing judicial officer must "make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. Further, resolution of marginal cases should be determined by the preference afforded to warrants. United States v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993).

A 162-page affidavit provided by Special Agent Kasprzyk ("Kasprzyk Affidavit") which included the incriminating communications intercepted pursuant to the Intercept Orders was submitted in support of the search warrants challenged by Mullen. The Kasprzyk affidavit, which is based, in part, on information provided by Frederick Nolley and the informants CS-1, CS-2, CS-3, and CS-4, provides numerous details of the charged narcotics trafficking conspiracy. Kasprzyk Affidavit ¶¶ 4-43. The court thus finds that, under the totality of the circumstances standard enunciated by Gates, supra, the warrants issued against Mullen were based upon probable cause. As discussed, supra, pursuant to the Fama case, a reasonable nexus between the narcotics conspiracy, as charged in the Indictment, and Mullen's residence was also established. Further, a trained and experienced narcotics investigator's evaluation of the facts of the instant investigation, particularly in light of the initial indictment returned on July 24, 2004, established probable cause to search on August 2, 2004 Mullen's business location and vehicle. Gaskin, supra. As such, Defendant Mullen's motion to suppress on this ground should be DENIED.

B. Defendant Palmer's challenge to evidence obtained pursuant to the search warrant executed for 475 Shirley Avenue

Defendant Palmer argues that there is no substantial basis to believe the evidence sought from 475 Shirley Avenue would be found there when the premises were finally searched because, as Palmer argues, the search warrant was based on intercepted conversations which occurred more than four months earlier, and therefore the information was too stale to support the requested search warrant. Palmer Motion ¶¶ 18-25.

As discussed, Discussion, supra, at 543-42, in connection with Mullen's attack on the search warrant for his residence, the warrants sought in this case authorized the executing agents to search for "books and records" in addition to cocaine and narcotics and were properly issued pursuant to Fama, supra. In United States v. Feola, supra, the court held that search warrants issued for "books and records" of a criminal enterprise "remain fresh for probable cause purposes for years." Feola, 651 F.Supp. at 1090-91. Also, "when the supporting facts `present a picture of continuing conduct or an ongoing activity, . . . the passage of time between the last described act and the presentation of the application becomes less significant.'" United States v. Ortiz, 143 F.3d 728, 732 (2d Cir.) (quoting United States v. Martino, 664 F.2d 860, 867 (2d Cir. 1981), cert. denied, 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982)), cert. denied, 525 U.S. 910, 119 S.Ct. 252, 142 L.Ed.2d 207 (1998). "Indeed, narcotics conspiracies are the very paradigm of the continuing enterprises for which the court have relaxed the temporal requirements of non-staleness." Ortiz, supra, at 733 (internal quotation omitted). Informants' statements given two years before the issuance of a wiretap warrant in a narcotics conspiracy have withstood a staleness challenge given the likely continuous nature of the conspiracy. Rowell, supra, at 903.

In the instant case, the information derived from evidence obtained through the electronic Intercept Orders pertinent to Defendant Palmer was approximately four months old when presented by Agent Kasprzyk in support of the search warrant. Palmer Motion ¶¶ 18-25. The court finds such information was temporally probative of the alleged conspiracy, and was significantly more current than the information supporting the wiretap warrant sustained in Rowell, supra. Accordingly, Palmer's motion to suppress on this ground should be DENIED.

C. Defendant Adams's challenge to evidence obtained pursuant to the search warrant executed for 928 Humboldt Parkway, Upper

Defendant Adams contends that the application for the warrant to search 928 Humboldt Parkway, upper, does not "reflect any factual allegations which reflect why the confidential informants were reliable." LaTona Affidavit ¶ 87. Further, Adams argues that the application fails to state whether any physical surveillance of the property was conducted or whether "any informant or data indicated that any contraband was at the premises." Id. Finally, Adams alleges the information from the conversations intercepted on February 24, 2004, April 8, 2004 and May 9, 2004, do not provide probable cause to believe contraband would be located on the premises, and further, that the conversations were stale by August 2, 2004, the date the search warrant was executed. LaTona Affidavit ¶¶ 87-91. Defendant Adams offers no authority in support of this latter contention.

Contrary to Adams's contention, the court, in addressing Defendant Palmer's motion to suppress based upon a defective search warrant, Discussion, supra, at 544-45, has determined that the information derived from evidence obtained through electronic intercept orders that is less than two years old when applying for a search warrant which concerns a largescale narcotics conspiracy, like the instant case, is not stale. As such, Defendant Adams's motion to suppress on this ground should be DENIED.

Notwithstanding the staleness issue, Adams also alleges that the application for the warrant to search 928 Humboldt Parkway, upper, Adams's residence, does not provide a basis upon which the reliability of the confidential informants may be determined and fails to state whether any surveillance of the property was conducted. LaTona Affidavit ¶ 87. A plain reading of Agent Kasprzyk's affidavit in support of the search warrant demonstrates the contrary.

In his affidavit, Agent Kasprzyk states that information received from Nolley, CS-1, CS-3 and CS-4 has been reliable and accurate because it was "corroborated by independent sources of information" where possible, and because these informants have made numerous admissions against penal interest in providing this information. Kasprzyk Affidavit ¶¶ 4, 15, 34, 38. Moreover, despite any questions going to the reliability of CS-2, the information upon which the DEA investigators based their determination that Adams resided at 928 Humboldt Parkway, upper, was based on a combination of facts, including "wire intercepts, telephone subscriber records, utility checks, information from confidential informants and physical surveillance." Kasprzyk Affidavit ¶ 69. Therefore, even if these confidential informants were proven to be unreliable, it would not necessarily defeat a finding of probable cause regarding Adams's residence that was based on a combination of facts, as is the case here. Thus, Adams's motion to suppress on this ground should be DENIED.

Finally, Adams claims that no informant or data indicated contraband was at Adams's residence. LaTona Affidavit ¶ 87. As stated, Discussion, supra, at 542, Agent Kasprzyk acknowledged in his affidavit that he had "no specific information" connecting the drugs to the residences described in the warrant applications. Kasprzyk Affidavit ¶ 106. Notwithstanding, Agent Kasprzyk further explained that based on his experience and participation in narcotics investigation, dealers involved in narcotics trafficking typically keep narcotics and drug-related items where they reside relying on United States v. Fama, supra. Id. ¶ 106(a)-(g). The court has previously found the absence of informant information or data specifically indicating that contraband is presently at the premises is not determinative of the validity of the search warrant. Discussion, supra at 543. Instead, the agent's experience in investigating narcotics conspiracies is sufficient to establish probable cause for issuing a search warrant to seize a narcotics trafficker's books and records likely to be located at the trafficker's residence. Kasprzyk Affidavit ¶ 106(h). As such, the agent's reliance upon Fama, supra, was reasonable. Therefore, any lack of evidence in the Agent's affidavit that contraband was actually at Adams's residence does not require suppression.

Accordingly, Defendant Adams's motion to suppress on this ground should be DENIED.

D. Defendant Terry Mullen's challenge to evidence obtained pursuant to the search warrant executed for 90 Sussex Street, Lower

Defendant Terry Mullen contends that agents who searched the lower apartment at 90 Sussex Street in Buffalo, New York on August 3, 2004 did not represent they had a search warrant authorizing them to do so, but that if agents did possess a search warrant for the premises, it was not based upon probable cause, and failed to particularly describe the premises to be searched. LaMendola Affidavit ¶¶ 44-48. A careful review of Defendant's papers provides no support for these generalized contentions. To the contrary, the record establishes that the agents did obtain a federal search warrant for the premises on August 2, 2004. Government's Response, Exhibit 14. Additionally, the warrant specifically identified the property to be seized in a Schedule of Items to be Seized, attached as an exhibit to the warrant application. Kasprzyk Affidavit Exhibit B. Among the items listed are controlled substances, such as cocaine, cocaine base and heroin, financial records relative to the purchase and distribution of narcotics, safe deposit box keys, paraphenalia for cutting, weighing and distributing narcotics, and indicia of ownership or occupancy of the premises to be searched. Id. Significantly, Terry Mullen does not allege that he made a request to examine the search warrant which was refused by the executing agents. See Fed.R.Crim.P. 41(f)(3)(A) (executing officer must provide copy of the warrant and receipt of seized property to person whose property items were seized). Even if the agents failed to provide Mullen with a copy of the warrant, failure to comply with these warrant execution requirements are ministerial violations and absent a showing of prejudice to the accused or the agent's deliberate disregard of rule, suppression is not an available remedy. United States v. Amendola, 558 F.2d 1043, 1045 (2d Cir. 1977) (citing cases) (decided under former Fed.R.Crim.P. 41(d)). Mullen makes no attempt to demonstrate such prejudice or abusive conduct by the executing agents. As such, the violations asserted by Mullen, if they occurred, are ministerial in nature, and do not warrant suppression. In its discussion of challenges to particular search warrants interposed by other Defendants, the court has determined the search warrants were based upon probable cause, citing Fama as authority for the "books and records" portion of the warrant directed to Mullen's residence, and by finding several of the informants, including Frederick Nolley, to be reliable. Discussion, supra, at 530, 541-46.

Accordingly, Defendant Terry Mullen's motion to suppress on this ground should be DENIED.

E. Evidence Obtained Pursuant to a Vehicle Stop and Subsequent Warrantless Search in Kansas in March, 2003

Defendants Richard Mullen and Stranc move to suppress evidence seized from the warrantless search of a rental vehicle Defendant Stranc was driving in Kansas on March 4, 2003. The Government contends that Stranc is the only person with standing to challenge this search, and that the vehicle was properly stopped in Thomas County, Kansas, and that Stranc consented to the search. Government's Response at 59-63. At oral argument on the instant motion, Mullen acknowledged he does not have standing to move to suppress evidence resulting from this vehicle stop. Docket Item No. 252. As such, the court DISMISSED Mullen's motion to suppress on this ground as moot. Defendant Stranc pleaded guilty on December 16, 2005; accordingly, his motion is deemed withdrawn and the question of the search of Stranc's car in Kansas does not require adjudication.

V. Suppression of Defendants Funderburk's and Palmer's Statement

Defendants Funderburk and Palmer move to suppress statements they made to authorities after being arrested. Specifically, Defendant Funderburk alleges that he may not have been advised of his Miranda rights when he made statements to the law enforcement agents on August 3, 2004 at his residence. Funderburk Motion ¶¶ 5-6. As such, Funderburk requests notice of intention from counsel to use such statements and a full description of the circumstances in which these statements were made. Additionally, Funderburk moves to suppress statements taken in violation of his Fifth Amendment rights, or requests a hearing in the alternative. Defendant Palmer contends he gave a statement under duress which detailed his own drug activities but had no connection to the narcotics conspiracy at issue. Specifically, Palmer alleges that Government agents threatened to arrest his wife, which would result in his children being placed in foster care. Palmer Motion ¶ 26. Accordingly, Palmer moves to suppress his statement and requests a hearing into the circumstances surrounding the taking of his statement.²² Palmer Motion ¶¶ 26-28.

22 Palmer is scheduled to plead before the undersigned on March 9, 2006. Docket Item No. 296. Should the plea not take place, the Government is directed to schedule further proceedings on Palmer's motion.

The Government maintains that Palmer and Funderburk "were properly advised of the Miranda warnings and indicated that they understood those rights." Government Response at 64. The Government further asserts it was after they were advised of their rights that they made statements to police, but agrees that "an evidentiary hearing may be in order to establish the facts surrounding the arrests [sic] of each defendant and giving of statements that followed." Id. Finally, the Government denies that police threatened Palmer's wife. Id. An evidentiary hearing on Funderburk's motion was conducted before the undersigned on December 12 and December 19, 2005. Docket Item Nos. 284, 288. A briefing schedule was established, and the court reserved decision. A further Report and Recommendation directed to Funderburk's motion seeking suppression of his post-arrest statement will be submitted following the filing of the transcript of the hearing and the parties' briefs in accordance with such schedule. An evidentiary hearing on Palmer's motion is scheduled for March 9, 2006; however, as noted, Palmer is now scheduled to plead. Accordingly, Palmer's motion is deemed conditionally withdrawn without prejudice, based on his anticipated plea.

VI. Motion to Dismiss Count 2 of the Indictment

Defendant Pressley moves to dismiss Count 2 of the Indictment against him. Specifically, Defendant Pressley contends that Count 2 of the Indictment must be dismissed for lack of sufficiency. Pressley Motion at 3. The Government opposes Defendant Pressley's motion, arguing "an indictment is no longer required to be technically perfect, and will not be dismissed if the defect within it does not prejudice the defendant," citing Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959). Government Response at 65. The Government further contends that an indictment is valid if it offers "a plain, concise and definite written statement of the essential facts constituting the offense charged." Government's Response at 65 (citing Fed.R.Crim.P. 7(c)(1)).

As noted, Defendant Pressley is charged in Count 2 with knowingly, willfully and unlawfully conspiring with others to possess, with intent to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 21 U.S.C. § 846 (" § 846"). The form of an indictment is governed by Fed.R.Crim.P. 7(c)(1) which provides that "the indictment . . . shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged." United States v. Macklin, 927 F.2d 1272, 1276 (2d Cir.), cert. denied, 502 U.S. 847, 112 S.Ct. 146, 116 L.Ed.2d 112 (1991). To satisfy this standard, "[t]he facts alleged must be adequate to permit a defendant to plead former jeopardy upon prosecution. The indictment must also be sufficiently specific to enable the defendant to prepare a defense." United States v. Carrier, 672 F.2d 300, 303 (2d Cir. 1982), cert. denied, 457 U.S. 1139, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982). These principles have been held to apply to a conspiracy charged under 21 U.S.C. § 846. Macklin, supra, at 1276. Further, the Supreme Court has held that an indictment returned by a federal grand jury may not be challenged on the ground that it is supported by inadequate or incompetent evidence. United States v. Williams, 504 U.S. 36, 54, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992).

An indictment under § 846 "need only allege the existence of a narcotics conspiracy, a relevant time frame, and the statute alleged to be violated." Macklin, supra (citing United States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976)). Moreover, an indictment alleging a conspiracy under § 846 need not allege specific overt acts in furtherance of the conspiracy, as the conspiracy to distribute narcotics is itself a specific crime. Bermudez, supra, at 95.

Here, the Indictment alleges that Defendants, including Defendant Pressley, participated in the charged cocaine trafficking conspiracy between September 2001 and on or about August 3, 2004, in violation of § 846 (Docket Item No. 116 at 3). Accordingly, the Indictment sufficiently charges Pressley with participating in a narcotics trafficking conspiracy. Based on the foregoing, Defendant Pressley's motion to dismiss Count 2 of the Indictment should be DENIED.

VII. Hargrave's Motion to Dismiss the Indictment

As stated in the Decision and Order issued contemporaneously with this Report and Recommendation ("Decision and Order"), Defendant Hargrave moved the court to review in camera minutes from the Grand Jury or to dismiss the Indictment, arguing that the testifying agent's reference in the affidavit in support of the Complaint to a conversation which allegedly took place between Defendants Richard Mullen and Hargrave on June 22, 2004 ("the 26-5 conversation") was taken out of context so as to have "deliberately distorted the true meaning of the words spoken to provide at least the semblance of probable cause." Defendant Hargrave's Memorandum of Law at 2 (Docket Item No. 153) ("Hargrave Memorandum"). In the Decision and Order, the court determined it would not, as Hargrave requested, require an in camera inspection of the relevant Grand Jury testimony pertaining to the conversation at issue, because, even assuming the agent testified as posited by Hargrave, "where subsequent events merely cast doubt on the credibility of grand jury witnesses, due process does not require the prosecution to notify the grand jury of those events and seek a new indictment." United States v. Guillette, 547 F.2d 743, 753 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977). Decision and Order at 24.

For the purposes of the instant motion, the court considers it possible, assuming the agent in fact testified as Hargrave argues, that the agent failed in his testimony to describe the entirety of the 26-5 intercepted conversation, a supposition formed by Hargrave after review of the pertinent wiretap transcript, showing the entirety of the 26-5 conversation. However, the court also finds the face of such arguably incomplete, and thus potentially misleading, testimony to be a "subsequent event" within the holding of Guillette. Importantly, Hargrave does not allege that the testifying agent committed perjury or that the Government condoned or relied on any intentional misrepresentation of the intercepted conversation by the agent in seeking the Indictment against Hargrave. See Boyd v. City of New York, 336 F.3d 72, 77 (2d Cir. 2003) (presumption that an indictment is supported by probable cause can be rebutted by alleging it was obtained by "fraud, perjury, the suppression of evidence or other bad faith police conduct"); United States v. Schwartz, 464 F.2d 499, 511 (2d Cir.) ("As long as there is some competent evidence to sustain the charge issued by the Grand Jury, an indictment should not be dismissed"), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972).

Absent any reason to believe the Government solicited or knowingly condoned perjured testimony by the agent in connection with the testimony at issue, there is no basis to dismiss the Indictment as to Hargrave. In Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988), where IRS agents provided "misleading and inaccurate summaries" to the grand jury, the Supreme Court determined there was nevertheless insufficient grounds to dismiss the indictment as there was no evidence of prosecutorial misconduct as to such misleading and inaccurate evidence. Bank of Nova Scotia, 487 U.S. at 260-61, 108 S.Ct. 2369. See also United States v. Strouse, 286 F.3d 767, 774-75 (5th Cir. 2002) ("What the Williams Court's reliance on Nova Scotia makes clear, then, is that the misconduct that amounts to a violation of one of those few clear rules [justifying possible dismissal] . . . must involve government misconduct") (bracketed material added). Thus, standing alone, misleading testimony by a federal agent before a federal grand jury, does not warrant dismissal as a sanction.

As the court noted in the Decision and Order, even assuming, arguendo, that the agent misled the Grand Jury, as Hargrave implies, deliberately or inadvertently, into indicting Hargrave by presenting an incomplete portion of the 26-5 conversation as evidence of Hargrave's involvement in the Mullen narcotics conspiracy (which involvement may not arguably have been inferred if the Grand Jury had reviewed the entire 26-5 conversation), no evidence is submitted by Hargrave even suggesting the Government knew of the misleading nature of such testimony, or that the Government should have determined that the agent's assessment that the conversation related to drugs could not be based on his experience with narcotics trafficking conversations, but was instead a purposeful attempt to mislead the Grand Jury.²³

23 As a result of voluntary discovery of the relevant Title III orders and related documents following arraignments on the initial Indictment and the Fed.R.Crim.P. 5 proceedings on the Complaint which named Hargrave, it is conceivable that the Government attorney could have become aware of the incomplete nature of the 26-5 conversation if presented to the Grand Jury as Hargrave has suggested and failed to take steps to obviate the potential prejudice to Hargrave prior to the return of the Superseding Indictment, adding Hargrave to the Conspiracy Count, in January 2005. However, Hargrave makes no such argument.

Hargrave has therefore failed to support any finding that the Government was complicit in misconduct, including perjury or wilful misleading of the Grand Jury, sufficient to support dismissal. Moreover, significantly, at oral argument, the Government represented that other evidence before the Grand Jury implicated Hargrave in the conspiracy as charged in Count 2 of the Indictment. As such, Defendant Hargrave's motion to dismiss the Indictment should be DENIED.

VIII. Edmond's Motion to Dismiss the Indictment

Defendant Edmond moves to dismiss the Indictment as against her. Edmond Attorney Affirmation ¶¶ 7-8. Edmond claims her conversations do not appear on any wiretap evidence, and that the only evidence the Government has against her is "the fact that she apparently rented some vehicles for one or more of the co-defendants [ e.g., Stranc] and she apparently took some trips with the lead defendant, Richard Mullen." Id. at 7 (bracketed material added). The Government does not address this issue.

It is well-established that the grand jury exists not to determine guilt or innocence, but to assess whether there is an adequate basis for bringing a criminal charge. Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). As such, "[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." Costello v. United States, 350 U.S. 359, 364, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (declining to enforce the hearsay rule in grand jury proceedings as to do so "would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules"). Moreover, "unsupported suspicions of grand jury abuse by the prosecution did not justify disturbing the secrecy of the grand jury's proceedings." United States v. Ullah, 2005 WL 629487 * 14 (W.D.N.Y. 2005).

"A grand jury is neither an officer nor an agent of the United States, but a part of the court." Falter v. United States, 23 F.2d 420, 425 (2d Cir.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928). Further, to ensure a grand jury's independence, a district court has limited supervisory authority over the grand jury. United States v. Williams, 504 U.S. 36, 46-47, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). As a result, any power which a federal court may have over a grand jury is highly circumscribed, not "remotely comparable" to the power which state courts maintain over their own grand jury proceedings. Williams, supra, at 50, 112 S.Ct. 1735. In Williams, the Supreme Court went beyond Costello, supra, holding that a challenge to the sufficiency of a federal grand jury's evidence, recast as a claim that the prosecutor's presentation was incomplete or misleading, is inadequate to require dismissal of an indictment. Williams, supra, at 54, 112 S.Ct. 1735.

Essentially, Defendant Edmond seeks to litigate her culpability, or lack thereof, on pretrial motion to dismiss the Indictment; however, such pretrial determinations may not be obtained in a federal criminal prosecution. See Costello, supra. Defendant Edmonds will have an opportunity at trial to test the evidence presented against her which allegedly links her to the conspiracy sufficient for a finding of guilty under Count 2. As such, Defendant Edmonds' motion to dismiss the Indictment as against her should be DENIED.

IX. Motion to Exclude Post-Arrest Statements Made by Non-Testifying Co-Conspirators

Defendants Pressley and Funderburk move to exclude from evidence any post-arrest statements made by non-testifying co-conspirators which would implicate either Defendant. Funderburk's Motion at 3; Pressley's Motion at 17-18. In support, Defendants rely upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), appeal after remand, 416 F.2d 310 (8th Cir. 1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1248, 25 L.Ed.2d 428 (1970), where the Supreme Court found that a non-testifying co-defendant's confession that was admitted at a joint criminal trial which "facially incriminated" the defendant violated the defendant's Sixth Amendment right to confront adverse witnesses. Funderburk's Motion at 4; Pressley's Motion at 18. The Government has not stated whether it plans to introduce such statements at trial, nor has it provided such statements to the Defendants. Further, the Government has not in its Response or at Oral Argument, specifically opposed Pressley's and Funderburk's motions to exclude, under Bruton, post-arrest statements made by non-testifying co-conspirators.

"The Second Circuit has held that a defendant's Bruton rights [are] violated . . . only if the statement, standing alone, would clearly inculpate him without introduction of further independent evidence." Comfort v. Kelly, 1998 WL 384613 (W.D.N.Y. 1998) (internal quotation marks omitted) (quoting United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir. 1985), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985)). Further, the Supreme Court in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), refused to apply Bruton to a non-testifying co-defendant's confession submitted with a proper limiting instruction by the court so long as "the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Richardson, 481 U.S. at 211, 107 S.Ct. 1702. However, where redacted confessions "facially incriminat[ed]" the defendant and "involve[d] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial," the redacted confession violates a Defendant's Sixth Amendment rights. United States v. Sanin, 252 F.3d 79, 84 (2d Cir. 2001) (quoting Gray v. Maryland, 523 U.S. 185, 197, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) (where government witness used the word "deleted" in place of blank spaces and, after reading the confession to the jury, informed them that he arrested defendant upon receipt of the co-defendant's statement)), cert. denied, 534 U.S. 1008, 122 S.Ct. 492, 151 L.Ed.2d 403 (2001).

Based on the applicable caselaw, the absence of any indication that the Government intends to use statements arguably subject to Bruton and absent a well-grounded proffer by Defendants that a nontestifying defendant's confession, if introduced, will be the sole inculpatory evidence offered against them, Defendants Pressley's and Funderburk's motions are DISMISSED without prejudice to renewal at trial should the Government attempt to introduce statements subject to Bruton's requirements.

X. Defendant Pressley's Motion to Exclude Testimonial Hearsay

Defendant Pressley moves to exclude testimonial hearsay from evidence at trial, arguing that such evidence is barred by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) as violative of the Sixth Amendment. Pressley Motion Part XIV. Pressley contends testimonial hearsay which is barred includes hearsay from nontestifying "witness[es]," "target[s]," or "co-defendant[s]."²⁴ Pressley Motion Part XIV. The Government does not respond to Defendant Pressley's request.

24 Bracketed material added.

In Crawford, the Supreme Court modified the holding in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which allowed hearsay evidence if it qualified as an exception to the hearsay rule or if it had "particularized guarantees of trustworthiness." Crawford v. Washington, 541 U.S. 36, 60, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Instead, the Court established a bright-line rule that "prior testimonial statements . . . are never admissible against a defendant unless he had an opportunity to cross-examine [the] declarant, regardless of whether the out-of-court statement falls within a firmly rooted hearsay exception or has particularized guarantees of trustworthiness."²⁵ Haymon v. New York, 332 F.Supp.2d 550, 556 (W.D.N.Y. 2004) (citing Crawford, supra, at 40, 124 S.Ct. 1354). In Crawford, the Supreme Court did not specifically define the term "testimonial statement." Id. at 557. However, the Court in Crawford identified as "testimonial" statements "prior testimony at a preliminary hearing, previous trial, or grand jury proceeding, as well as responses made during police interrogations." Id.; see also Crawford, supra, at 68, 124 S.Ct. 1354. Additionally, a declarant's "recorded statement, knowingly given in response to structured police questioning" will be considered testimonial. Haymon, supra, at 557.

25 Bracketed material added.

As neither the Government nor Pressley has proffered any statement the Government intends to use at trial which may be subject to Crawford, the court finds Pressley's motion premature. Moreover, it cannot be disputed that incriminating statements made by co-conspirators in furtherance of the conspiracy, admissible as exceptions to the hearsay rule, are therefore not presently considered to be within the prohibition as "prior testimonial statements," to the extent established by Crawford. Crawford, supra, at 51, 124 S.Ct. 1354; Haymon at 557. Accordingly, Pressley's motion is DISMISSED without prejudice to renewal at or prior to trial before the District Judge should the Government attempt to introduce evidence subject to Crawford's holding as part of its case-in-chief.

CONCLUSION

Defendants' motions should be DENIED in part, and DISMISSED as moot in part.

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

ORDERED that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of service of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).

Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendants.

SO ORDERED.

February 24, 2006.