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United States v. Salgado

United States District Court, D. Nevada

February 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROSENDO SALGADO, Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         Rosendo Salgado moves to vacate, set aside, or correct his sentence. ECF No. 95. The government opposed the motion, and Salgado filed a reply. ECF Nos. 99, 118. The court now denies the motion, finding Salgado's claim for ineffective assistance of counsel is meritless and finding Salgado's remaining claims are procedurally barred.

         I. BACKGROUND

         A federal grand jury indicted Salgado, on three counts: (1) conspiracy to possess methamphetamine with the intent to distribute in violation of 21 U.S.C. § 841 and § 846; (2) conspiring to launder money in violation of 18 U.S.C. § 1956; and (3) illegal use of a communication facility in violation of 21 U.S.C. § 843. ECF No. 4. Salgado took the matter to trial, which lasted four days. ECF Nos. 66, 68-70. He was represented by attorney Dennis Cameron. ECF No. 33; see also ECF Nos. 66, 68-70.

         At trial, Sparks Police Officer Bryan Orr testified first. Transcript of Jury Trial (“Tr.”) at II. Orr worked as a task force officer with the Drug Enforcement Administration (“DEA”) and served as a case agent on the Salgado investigation. Tr. at 12-15, 21. As a case agent, Orr reviewed the local law enforcement's prior investigation. Tr. at 15. He then ordered a controlled purchase of methamphetamine from the drug-trafficking organization. Tr. at 16-17. After the purchase was complete, Orr applied for pen registers[1] and ping orders[2] for telephone numbers associated with the seller. Tr. at 18-19. He did so in an effort to identify other members of the drug-trafficking organization. Tr. at 18-19. Orr later applied for a state wiretap[3] after “[exhausting] all other means of investigation [techniques].” Tr. at 19-20.

         The wiretap began in January 2013, and was conducted by third-party employees contracted by the DEA. Tr. at 21. The monitoring occurred in Las Vegas, Nevada. Tr. at 21. The monitors were instructed to “only monitor criminal calls.” Tr at 21. They were also instructed to contact a case agent if a pertinent call was intercepted. Tr. at 21.

         In an attempt to monitor only pertinent calls, the monitors listened to intercepted calls for a limited time period. Tr. at 21. If the monitors did not find the call to be pertinent within the limited time period, they stopped listening to the call. Tr. at 21. But the monitors periodically checked the phone line to ensure that criminal activity was not being discussed. Tr. at 23. Orr testified that the minimization techniques were usually explained to the monitors by a government attorney while Orr was present, during which time the monitors review a minimization letter. Tr. at 23-24, 67. Defense counsel objected to the testimony regarding the monitors' training and conduct, but his objection was overruled. Tr. at 23.

         Orr later applied for additional wiretaps for other phone numbers associated with the drug-trafficking organization. Tr. at 57. He testified that the monitors took the same precautions to minimize the intercepted calls. Tr. at 57. Federal wiretaps were eventually obtained for phone numbers being used in California. Tr. at 58, 60. The investigation resulted in an estimated 5, 000 to 6, 000 intercepted calls. Tr. at 89. Orr also testified that the calls consisted of conversations relating to the drug-trafficking operation. Tr. at 31-37, 405-409, 415-423, 425-428, 455-457.

         In addition to the above investigative steps, Orr conducted in-person surveillance of Salgado when Salgado was in Reno. Tr. at 38-45. The content of the intercepted calls, the ping orders, and the in-person surveillance led Orr to believe that Salgado lived in California but traveled to Reno for purposes related to the drug-trafficking operation.[4] Tr. at 31-56. Orr testified that he associated Salgado with a phone number subject to the federal wiretap by using ping orders. Tr. at 59. He also linked Salgado to the cars used in the drug-trafficking organization by way of GPS data, surveillance, and registration searches. Tr. at 408-410.

         On cross-examination, defense counsel attempted to discredit Orr and undermine Orr's investigation in multiple ways. ECF No. 62-88, 93-94. He first took issue with an intercepted call, in which the conversation did not suggest criminal activity until ten pages into the transcription of the call (which counsel represented to be four minutes). Tr. at 82-83. In reference to the limited time in which monitors must determine if a call is pertinent, Orr stated that he “could not testify to exactly how monitors minimize” the calls. Tr. at 83. But Orr knew the time limit could be expanded if the monitors knew the speakers were individuals “having drug contact.” Tr. at 83. The speakers on the call were Salgado and a coconspirator. Tr. at 83.

         Counsel also attempted to discredit the investigation by demonstrating that the language used on the intercepted calls could be innocent in nature; the speakers did not mention drugs or drug trafficking. Tr. at 73-84. But Orr explained that his training and the context in which the words were used allowed him to conclude that the speakers were using coded words for the purpose of drug trafficking. Tr. at 73-84, 438-439, 454-455.

         Counsel next faulted Orr for failing to determine the identities of a coconspirators, including one nicknamed Chepe. Tr. at 85, 436-437, 442-443.

         Finally, counsel emphasized that Orr neither witnessed Salgado pass drugs or drug-related money nor heard Salgado explicitly speak about the drug-trafficking operation. Tr. At 87- 88, 435-437.

         After Orr testified, the government called Jose Antonio Rangel-Salgado's cousin. Tr. at 103, 136. Rangel was previously convicted in state court for his involvement in the drug-trafficking operation. Tr. at 157, 228-230. When interviewed by law enforcement after his arrest, Rangel stated that Salgado was involved in the drug-trafficking operation as a leader. Tr. at 143- 144, 148-149, 169-170, 174-175, 179. Rangel later recanted his statement at trial, testifying that he implicated Salgado based on his belief that Salgado had implicated him first. Tr. at 143-144, 148-150, 152-154, 156-158. But, also at trial, Rangel confirmed that he recognized Salgado's voice on the intercepted calls played for him during his post-arrest interviews. Tr. at 180-181, 245. Defense counsel attempted to give Rangel's trial testimony more effect, emphasizing that Rangel was under oath at trial but was not under oath when he gave his previous statements to law enforcement. Tr. at 223-226.

         Detective George Carranza from the Reno Police Department testified next. Tr. at 183. During the Salgado investigation, Carranza worked as a case agent and was often assigned to the wire room because he was fluent in Spanish. Tr. at 185. Carranza listened to the pertinent calls and then shared the pertinent information with other officers that were working on the investigation. Tr. at 185-186.

         Carranza also helped obtain the voice exemplar from Salgado, which he testified to be a true and accurate recording of Salgado's voice. Tr. at 187-188. He then identified Salgado's voice in the wiretapped calls by comparing the speakers' voices to the voice exemplar. Tr. at 190-193. He specifically identified Salgado as the speaker on a wiretapped call that was discussing the transfer of money. Tr. at 195-197.

         As part of his duties as a case agent, Carranza also assisted with in-person surveillance and interviews. Tr. at 193-195, 198-200. He testified that he used the GPS information from the ping orders to assist with the in-person surveillance. Tr. at 193-194. The information led him to a location at which Salgado was observed. Tr. at 194 Carranza also conducted the post-arrest interview of Rangel and authored the corresponding report detailing Rangel's initial statements to law enforcement. Tr. at 199-200. During the post-arrest interview, Rangel implicated Salgado (and other individuals) during the post-arrest interview and described Salgado as a “boss figure” within the drug-trafficking organization. Tr. at 201-205, 243. Carranza also testified that Rangel did not recant his statements regarding Salgado despite having multiple opportunities to do so prior to trial.[5] Tr. at 202-215, 243.

         With Carranza on the stand, defense counsel attempted to challenge the investigation again. Tr. at 221-242, 246-247. He emphasized that Carranza obtained the prior statements from Rangel while Rangel was not under oath. Tr. at 225. He underscored Carranza's lack of training in voice identification and the lack of technology used to compare the voice exemplar to the wiretapped conversations. Tr. at 233-235. He also highlighted pieces of information on which the case agents were mistaken during the course of the investigation, e.g. the identity of a coconspirator by the nickname Pariente, as well as pieces of information that the case agents never resolved, e.g. the identity of a coconspirator by the nickname Chepe. Tr. at 235-241.

         Hamilton Ruiz testified after Carranza. Tr. at 248. Ruiz worked for the Joint Language Training Center, which translates and transcribes materials for federal, state, and local entities. Tr. at 248-249. Ruiz worked as a linguist on the Salgado investigation, translating and transcribing the wiretapped calls. Tr. at 249, 252. He also listened to the voice exemplar obtained from Salgado and identified Salgado as a speaker on the wiretapped calls by comparing the voice exemplar to the speakers' voices. Tr. at 255-256. Defense counsel objected to the admittance of the transcripts translated by the Joint Language Training Center, ultimately arguing that the label “Chepe” was inappropriate. Tr. at 255, 263. His objection was overruled. Tr. at 263.

         The government then called Blaine Beard. Tr. at 264. Beard, an employee of the Washoe County Sheriff's Office, worked as a task force officer for the DEA during the Salgado investigation. Tr. at 265-266. Beard described the ping orders and the in-person surveillance previously discussed by Orr. Tr. at 269-271. Beard explained that the DEA identified Salgado as a participant in the drug-trafficking operation through the ping orders and the in-person surveillances. Tr. at 272-273. The identification of Salgado and his telephone number helped Beard to apply for the federal wiretap on the first out-of-state phone number. 274-275, 277. Beard then used toll records[6] to identify the sixteen telephone numbers used by the drug-trafficking organization, two of which were linked to Salgado. Tr. at 267-268, 278. He later explained that the wiretaps helped confirm Salgado's participation in the drug-trafficking operation. Tr. at 290-299.

         Like Orr, Beard also testified about the minimization techniques used during the wiretapping process. Tr. at 287-289. He explained that the Assistant United States Attorney meets with each individual that monitors wiretapped calls or communication to review minimization techniques. Tr. at 287. He then explained that the most important pertinent calls, but not all of the pertinent calls, are given to the Joint Language Training Center for transcription and translation services. Tr. at 289. According to Beard, the in-person surveillance, the wiretapped calls, and the nature of the eight-month investigation helped the case agents identify which calls involved drug-related conversations and which calls were the most pertinent to Salgado's case. Tr. at 307-319.

         Beard also testified that the conspirators used code words when discussing the drug-trafficking organization. Tr. at 320-321. And Beard eventually executed the search warrant executed at Rangel's residence in Reno, which resulted in the discovery of methamphetamine. Tr. at 459-465. He also initiated Salgado's arrest by contacting and working with law enforcement in California. Tr. at 465-470.

         On cross-examination, defense counsel attacked the investigation again. Tr. at 301-310, 321-322, 324-326. He clarified that Beard did not see Salgado handle drugs or hear Salgado discuss the drug-trafficking operation during the in-person surveillance. Tr. at 301-302, 478. He also highlighted areas in the investigation in which Beard failed to personally pursue. Tr. At 303- 310, 321-323, 476-477.

         Ibelise Polson, a Spanish-to-English translator and monitor for Metlang, testified next. Tr. at 327-328. As a monitor, Polson created synopses of the wiretapped calls in the Salgado investigation. Tr. at 327, 329-331. Like Ruiz, Polson used the voice exemplar obtained from Salgado and compared it to the wiretapped calls. Tr. at 331-332. She also identified Salgado as a speaker on the calls. Tr. at 332.

         Polson explained that the monitors generated synopses of pertinent calls. Tr. at 336-352. She further explained that code words were used, which were often identified by their out-of-place nature in the context of the conversations. Tr. at 342, 357-359, 368-372.

         After describing the synopses generated by her and her coworkers, Polson described the minimization techniques used by the monitors. Tr. at 389-401. She testified that the monitors received instruction on minimization techniques, which prohibited certain conversations from being monitored, e.g. a call with a lawyer. Tr. at 399-400. The monitors also received a copy of the affidavit that supported the wiretap application, which Polson reviewed. Tr. at 401, 403. Polson then explained that the case agents share basic information they know about the “targets, ” including the target's location and the target's phone number. Tr. at 390, 400-401. The case agents also share specific wording to listen ...


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