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United States v. Palafox

United States District Court, D. Nevada

May 10, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PASTOR FAUSTO PALAFOX, et al., Defendants.

          ORDER

          Gloria M. Navarro, Chief United States District Judge.

         Pending before the Court is the Sealed Motion to Suppress Evidence Obtained Through Unlawful Wiretaps, [1] (ECF Nos. 1198-1203), filed by Defendant Pastor Fausto Palafox (“Palafox”). The Government filed an errata Response, (ECF No. 1342), and Palafox filed a Reply, (ECF No. 1361).[2] The Court held hearings on March 5, 2019, (ECF No. 1537), and on April 4, 2019, (ECF No. 1560).[3]

         Also pending before the Court is the Government's Motion for Leave to File Excess Pages, (ECF No. 1338), and Palafox's Unopposed Motion for Leave to File Excess Pages, (ECF No. 1360).[4]

         Also pending before the Court is Defendant Ernesto Manuel Gonzalez's (“Gonzalez”) Motion for Leave to File or Join a Wiretap Suppression Motion for Lack of Necessity Under 18 U.S.C. § 2518, (ECF No. 987). The Government did not file a response. Defendants Albert Benjamin Perez (“Perez”), Robert Alan Coleman (“Coleman”), Garcia, Johnny Russell Neddenriep (“Neddenriep”), Paul Jeffrey Voll (“Voll”), John Chrispin Juarez (“Juarez”), and Bert Wayne Davisson (“Davisson”) filed Motions for Joinder, (ECF Nos. 994, 1018, 1023, 1029, 1079, 1087, 1111).

         I. BACKGROUND

         This case arises from a long-term investigation into the alleged criminal conspiracy of Vagos Motorcycle Club (“Vagos”), an alleged motorcycle gang. (Superseding Indictment, ECF No. 13). This investigation resulted in a Superseding Indictment returned against Palafox and 22 others. (Id.). As a part of the investigation, the Government applied for and received several orders authorizing the interception of many of the defendants' phone lines. (See generally Exs. A-Q, ECF Nos. 1198-1202). The first wiretap order, obtained as an emergency wiretap application under California state law, intercepted the phone line of Mario Enrique Ayala (“Ayala”), an alleged member of the Vagos. (See Ex. B at 00042-51, ECF Nos. 1198-1, 1198-2). Thereafter, the Government sought and received two additional California state law wiretap authorizations. (See Exs. C, D, ECF Nos. 1198-1, 1198-2). Applications for these wiretaps are supported by an affidavit executed by Sergeant Erick Bennett (“Sgt. Bennett”), a police officer with the San Bernardino Police Department Narcotics Unit. (Id.). In August 2010, the Government applied for the first of nine federal wiretap authorizations. (See Ex. E, ECF Nos. 1198-3, 1198-4, 1198-5). The federal applications include affidavits executed by Special Agent Matthew Neal (“Special Agent Neal”) of the Department of Homeland Security. (Id.). The last wiretap authorization was secured in April 2011. (See Ex. M, ECF No. 1202).

         A. Investigative Background Relating to Wiretap Applications [5]

         In March 2010, the Drug Enforcement Agency (DEA) began its investigation of Ayala. (Errata Resp. (“Resp.”) 6:21-7:5, ECF No. 1342). Special Agent Andrew Spillman (“Special Agent Spillman”) of the California Department of Justice assisted the DEA Riverside District Office with a narcotics investigation where a confidential reliable informant (“CRI”) posed as a narcotics supplier of marijuana and cocaine. (Ex. A at 00008-10, ECF No. 1198-1). The CRI sold 900 pounds of marijuana to Jesus Tellez-Hernandez (“Tellez-Hernandez”). (Id. at 00010). Law enforcement followed Tellez-Hernandez to an industrial building and procured a search warrant for the location. (Id.). Law enforcement executed the warrant, seized the marijuana, recovered $700, 000, and arrested five suspects, including Tellez-Hernandez, who was later released on bail. (Id.). After his release, Tellez-Hernandez solicited the CRI for 40 kilograms of cocaine in April 2010. (Id.). In connection with the request, Tellez-Hernandez introduced the CRI to Ayala. (Id.). Ayala “identified himself to the CRI as the ‘Sergeant at arms' for the Vagos outlaw motorcycle gang and that he was in fact the person that would be purchasing the cocaine.” (Id.). Ayala contacted the informant on several occasions to discuss the purchase of cocaine and stated that he could provide the CRI with heroin. (Id.). Ayala also indicated that he would kill anyone the CRI wanted in order to show his loyalty to the CRI. (Id.). Ayala gave the CRI his cellphone number and the two later met and exchanged samples of cocaine and heroin. (Ex. B at 00038-39, ECF No. 1198-1).

         On May 7, 2010, the informant met with Tellez-Hernandez and Ayala. (Id. at 00039). During this meeting Tellez-Hernandez asked the informant and Ayala to assist him in locating Roberto Bautista (“Bautista”), the individual Tellez-Hernandez suspected of being responsible for his March arrest. (Id.). Tellez-Hernandez requested that the CRI and Ayala help steal money and drugs from Bautista, and kill him. (Id.). The CRI declined to assist Tellez-Hernandez, but heard Ayala communicate his willingness to help rob and kill Bautista. (Id. at 00039-40). Law enforcement officials then contacted Bautista and warned him of the murder plot. (Id. at 00040).

         1. May 2010 Wiretap Application and Order

         Special Agent Spillman sought the first wiretap, an emergency request, on May 10, 2010. (Id. at 00042, 00052). The Superior Court of California, County of San Bernardino (“San Bernardino Court”) granted the request the same day. (Id.). An application was then submitted by the Assistant District Attorney for the County of San Bernardino, two days later, seeking to extend the wiretap for an additional 30 days. (See Id. at 00011). The target telephone was the cellphone primarily used by Ayala (“TT1”), and the target subjects were Ayala and Tellez-Hernandez. (Id. at 00016-17). The objectives of the investigation were, inter alia, to obtain evidence against “the participants and/or conspirators in the Conspiracy to Commit Murder and the Solicitation to Commit Murder of Roberto Bautista.” (Id. at 00020). The San Bernardino Court granted the issuance of the wiretap. (Id. at 00035).

         2. June 2010 Wiretap Application and Order

         On June 9, 2010, Sgt. Bennett applied to continue the wiretap on Ayala's phone. (Ex. C at 00062, 00065-66). The only target telephone was the cellphone primarily used by Ayala. (Id. at 00068). The application requested to intercept the communications between Ayala and additional co-conspirators, known and unknown. (Id. at 00066). In addition to Ayala, the application identified Tellez-Hernandez, Fred Alfonso Mendoza (“Mendoza”), Charlie, Larry, and Oscar as target subjects. (Id. at 00068-69). The objective of the wiretap included determining the role of the target subjects in the Vagos' criminal activity and their role in the solicitation of Bautista's murder. (Id. at 00073-74). Law enforcement also sought to identify additional Vagos members and the location of any evidence related to the Vagos' alleged crimes. (Id.). In support of his application, Sgt. Bennett summarized many of the intercepted calls from the May 2010 wiretap. (Id. at 00078-93; 00119). Sgt. Bennett stated that these calls reflected, inter alia, narcotics transactions and trafficking, orders to assault an unidentified third party, Vagos business, and a murder committed by a rival gang. (See id.). The San Bernardino Court granted the issuance of the wiretap. (Id. at 00130).

         3. July 2010 Wiretap Application and Order

         On July 9, 2010, Sgt. Bennett applied to continue the interception of calls to and from Ayala's cellphone for an additional 30 days. (Ex. D at 00211, ECF No. 1198-2). Sgt. Bennett identified Ayala, Tellez-Hernandez, Mendoza, Charlie, Larry, and Oscar as target subjects. (Id. at 00148). The objectives of the wiretap were essentially the same as the objectives of the June 2010 wiretap. (Id. at 00153). The San Bernardino Court granted the issuance of the wiretap. (Id. at 00210).

         4. August 2010 Wiretap Application and Order

         On August 27, 2010, the first federal wiretap application was approved by the United States District Court for the Central District of California to intercept phones operated by Ayala, Charles Randall Vaden (“Vaden”) (“TT2”), and Defendant Andrew Eloy Lozano (“Lozano”) (“TT3”). (Ex. E at 00221; 00317-331, ECF Nos. 1198-3, 1198-4). The application was supported by an affidavit from Special Agent Neal, Department Homeland Security. (Id. at 00247). The target subjects included defendants Palafox and Lozano, along with several other non-parties. (Id. at 00247-48). Special Agent Neal stated that probable cause existed to believe that the aforementioned individuals had committed, or were committing, narcotics-related crimes for the benefit of the Vagos. (Id. at 00258-61).

         5. September 2010 Wiretap Application and Order

         An order extending the August 2010 wiretap was approved by the Central District of California on September 28, 2010. (Ex. F at 00332; 00439-53, ECF Nos. 1198-5, 1198-6). This wiretap application sought to intercept calls to and from phones operated by Vaden, Lozano, Robert Laguardia (“TT4”), and Defendant John Siemer (“Siemer”) (“TT5”). (Id. at 00358-59). The following defendants were listed as target subjects: Palafox, Lozano, and Siemer. (Id. at 00364, 00370). The affidavit included information learned from the August 2010 wiretap, and additional updates, including the arrest of Ayala, altercations with rival gangs, and plans to retaliate against a rival gang. (See, e.g., id. at 00376-77).

         Palafox now moves to suppress evidence obtained from the wiretaps and requests a Franks hearing. (Mot. to Suppress (“Mot.”) at i-ii, ECF No. 1198). The Court held hearings as to the instant Motion to Suppress on March 5, 2019, (ECF No. 1537), and on April 4, 2019, (ECF No. 1560).

         II. DISCUSSION

         A. Standing

         Palafox, and the other defendants who filed joinders to Palafox's Motion, assert that they have standing to suppress the evidence derived from the Government's 12 wiretap applications. (Mot. 18:3-19:13, ECF No. 1198); (Min. Order, ECF No. 1476) (granting motions for joinder to Palafox's Motion to Suppress). The Government concedes that some of the defendants have standing, but that their standing correlates to each defendant's status as either the user of the target telephone, an intercepted user, or as a target subject. (Resp. 14:12-16, ECF No. 1342). However, the Government argues that because no defendant was identified as a user of a target telephone, an intercepted user, or a target subject in the May 2010 wiretap, no one has standing to challenge the application. (Id. 15:19-22). Additionally, the Government contends that only Lozano has standing to challenge the June and July 2010 wiretap applications because he was the only defendant that was intercepted pursuant to those wiretaps. (See Id. 15:12, 15:19-22).

         Palafox replies that co-defendant Lozano has joined the Motion to Suppress, and that the Court should issue a ruling on the Motion based upon Lozano's standing.[6] (Reply 3:10-13, ECF No. 1361); (Lozano's Mot. for Joinder, ECF No. 1243).

Standing is governed by 18 U.S.C. § 2518(10)(a), which provides that
Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.

         An aggrieved person is one that was a party to the intercepted wire, “or a person against whom the interception was directed.” 18 U.S.C. § 2510(11). The rule of standing under Section 2518(10)(a) is no broader than that of the Fourth Amendment. See United States v. Taketa, 923 F.2d 665, 676 (9th Cir. 1991) (“The Supreme Court has read the statutory language to extend standing no further than the normal reach of fourth amendment standing.”) (citing Alderman v. United States, 394 U.S. 165, 175-76 (1969)). A defendant may move to suppress wiretap evidence if his privacy was “actually invaded.” United States v. King, 478 F.2d 494, 506 (9th Cir. 1973). An invasion of privacy occurs when the defendant is either a participant in the call or the interception occurred on the defendant's premises. Id. A defendant does not have standing where he is only a subject of the conversation. See generally Light v. United States, 529 F.2d 94 (9th Cir. 1976).

         Here, no defendant was a user of a target telephone, an intercepted user, or a target subject of the May 2010 wiretap, and thus, there is no aggrieved person who may move to suppress its contents. As to the June and July 2010 wiretap applications, Lozano was the only defendant identified as an intercepted user. Thus, only Lozano has standing to challenge the June and July 2010 wiretaps. Given that Lozano has joined the Motion, the Court will address whether said wiretaps must be suppressed.

         Regarding the remaining wiretap authorizations, the Court finds that the following defendants have standing to challenge one or more of the wiretap orders because they were either an intercepted user, user of a target telephone, or target subject-and joined Palafox's Motion to Suppress. (Min. Order, ECF No. 1476); (see Resp. 15:1-19).

August 2010

Palafox, Lozano

September 2010

Palafox, Lozano, Juarez

October 2010

Palafox, Lozano, Campos, Juarez

November 2010

Palafox, Lozano, Campos, Juarez

December 2010

Palafox, Lozano, Campos, Juarez, Gonzalez, Voll

January 2011

Palafox, Lozano, Gonzalez, Juarez

March 2011

Palafox, Lozano, Juarez

April 1, 2011

Palafox, Lozano, Juarez

April 29, 2011

Palafox, Lozano, Campos, Juarez

         B. State and Federal Wiretaps

         1. Legal Standard

         In evaluating the validity of a wiretap issued in state court, the Court applies both federal law and state law. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”) governs the use of electronic surveillance. 18 U.S.C. § 2516(2) governs the validity of state-issued wiretap orders, like those found in the present case. 18 U.S.C. §§ 2515 and 2518 address when wiretap evidence must be suppressed and how and when a defendant may move to suppress such wiretap evidence.

         The federal wiretap statute permits states to authorize the interception of wire communications. See 18 U.S.C. § 2516(2). State laws must meet the minimum standards of Title III. Section 2516(2) states, in pertinent part, that:

The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter . . .

18 U.S.C. § 2516(2).

         Under Section 2515, “if the disclosure of [intercepted communications] would be in violation of this chapter, ” the communications must be suppressed upon a motion properly made under Section 2518(10)(a). See United States v. Giordano, 416 U.S. 505, 508 (1974). Section 2518 provides three bases for suppression, including suppression of the wiretap evidence on the grounds that it was “unlawfully intercepted.” Here, Palafox contends that the communications were unlawfully intercepted pursuant to invalid wiretap orders. (See Mot. 27:1-2).

         Sections 2515, 2516(2), and 2518 do not address what law governs admissibility of evidence obtained under state law procedures; Section 2516(2) requires only that the wiretap order be obtained in conformity with state law. The Ninth Circuit has held that federal law governs the admissibility of wiretap evidence. “Evidence obtained pursuant to a state court wiretap authorization is not subject to suppression in federal court if that evidence was obtained in compliance with federal law.” United States v. Homick, 964 F.2d 899, 903 (9th Cir. 1992) (citing United States v. Chavez-Vernaza, 844 F.2d 1368, 1372 (9th Cir. 1987)). Therefore, although the validity of the wiretap is governed by both federal and state law, it will only be suppressed if it was obtained in violation of federal law. Id.; see also Chavez-Vernaza, 844 F.2d at 1373 (“[W]e have consistently stated that the admissibility of evidence obtained in violation of state law turns on whether a federal right has been infringed, not on the presence or absence of federal involvement at the evidence-gathering stage of an investigation”); United States v. Hall, 543 F.2d 1229, 1235 (9th Cir. 1976) (“[W]iretap evidence obtained in violation of neither the Constitution nor federal law is admissible in federal courts, even though obtained in violation of state law . . . ”). Accordingly, the challenged wiretap applications-both state and federal-are subject to the federal law.

         The authority conferred under Title III for law enforcement agencies to conduct electronic surveillance of suspected criminal activities “is not a blank check.” United States v. Garcia-Villalba, 585 F.3d 1223, 1227 (9th Cir. 2009). The Government must generally satisfy two requirements before a district court will issue a wiretap order-probable cause and necessity. Id.

         (a) ...


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