US v. Cartagena

Filing 920100129

Opinion

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var WPFootnote1 = 'Congress enacted Title III of the Omnibus Crime Control and Safe\
Streets Act of 1968 with the stated purpose of "(1) protecting the\
privacy of wire and oral communications, and (2) delineating on a\
uniform basis the circumstances and conditions under which the\
interception of wire and oral communications may be authorized." \
Gelbard v. United States, 408 U.S. 41, 48 (1972)(quoting S. Rep.\
No. 90-1097, at 66 (1968), as reprinted in 1968 U.S.C.C.A.N.\
2153)(internal quotation marks omitted). Title III makes the use of\
wiretapping or electronic surveillance by law enforcement "an\
extraordinary investigative technique whose use \'is to be\
distinctly the exception - not the rule.\'" United States v. López,\
300 F.3d 46, 51 (1st Cir. 2002)(quoting United States v. Hoffman,\
832 F.2d 1299, 1306 (1st Cir. 1987)). Thus, a law enforcement\
official seeking to use electronic surveillance must meet the\
specific requirements of Title III\'s comprehensive regulatory\
scheme.\
'

var WPFootnote2 = 'Cartagena additionally argues, regarding both the state and\
federal wiretaps, that the government intentionally omitted an\
unconstitutional search of López\'s phone from the affidavits. \
Because we do not believe the information obtained from the search\
was used in support of the wiretaps, Cartagena\'s allegation is\
irrelevant to his necessity claim.\
'

var WPFootnote3 = 'Specifically, the affidavit provided that traditional law\
enforcement investigative techniques had failed to identify the\
smuggling locations to which the narcotics were transported, the\
exact method by which the conspirators imported the narcotics into\
the United States, the persons to whom Cartagena supplied the\
narcotics, the method by which the organization laundered its drug\
proceeds, or the full nature and scope of Cartagena\'s drug\
trafficking activities.\
'

var WPFootnote4 = 'Although we agree with the district court\'s decision to suppress\
the Title III wiretap, we briefly address its discussion of the\
necessity standard in order to provide clarification. In applying\
Title\'s III\'s necessity requirement, the district court imposed two\
requirements that we have never demanded to establish necessity. \
First, the district court considered whether the informant in this\
case "was [] in a position to provide all the information that\
objectively reasonable investigators would want or need for a\
successful prosecution of the several people involved in the\
distribution network." López, 2007 WL 4556904, at *4. Nowhere\
does § 2518(1)(c) or this Court\'s jurisprudence require that we\
assess the wants or needs of the objectively reasonable\
investigator. Second, the district court considered the\
evidentiary reliability of informant-provided information. Id. at\
*5. Again, the evidentiary reliability of an informant\'s testimony\
is not part of the necessity requirement under § 2518(1)(c). In\
evaluating necessity, a court need only consider whether other\
investigatory procedures have been tried and failed or if they\
would be unlikely to succeed if pursued.\
'

var WPFootnote5 = 'Cartagena moved for discovery pursuant to Rule 116.2(A) of the\
Local Rules of the District of Massachusetts.\
'

var WPFootnote6 = 'A "mere tipster" is one who "neither participated in nor\
witnessed the events that inculpated the defendant and led to his\
arrest," or "who does little more than put a flea in an officer\'s\
ear." Robinson, 144 F.3d at 106-07; see also United States v.\
Martínez, 922 F.2d 914, 921 (1st Cir. 1991)("[W]here the informant\
is a mere tipster, a conduit rather than a principal or active\
participant in the enterprise, disclosure is not required, even in\
those instances where the informant was present during the\
commission of the offense.").\
'

var WPFootnote7 = 'Based on our review of the record, it does not appear that\
Cartagena sought in camera inspection of these communications at\
the district court level, and Cartagena does not allege doing so.\
'

var WPFootnote8 = 'The district court cases on which Cartagena relies to support\
his speculative proposition do not assist him. For example, in\
United States v. Henderson, the requested information "was material\
to the merits of the Motion to Suppress," not possibly material. \
265 F. Supp. 2d 115, 116 (D. Mass. 2002)(emphasis added). In\
United States v. Ramos, the defendant made a particularized demand,\
requesting disclosure of an informant\'s name, residential address,\
telephone number, criminal record, and any cases pending against\
him. 210 F. Supp. 2d 1, 2 (D. Mass. 2002). Here, Cartagena has\
requested all of the DEA agents\' handwritten notes, totaling\
hundreds of pages, with no further specifications or\
identifications. Thus, his situation cannot reasonably be compared\
to that of the defendant in either case.\
'

var WPFootnote9 = 'Because Cartagena has provided us with no "indication that the\
materials to which he . . . needs access contain material and\
potentially exculpatory evidence," United States v. Brandon, 17\
F.3d 409, 456 (1st Cir. 1994), there is no Brady claim pursuant to\
Brady v. Maryland, 373 U.S. 83 (1963). Compare United States v.\
Duval, 496 F.3d 64, 75 (1st Cir. 2007)(defendants\' theory that\
additional exculpatory evidence could exist in informant payment\
records, fostered by government\'s pattern of non-disclosure, deemed\
to be a "shot in the dark" insufficient to require in camera\
review), with United States v. Rosario-Peralta, 175 F.3d 48 (1st\
Cir. 1999)(disclosure granted where defendants made clear showing\
that sought evidence existed and would support validity of their\
defense theory).\
'

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