United States v. Concepcion

08-3785-cr
United States v. Concepcion

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 --------

4 August Term, 2008

5 (Argued: June 3, 2009; Decided: August 31, 2009)

6 Docket No. 08-3785-cr

7 -----------------------------------------------------------X
8 United States of America,
9
10 Appellant,
11
12 - v. -
13
14 Alexander Concepcion, also known as Alex Concepcion
15
16 Defendant-Appellee.
17 -----------------------------------------------------------X
18 Before: McLAUGHLIN, CALABRESI, and SACK, Circuit Judges.

19 Appeal from an order of the United States District Court for

20 the Southern District of New York (Scheindlin, J.) suppressing

21 evidence obtained pursuant to a wiretap authorized under 18

22 U.S.C. § 2518. We hold that the Government’s affidavit in

23 support of its application for the wiretap set forth facts

24 “minimally adequate” to support the finding that a wiretap was

25 necessary to the Government’s investigation.

26 REVERSED AND REMANDED.

27 WILLIAM J. HARRINGTON, Assistant
28 United States Attorney, for Lev L.
29 Dassin, Acting United States
30 Attorney for the Southern District
31 of New York (John T. Zach, Jonathan
32 S. Kolodner, on the brief), for
33 Appellant.
1 DARRELL B. FIELDS, Federal
2 Defenders of New York, for
3 Defendant-Appellee.
4
5 McLAUGHLIN, Circuit Judge:

6 The United States appeals an order by the United States

7 District Court for the Southern District of New York (Scheindlin,

8 J.) suppressing evidence obtained pursuant to a wiretap. The

9 wiretap had been authorized under 18 U.S.C. § 2518 by a different

10 district judge in the Southern District of New York (Marrero,

11 J.). In holding that the evidence should be suppressed, Judge

12 Scheindlin found insufficient the same representations that Judge

13 Marrero had accepted: that “normal investigative procedures ha[d]

14 been tried and ha[d] failed or reasonably appear[ed] to be

15 unlikely to succeed if tried or to be too dangerous.” 18 U.S.C.

16 § 2518(3)(c).

17 The Government argues that its affidavit in support of its

18 wiretap application established that a wiretap was necessary to

19 its investigation. While the Government’s affidavit was skimpy

20 in details as to whether other investigative techniques were

21 likely to succeed, we conclude, nonetheless, it did set forth

22 facts “minimally adequate” to support Judge Marrero’s initial

23 determination. Accordingly, we reverse and remand.

2
1 BACKGROUND

2 In 2007, an incarcerated confidential informant ("CI")

3 informed the Government that his former cellmate, Alexander

4 Concepcion, planned to assist foreign terrorists in attacking the

5 United States. Based on the CI's allegations, the FBI's Joint

6 Terrorism Task Force applied to the District Court for

7 authorization to wiretap Concepcion's cell phone under 18 U.S.C.

8 § 2518. The Government was required to provide to the court “a

9 full and complete statement as to whether or not other

10 investigative procedures ha[d] been tried and failed or why they

11 reasonably appear[ed] to be unlikely to succeed if tried or to be

12 too dangerous.” 18 U.S.C. § 2518(1)(c).

13 The district court granted the application on June 20, 2007,

14 with the wiretap to expire 30 days later. The FBI found no

15 evidence of terrorism, but the wiretap did lead the FBI to

16 believe that Concepcion was involved in drugs and weapons

17 trafficking.

18 On July 20, 2007, the Government submitted a second

19 application to the district court (Marrero, J.) that focused just

20 on Concepcion’s alleged drugs and weapons trafficking. Agent

21 Eric Paholsky of the FBI's Gangs, Criminal Enterprises, and Drugs

22 Group submitted an affidavit detailing how several investigative

23 techniques either had failed or were likely to fail. Paholsky

24 first explained that the Government could not use its original CI

25 because he was in prison, and Concepcion, an experienced

3
1 trafficker, would be unlikely to deal with a prisoner under

2 constant surveillance. The Affidavit also recounted how the FBI,

3 in its efforts to investigate the terrorism allegations, had

4 sought to introduce an undercover officer to Concepcion through

5 the CI, but Concepcion would not engage with the officer. Based

6 on that experience, Paholsky asserted that it would be impossible

7 to introduce yet another agent to Concepcion with the aid of the

8 CI. Because the Government was unable to identify other

9 associates of Concepcion, the Government could not investigate

10 his drug activities through the use of informants.

11 The Paholsky Affidavit next discussed the Government’s

12 “limited surveillance” of Concepcion, explaining that “because

13 none of the TARGET SUBJECTS except for . . . CONCEPCION have been

14 definitively identified, surveillance is of limited utility at

15 this time.” The Affidavit continued,

16 [S]ince the June 20th Order was issued, agents have
17 attempted to conduct physical surveillance of
18 CONCEPCION on numerous occasions. They have seen
19 CONCEPCION repeatedly change cars over this time period
20 . . . [and] seen him drive in an erratic manner.
21 These things have made surveillance difficult. In
22 addition, based on my training, I know that narcotics
23 and weapons traffickers are extremely surveillance
24 conscious.

25 Finally, the Affidavit evaluated a variety of other

26 traditional investigative techniques: telephone records and pen

27 registries would be ineffective because they would not reveal the

28 actual content of conversations or the identities of speakers;

29 interviews or grand jury subpoenas would be ineffective given

4
1 that witnesses who could provide relevant evidence had not been

2 identified; and search warrants were not appropriate because the

3 locations where Concepcion and his cohorts stored documents,

4 weapons, or narcotics had yet to be identified.

5 Based on these representations, Judge Marrero authorized the

6 second wiretap application. In the following month, the

7 Government used the wiretap to record conversations that,

8 according to the Government, indicated Concepcion was indeed

9 involved in a drug conspiracy.

10 In November 2007, Concepcion was arrested and charged in the

11 Southern District of New York with 1 count of conspiracy to

12 possess with intent to distribute over 50 grams of crack cocaine.

13 The case was assigned to Judge Scheindlin. Concepcion moved to

14 suppress the recordings of his conversations intercepted pursuant

15 to the second wiretap authorization.

16 Concluding that the Government had failed to establish that

17 other investigative techniques had failed or were likely to fail,

18 Judge Scheindlin granted Concepcion's motion. In her decision,

19 Judge Scheindlin discounted many of the Paholsky Affidavit’s

20 assertions, finding that "[t]he Government has shown that it has

21 done little, other than the wiretap, in its investigation of

22 Concepcion's drug-trafficking activities."

23 As to the Government's attempts to use its CI to introduce

24 an undercover agent, the court noted that the Government made no

25 attempt to introduce an undercover officer "for the purpose of

5
1 buying drugs from, or selling drugs to, Concepcion."

2 Judge Scheindlin also discounted the Paholsky Affidavit's

3 discussion of surveillance, finding that based on her experience

4 in "numerous drug cases," techniques such as photographing

5 Concepcion with his cohorts and trying to match those photographs

6 to FBI databases were "underutilized."

7 Judge Scheindlin thus concluded that "the Government simply

8 bypassed other more conventional techniques in favor of an

9 already existing wiretap," which was an "impermissible shortcut."

10 The Government now appeals.

11 DISCUSSION

12 We have jurisdiction to review a district judge’s decision

13 to suppress evidence, 18 U.S.C. § 3731, and we grant considerable

14 deference to the district court’s decision whether to allow a

15 wiretap, ensuring only that “the facts set forth in the

16 application were minimally adequate to support the determination

17 that was made," United States v. Miller, 116 F.3d 641, 663 (2d

18 Cir. 1997) (internal quotation marks omitted).

19 Here, this deference standard is complicated by the fact

20 that the district judge deciding the motion to suppress (Judge

21 Scheindlin) essentially reversed the district judge who initially

22 authorized the wiretap (Judge Marrero), leaving us with the

23 Solomonic question: to which district judge do we owe this

24 deference? However, we need not decide this issue because the

25 parties agreed during oral argument that the decision we must

6
1 make is whether Judge Marrero abused his discretion in approving

2 the Government’s application. Thus, we focus on whether the

3 facts set forth by the Government were “minimally adequate” to

4 support Judge Marrero’s decision.1

5 We turn to the substantive requirements of a wiretap

6 application. In Title III of the Omnibus Crime Control and Safe

7 Streets Act of 1968 ("Title III"), 18 U.S.C. § 2510 et seq.,

8 Congress struck a balance between “the needs of law enforcement

9 officials [and] the privacy rights of the individual.” See

10 Miller, 116 F.3d at 663. While Title III allows for wiretaps in

11 limited circumstances, law enforcement must apply for a court

12 order before conducting such surveillance, 18 U.S.C. § 2518, and

13 set forth "a full and complete statement as to whether or not

14 other investigative procedures have been tried and failed or why

15 they reasonably appear to be unlikely to succeed if tried or to

16 be too dangerous," id. § 2518(1)(c). The district court must

17 ensure that this standard has been met, id. § 2518(3)(c), so that

18 "wiretapping is not resorted to in situations where traditional

19 investigative techniques would suffice to expose the crime,"

1
We note that this concession finds support in our precedent.
In United States v. Wagner, 989 F.2d 69 (2d Cir. 1993), we held,
with respect to whether an affidavit for a wiretap had
established probable cause, “The reviewing court’s determination
should be limited to whether the issuing judicial officer had a
substantial basis for the finding of probable cause.” Id. at 72.
We went on to reverse the district court’s suppression of
evidence because it had not accorded sufficient deference to the
initial decision to authorize a wiretap, on which the Government
had relied. Id. at 74.

7
1 United States v. Kahn, 415 U.S. 143, 153 n.12 (1974).

2 We have acknowledged that “it would be in some sense more

3 efficient to wiretap whenever a telephone was used to facilitate

4 the commission of a crime. But the statutory requirement . . .

5 reflects a congressional judgment that the cost of such

6 efficiency in terms of privacy interests is too high.” United

7 States v. Lilla, 699 F.2d 99, 105 n.7 (2d Cir. 1983). In other

8 words, the question is not whether a wiretap provides the

9 simplest, most efficient means of conducting an investigation;

10 telephonic surveillance may only be used when it is necessary to

11 assist in law enforcement. With these concerns in mind, we have

12 emphasized that "generalized and conclusory statements that other

13 investigative procedures would prove unsuccessful" will not

14 satisfy Title III. Id. at 104.

15 To be sure, the Government is not required to exhaust all

16 conceivable investigative techniques before resorting to

17 electronic surveillance. “[T]he statute only requires that the

18 agents inform the authorizing judicial officer of the nature and

19 progress of the investigation and of the difficulties inherent in

20 the use of normal law enforcement methods.” United States v.

21 Diaz, 176 F.3d 52, 111 (2d Cir. 1999) (alteration and internal

22 quotation marks omitted). “Merely because a normal investigative

23 technique is theoretically possible, it does not follow that it

24 is likely. What the provision envisions is that the showing be

25 tested in a practical and commonsense fashion.” S. Rep. No. 90-

8
1 1097 (1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2190

2 (citation omitted).

3 Applying this commonsense approach, we have approved of

4 wiretaps in complex and sprawling criminal cases involving large

5 conspiracies, see, e.g., United States v. Torres, 901 F.2d 205,

6 232 (2d Cir. 1990) (“[T]he affidavits here convincingly

7 established that the Torres Organization was a large scale

8 operation which could not be adequately surveilled by traditional

9 investigative methods.”), as well as in cases with peculiar

10 circumstances that made traditional investigative techniques

11 difficult, see, e.g., United States v. Ruggiero, 726 F.2d 913,

12 924 (2d Cir. 1984), abrogated on other grounds by Salinas v.

13 United States, 522 U.S. 52 (1997) (noting that the criminal

14 enterprises under investigation “were in a homogenous

15 neighborhood in Brooklyn where normal surveillance was risky”).

16 Turning to the facts in this case, we begin by emphasizing

17 the unusual origin of the investigation into Concepcion’s drug

18 activities. The CI provided no information about drug

19 trafficking, and appears to have had no information to provide.

20 Specifically, the Government could not obtain from the CI the

21 names of any of Concepcion’s drug co-conspirators, the details as

22 to Concepcion’s drug-trafficking methods, or the locations where

23 the drugs were stored or exchanged. In sum, the CI provided a

24 lead to one investigation of terrorism; that investigation,

25 fruitless in its own right, led to an unrelated investigation of

9
1 drug trafficking. Having stumbled across the drug case, the

2 Government had but two limited avenues of investigation other

3 than the wiretap—continue to use the CI or attempt physical

4 surveillance of Concepcion.2

5 Judge Scheindlin, who suppressed the wiretap evidence,

6 believed that these leads could have been better leveraged before

7 resorting to a wiretap. While an exceptionally close case, we

8 disagree with her conclusion that the wiretap application was

9 insufficient to support Judge Marrero’s wiretap authorization.

10 With respect to the CI, the Paholsky Affidavit aptly

11 demonstrated both how the Government had “tried and failed” to

12 use the CI to infiltrate Concepcion’s operation, and why further

13 such attempts “reasonably appear[ed] to be unlikely to succeed.”

14 See 18 U.S.C. § 2518(1)(c). First, the Affidavit explained that

15 the CI attempted to introduce an undercover agent to Concepcion,

16 but Concepcion refused to engage with the agent. Second, further

17 attempts to use the CI reasonably appeared unlikely to succeed

18 because Concepcion would not work with the CI, who was still

19 incarcerated. Further, we are not persuaded that it makes any

20 difference that these initial attempts to use the CI were with

21 respect to the terrorism investigation. Regardless of the timing

22 or scope of those efforts, the Paholsky Affidavit established

2
It is not disputed that the other techniques described in the
Paholsky Affidavit—convening a grand jury, seeking search
warrants, or using a pen registry–would have been either
unhelpful or premature.

10
1 that the CI’s usefulness had been exhausted.

2 Accordingly, the Government was left with only traditional

3 surveillance as a means to investigate Concepcion. And it is

4 with respect to this technique that the Paholsky Affidavit was

5 less than thorough. This was not the type of large criminal drug

6 conspiracy that often requires the aid of a wiretap. Cf. Torres,

7 901 F.2d at 232. Many of the Affidavit’s statements concerning

8 surveillance, such as the statement that "narcotics and weapons

9 traffickers are extremely surveillance conscious," apply to all

10 drug cases. See Lilla, 699 F.2d at 104 (finding the Government’s

11 affidavit insufficient because it failed to explain how "this

12 narcotics case presented problems different from any other

13 small-time narcotics case"). Additionally, instead of detailing

14 the Government’s specific attempts at surveillance, the Affidavit

15 merely claimed that “agents . . . attempted to conduct physical

16 surveillance of CONCEPCION on numerous occasions.”

17 These general explanations leave a reviewing court to wonder

18 how many times the Government attempted surveillance, at what

19 time, where exactly, and why the Government could not

20 “definitively identif[y]” any of Concepcion’s associates. The

21 Paholsky Affidavit seems to suggest that simply because other

22 unknown individuals were involved in Concepcion’s activities, a

23 wiretap was necessary. But we have been clear that part of the

24 reason law enforcement performs physical surveillance is to

25 identify co-conspirators. See Lilla, 699 F.2d at 105 n.6 (“The

11
1 individuals involved in this conspiracy . . . would obviously

2 remain ‘unknown’ until some sort of investigative efforts were

3 attempted.”). Once co-conspirators had been “definitively

4 identified,” the Government could have sought an informant or

5 introduced a different undercover agent.

6 Still, while the Affidavit was not thorough in this respect,

7 we think it was at least “minimally adequate to support” Judge

8 Marrero’s initial decision to grant the wiretap. See Miller, 116

9 F.3d at 663 (internal quotations marks omitted). The Affidavit

10 was far more detailed than the representations made by law

11 enforcement in Lilla, where the supporting affidavit indicated

12 that traditional investigative techniques not only appeared

13 likely to be effective, but were in fact effective, and thus we

14 ordered the evidence suppressed. See Lilla, 699 F.2d at 100-01,

15 104. Unlike Lilla, the Government here set forth just enough

16 facts to indicate that other techniques were not working, and

17 because of the unusual origin of the case, it could not find new

18 leads. Thus, the Government was faced with the decision either

19 to continue the wiretap or forego its investigation of

20 Concepcion.

21 We should add, however, that in coming to this conclusion,

22 we do not endorse the effort put forth by the Government in its

23 affidavit. A first read leaves the impression that the

24 Government chose to reapply for the wiretap not because it was

25 necessary, but because it was easier than beginning a new

12
1 investigation; since the wiretap was up and running and providing

2 valuable information, better to let it run its course than to

3 begin a new investigation into a low-level drug trafficker.

4 District courts must remain vigilant in ensuring that this kind

5 of reasoning, based more on efficiency and simplicity than

6 necessity, will not justify a wiretap. For the Government to

7 avoid future suppression orders, it would do well to spell out in

8 more detail its investigative efforts. A wiretap is not a device

9 to be turned to as an initial matter, but only where the

10 circumstances demonstrate that it is necessary.

11 CONCLUSION

12 For the foregoing reasons, we REVERSE the suppression order

13 and REMAND to the district court for further proceedings

14 consistent with this opinion.

13