United States v. Gutierrez-Santiman

988 F. Supp. 1410, 1997 U.S. Dist. LEXIS 20586, 1997 WL 790577
CourtDistrict Court, D. Utah
DecidedNovember 14, 1997
DocketNo. 2-97-CR-0058-S
StatusPublished

This text of 988 F. Supp. 1410 (United States v. Gutierrez-Santiman) is published on Counsel Stack Legal Research, covering District Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gutierrez-Santiman, 988 F. Supp. 1410, 1997 U.S. Dist. LEXIS 20586, 1997 WL 790577 (D. Utah 1997).

Opinion

ORDER

SAM, Chief Judge.

Before the court are Oppositions to Magistrate’s Report and Recommendation filed by defendants Sergio Gutierrez-Santiman, Jorge Mesa-Garcia1, and Jose Torres Romero. By these documents, defendants object to a Report and Recommendation signed by the magistrate judge on August 19, 1997. Specifically, all three defendants object to the findings in the Report and Recommendation with respect to the issue of “necessity” in the wiretap order.

The court has considered the matter de novo, concludes the Report and Recommendation is correct in every material respect, and adopts it as the court’s own opinion. Accordingly, the motions to suppress the wiretap evidence are hereby DENIED.

REPORT & RECOMMENDATION

BOYCE, United States Magistrate Judge.

The defendants Sergio Gutierrez-Santi-man, Jorge Mesa Garcia, Miguel Castillo, Jose Torres-Romero, Eduardo Macias, Oscar Gomez, Javier Ortiz, Lorraine Marie Vasquez, and Juanita Vasquez have been indicted on various charges arising from a wide ranging drug conspiracy and continuing criminal enterprise (File Entry # 15).

Sergio Sylvester Gutierrez (Santiman) moved to suppress the evidence obtained by a legally authorized wiretap on telephone number 801-823-9271 subscribed to by Juan Rodriguez and located at 352 West Reed Road, Salt Lake City, Utah.1 A memorandum was submitted in support of the motion (File Entry # 47). The memorandum contains as an attachment the affidavit of Michael A. Christman, Special Agent, Federal Bureau of Investigation whose affidavit was the basis of the wiretap order issued by Chief Judge David K. Winder, United States District Court for Utah.

Subsequent to Gutierrez’ motion, defendant Lorraine Vasquez filed a similar motion to suppress (File Entry # 61) and also submitted a memorandum in support of the motion to suppress (File Entry #62). Jorge Mesa Garcia made a motion to suppress wiretap evidence (File Entry # 65) as did Javier Ortiz (File Entry # 66). Defendants Mesa-Garcia (File Entry #68) and Ortiz (File Entry # 67) both submitted memoranda in support of their motions. Eduardo Macias made a motion to suppress the wiretap evidence (File Entry #69) and submitted a memorandum in support of the motion (File Entry # 70).

The United States submitted a response to all the motions and included another affidavit that was incorporated by reference in the affidavit for the wiretap (File Entry #76). A hearing was held on the motions to suppress.

Defendants Gutierrez, Lorraine Vasquez, Ortiz, Mesa-Garcia, and Macias all challenge the wiretap on the grounds that there was inadequate evidence to show probable cause for the interception order and that the supporting affidavit did not show that other investigative techniques had been “exhausted” as required, they contend, by 18 U.S.C. § 2518(3)(c).

The Affidavit

The affidavit in support of the wiretap order, in this ease (telephone number 801-323-9721) is a sixty-three page affidavit of [1413]*1413FBI S/A Michael A. Christman. It was presented to Chief Judge Winder on January 16, 1997. The affidavit refers to the persons whose communications are sought to be intercepted which included Sergio Sylvester Gutierrez Santiman, (¶2), a defendant and movant in this ease. A detailed description of the persons and some of their criminal record is provided (¶ 8). Several of the investigative subjects had prior criminal convictions for drug offenses or have been arrested or involved with controlled substances. Some of the other persons involved are Enrique Avendano Flores, Luis Fernando Ar-reóle, Xavier Jesus Martinez, Javier Suarez, Teresa S. Velasco, Jorge Hernandez, Gregorio Avendano Flores, Chino LNU, Brenda Elizabeth Miera, Hector Garcia Hernandez, Hector Velasco and Willie Rivera (¶ 6). It is alleged these persons’ conversations would be intercepted from a wiretap at 801-323-9721. None of the other defendants who have made motions to suppress were named as persons whose communications were to be intercepted, however, the Government concedes the standing of each moving defendant to challenge the wiretap in this case. The many suspected offenses of the investigation are identified (¶ 3) including conspiracy to distribute and possess controlled substances, and other controlled substances offenses, as well as money laundering and weapons offenses. The affiant had supervised the investigation since its inception in February, 1996.

The affidavit recites that a prior interception order was signed by Judge Winder as to phone number 801-596-7308 (not the number involved in this motion) on December 16, 1996. Enrique Flores was the phone subscriber. The affidavit for that interception is expressly incorporated by reference as Exhibit ‘A’ to the affidavit of concern in this case (¶’s 11,12). Although the prior wiretap order is not directly concerned with the intercept for number 801-323-9721, it is pertinent by showing the scope of the alleged illegal conduct, the extent of the investigation pertinent to this matter and is directly of importance to the issue of whether the instant order is supported by an adequate showing of probable cause and necessity for the wiretap. The Exhibit ‘A’ affidavit is eighty-four pages and the affidavit and order were executed and issued on December 16, 1996.

The Exhibit ‘A’ affidavit names some of the same persons as objects of the interception as are involved in the affidavit in this matter and the offenses under investigation were drug offenses the same as those similarly identified in this ease. The criminal history of Enrique Avendano Flores and the other subjects was set forth (¶ 10). An extensive drug conspiracy is involved.

The affidavit of December 16, 1996 describes the use of informants to obtain information about drug trafficking with Flores and one Arreóle. Five confidential informant (Cl) sources were utilized. The informants indicated Flores was involved in distributing large quantities of marijuana, cocaine, and methamphetaniine in the Salt Lake area over the last year and a half. The operations and sources of information are set out. Surveillance verified the Cl information (pp. 12-17). The, information provided described the transportation of drugs from Los Angeles to Salt Lake City including times, quantity and manner. It also described various and ongoing purchase transactions and undercover buy operations for large amounts of drugs and money (p. 25). Firearms, including machine guns, were involved. The use of phones and pagers to effect the operations is detailed as well. Pen registers were employed (¶ 50, p. 33; ¶ 109, p. 61). The investigative undercover operations and activities were from February, 1996 to December 12, 1996 and involved Flores and Arreóle and several others also named in paragraphs of the January 16, 1,997 affidavit, thus showing the interrelationship of the illegal activities between the two affidavits. The undercover buys involved informants and undercover FBI agents. A report of a drug interdiction of cocaine by one of the persons involved is detailed (pp. 61-62). An analysis of the pen register and trap and trace evidence on the involved phones was provided (pp. 63-68).

In the- December 16, 1996 affidavit, the affiant specified the need for the wiretap (pp. 68-81).

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Bluebook (online)
988 F. Supp. 1410, 1997 U.S. Dist. LEXIS 20586, 1997 WL 790577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gutierrez-santiman-utd-1997.