# United States v. Ailemen

> District Court, N.D. California · October 24, 1997 · 986 F. Supp. 1228

URL: https://www.frixlaw.com/law-library/cases/1459322

## Case

- **Court:** District Court, N.D. California
- **Decided:** October 24, 1997
- **Citations:** 986 F. Supp. 1228; 1997 U.S. Dist. LEXIS 20359; 1997 WL 769381
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Walker
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

986 F.Supp. 1228 (1997)
UNITED STATES of America, Plaintiff,
v.
Pius AILEMEN, et al., Defendants.
No. CR-94-0003-VRW (WDB).
United States District Court, N.D. California.
October 24, 1997.
*1229 Gail Shifman, San Francisco, CA, Karen L. Snell, Clarence & Snell LLP, San Francisco, CA for defendant Pius Ailemen.
Martin R. Sabelli, Federal Public Defender's Office, San Francisco, CA, Paul Delano Wolf, Law Office of Paul Delano Wolf, Oakland, CA, for defendant Ellis Quarshie.
Martin R. Sabelli, Federal Public Defender's Office, San Francisco, CA, Gail Shifman, San Francisco, CA, Susan Raffanti, Law Office of Paul Delano Wolf, Oakland, CA for defendant Sidney Gladney.
*1230 Brian P. Benson, San Francisco, CA, for defendant Victor Onuaguluchi.
Martin R. Sabelli, Federal Public Defender's Office, San Francisco, CA, Lester S. Rosen, Lester S. Rosen Law Offices, San Rafael, CA, Mark D. Eibert, Half Moon Bay, CA, Scott A. Sugarman, Sugarman & Cannon, Oakland, CA for defendant Nathaniel Iheukwu.
Brian H. Getz, Law Offices of Brian Getz, San Francisco, CA, for defendant Joycelyn Diane Lane.
Gail Shifman, San Francisco, CA, Tony Tamburello, Tamburello Hanlon & Waggener, San Francisco, CA, for defendant Kellee Cooper.
Harry L. Hellerstein, Federal Public Defender's Office, San Francisco, CA, J. Frank McCabe, Goorjian & McCabe, San Francisco, CA for defendant Dele Ailemen.
Edward Swanson, Federal Public Defender's Office, San Francisco, CA, Stephen Shaiken, Stephen Shaiken Law Offices, San Francisco, CA for defendant Kingsley Amaechi Ofomata.
Mark J. Rochon, Kohlman, Rochon and Roberts, Washington, DC, for defendant Robert Tinney.
Claire M. Leary, Federal Public Defender's Office, San Francisco, CA, Ronald E. Kliegerman, Kliegerman & Freiss, New York, NY, for defendant Keesha Duncan.
Doron Weinberg, Nina Wilder, Weinberg & Wilder, San Francisco, CA, Karen L. Snell, Clarence & Snell LLP, San Francisco, CA, for defendant Julius E. Asagba.
Gregor D. Guy-Smith, San Francisco, CA, Harriet Ross, San Francisco, CA, Karen L. Snell, Clarence & Snell LLP, San Francisco, CA, for defendant Kenneth Taylor.
Billy Ponds, Law Firm of Billy Ponds, Washington, DC, for defendant Doug Fullard.
Louis S. Katz, San Francisco, CA, for defendant Kali Malou Hidalgo.
Theresa J. Canepa, U.S. Attorney's Office, Drug Enforcement Task Force, San Francisco, CA, for plaintiff U.S.
ORDER.
WALKER, District Judge.
On July 11, 1994, the government obtained a forty-two count superseding indictment against eighteen defendants, charging them for their involvement in a heroin smuggling organization allegedly headed by Pius Ailemen. Much of the evidence that was used to indict the defendants was acquired as a result of a wiretap authorized by a judge of this court on July 29, 1993.
On September 16, 1994, Ailemen filed a motion to suppress the evidence obtained from the wiretap due to the government's failure to comply with the procedural requirements of 18 U.S.C. § 2518 . This motion was referred to Magistrate Judge Wayne D. Brazil on November 29, 1994.
After the parties exchanged several rounds of briefing, the magistrate conducted a seven-day evidentiary hearing, commencing on December 16, 1996. On May 22, 1997, the magistrate issued a one hundred twenty-nine page report in which he recommended that the court grant defendants' joint motion to suppress. After receiving an extension of time and relief from the page limits of the local rules, the government filed a one hundred eight page objection to the magistrate's report and recommendation ("Obj."). Defendants filed a response on August 18, which was followed by a reply on August 22. The court conducted a hearing on the matter on August 27, 1997. Upon consideration of the papers submitted by the parties and the arguments presented at the hearing, the court hereby ADOPTS the magistrate's recommendation that the court GRANT defendants' joint motion to suppress evidence obtained by electronic surveillance.
I
The referral of matter to a magistrate is governed by the United States Magistrates Act, 28 U.S.C. §§ 631-639 . Subparagraph 636(b)(1)(A) of the Act permits a district court to designate a magistrate to "hear and determine" pretrial matters other than certain enumerated dispositive motions, such as a motion to suppress. Motions to suppress *1231 are governed by § 636(b)(1)(B), which provides that "a judge may [] designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court of [the] motion." The court must review de novo legal conclusions and challenged findings of fact.
In making its de novo determination, the court considers the record which has been developed before the magistrate. See United States v. Raddatz, 447 U.S. 667, 676 , 100 S.Ct. 2406, 2412-13 , 65 L.Ed.2d 424 (1980). The court may accept or reject the magistrate's credibility determinations, recognizing that the magistrate is in the better position to assess the credibility of the witnesses he sees and hears. See Raddatz, 447 U.S. at 681 n. 7, 100 S.Ct. at 2415 n. 7; United States v. Mejia, 69 F.3d 309, 316 (9th Cir.1995). De novo review does not mean that the court must hold a new hearing to determine credibility disputes or grant further argument. See id. at 676, 100 S.Ct. at 2412-13 ; United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir.1990). Instead, the court must scrutinize the record and make its own decision what reliance to place on the magistrate's proposed findings and recommendations. Raddatz, 447 U.S. at 676 , 100 S.Ct. at 2412-13 .
II
In recognition of the highly intrusive nature of electronic surveillance, Congress devised strict procedures for the authorization of wiretaps. See United States v. Smith, 893 F.2d 1573, 1582 (9th Cir.1990) (citing United States v. Bailey, 607 F.2d 237, 241 (9th Cir. 1979)). At issue in this case is the necessity requirement of 18 U.S.C. § 2518 (1)(c), which requires an application for interception of a wire, oral or electronic communication ("wiretap") to include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Before approving a wiretap, the issuing court must satisfy itself that traditional law enforcement methods are unlikely to succeed or are too dangerous to attempt. 18 U.S.C. § 2518 (3)(c).
Consideration of alternative law enforcement methods is central to the issuing court's necessity inquiry. See United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985). Although an investigative agency need not exhaust all possible investigative techniques before requesting a wiretap, United States v. Homick, 964 F.2d 899, 903 (9th Cir.1992), it must demonstrate that "normal investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time." United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir.1977). Where ordinary investigative techniques have not been employed, the affiant must show that employment of such techniques "reasonably appear unlikely to succeed if tried or to be too dangerous." Id. Boilerplate assertions that the standard is met based on an agent's knowledge and experience will not suffice. Id. Instead, the affidavit must contain an "adequate factual history of the investigation and a description of the criminal enterprise sufficient to enable" the issuing court to determine on its own whether there is the requisite necessity for the use of a wiretap. See id. The court's inquiry should be guided by common-sense and practical considerations. United States v. Echavarria-Olarte, 904 F.2d 1391, 1396 (9th Cir.1990).
When law enforcement officers circumvent the procedural requirements of 18 U.S.C. 2518(1)(c), courts must suppress the evidence obtained from the illegal wiretap. Courts, for instance, will suppress evidence derived from a warrant issued on the basis of an affidavit that contains false statements regarding necessity. See, e.g., United States v. Ippolito, 774 F.2d 1482 (9th Cir. 1985). A reviewing court, however, may not throw out evidence of a crime simply because a law enforcement officer misrepresents some facts to the issuing court. See Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). Suppression is appropriate only if: (1) the affidavit contains misstatements or omissions made with the intent to deceive the issuing judge, or with a reckless disregard for the truth, that were material *1232 to the necessity determination; and (2) the affidavit, after the misstatements are deleted and the omissions are inserted, does not disclose the requisite necessity for a wiretap. See Ippolito, 774 F.2d at 1485-87 .
III
The government alleges that Pius Ailemen is a heroin smuggler who entices attractive women to courier drugs into the United States from international locations by promising them money and the opportunity to travel. The government first investigated Ailemen in 1987 and indicted him in 1989 on six counts, including conspiracy to distribute heroin. The jury acquitted Ailemen of all but a charge for making a false statement in a passport application. Ailemen was released from prison sometime around October 1991.
In October 1992, DEA agents Robert Silano and William de Freitas commenced a second investigation of Ailemen after Aaron Mouton agreed to serve as a confidential informant so that the government would reduce the amount of time that his brother would have to serve in prison. The investigation employed the services of Carl Estelle and John Gutierrez, two officers assigned to the Alameda County Narcotics Task Force.
On October 30, 1992, Mouton introduced Estelle, an experienced undercover investigator, to Ellis Quarshie, an intermediary for Ailemen. After Quarshie told Estelle that Ailemen was interested in exchanging heroin either for money or cocaine, Estelle assured Quarshie that he would get back to him. Estelle waited more than a month before he next contacted Quarshie.
Estelle met with Quarshie at his home on December 3, 1992, at which time Quarshie gave Estelle a sample of Ailemen's heroin and told him that Ailemen was prepared to do business. The two met again the next day to discuss prices. Quarshie and Estelle had several telephone conversations between December 6 and December 10, throughout which Estelle pretended to be in Los Angeles.
Quarshie and Estelle met in person again on December 10 and 11. Five agents surveilled the second meeting and, as a result, identified the Park Bellevue Tower in Oakland as Ailemen's residence. The agents further discovered that Nordahl Washington was the building's on-site manager. After determining that Washington was completely trustworthy, the agents learned some important information about Ailemen. Washington described Ailemen's apartment, identified two vehicles that Ailemen drove, provided cellular and residential telephone numbers for Ailemen and reported that Ailemen always used money orders to pay his $1,400 monthly rent.
Estelle and Ailemen met for the first time in person on December 12, 1992, after Estelle purchased an ounce of heroin from Quarshie at Quarshie's house. Estelle and Ailemen discussed the possibility of a trade of cocaine for heroin and Ailemen mentioned that he needed to go to New York to get more heroin. Estelle told Quarshie that he would keep in touch.
Estelle and Quarshie had several telephone conversations between December 18, 1992, and January 8, 1993, during which time Estelle pretended to be in Chicago, then Miami, looking for cocaine for Ailemen. Estelle told Quarshie on January 8 that he would be back in the Bay Area by January 11 and that he would contact him then. Despite the fact that Quarshie left messages with Mouton for Estelle almost daily for nearly four weeks, Estelle did not contact him until February 3, 1993.
In the meantime, agent Gutierrez led efforts to conduct surveillance at Ailemen's home. On December 14, Gutierrez met with John Shahoian, the property manager of Ailemen's apartment, who told Gutierrez that he and Washington would assist the investigation in any way possible. Washington gave Gutierrez a key to the building and an access device for entering the garage. The investigators later installed a pen register, which records the numbers of incoming calls, on the two telephone lines Ailemen used from his apartment. On January 8, 1993, the DEA obtained the first of three subpoenas through which it acquired the billing statements for Ailemen's cellular phone. Later that month, the investigative team installed a *1233 hidden video camera in the hallway outside Ailemen's apartment and arranged for a mail cover from the United States Postal Service. The agents later replaced the original video camera with a tape delay model. Neither camera produced a clear picture so it was difficult for the agents to identify the people who appeared in the footage.
On February 3, 1993, Estelle returned Quarshie's calls and met with him to arrange a 100 gram heroin purchase. Quarshie told Estelle that Ailemen was "so ready for you," that he had come down to Quarshie's house asking for Estelle, and that "he was really waiting for you." Obj. at 26. Estelle met with Ailemen and Quarshie at Quarshie's house on February 9, 1992. Estelle told Ailemen that Colombians from Miami were interested in trading cocaine for heroin and might be willing to meet with Ailemen in the Bay Area. Ailemen declined the offer, but later told Estelle that Ailemen's heroin was located in New York and he suggested the possibility of meeting the Colombians there. Ailemen also told Estelle that he began to fear that Estelle was a government agent when Estelle disappeared for so long, but that Estelle dispelled these fears with his recent purchase. Ailemen also explained to Estelle at that meeting how he used white female couriers because they do not attract police suspicion and he discussed with Estelle the possibility of sending some of his couriers to Tijuana to purchase some cocaine.
Estelle returned to Quarshie's house on February 11, 1993, and purchased 100 grams of heroin directly from Ailemen. Ailemen told Estelle that the heroin had arrived in New York at the same time as another plane that had been hijacked. The heroin was forwarded to San Francisco several hours later. Ailemen suggested to Estelle that Ailemen could get more heroin from Miami.
On February 16, 1993, Estelle called Quarshie to tell him that Estelle wanted to employ one of Ailemen's couriers to transport to Chicago the 100 grams of heroin that Estelle had just purchased from Ailemen. Quarshie gave Ailemen's cellular telephone number to Estelle. Quarshie and Estelle arranged for a courier to transport Estelle's heroin to Chicago. Ailemen mentioned to Estelle that he would get some cocaine from some people in Los Angeles. In addition, Ailemen offered to sell Estelle 100 more grams of heroin so that he could pay off a debt; Estelle declined the offer.
On February 19, 1993, Estelle met Ailemen, Quarshie and courier Kellee Cooper at Quarshie's house. Cooper and Estelle traveled by cab to the airport and sat next to each other on the airplane trip to Chicago. In Chicago, Cooper relayed the heroin to Sue Mitchell, an undercover DEA agent who was posing as the inexperienced courier hired by Estelle to transport the heroin from Chicago to Miami. Cooper gave Mitchell detailed instructions about how to smuggle drugs and how to act if stopped by law enforcement officials. The conversation and exchange were recorded on video and audio tape.
At the close of the exchange, Estelle had a telephone conversation with Ailemen in which Ailemen again urged Estelle to buy more heroin from him and Estelle said he would call Quarshie in a few days. Estelle did not contact Quarshie or Ailemen for about a month.
On February 24, 1993, the investigative team secured a warrant to install a pen register on Ailemen's cellular phone number. On February 26, 1993, surveillance agents saw a BMW that was registered to Lorelei Washington, the girlfriend of alleged co-conspirator Nathaniel Iheukwu, parked in front of Ailemen's apartment building. The agents followed Ailemen and "his associate," who was later identified as Nathaniel Iheukwu, to a check cashing business in Oakland despite the fact that Ailemen used counter-surveillance driving techniques.
On April 15, 1993, Assistant United States Attorney Nandor Vadas, who had been involved in both Ailemen investigations, presented the case to the grand jury. Agent Silano testified to the grand jury, among other things, that "we have approximately seven couriers to date identified that we feel that are current from the last investigation that are possible hits."
On May 11, 1993, a representative of Ailemen's cellular phone company contacted agent Silano and told him that Ailemen had *1234 paid his $2,000 phone bill in cash and had taken money out of a bag that appeared to contain another $8,000 in cash. The investigative team temporarily disabled the pen register on Ailemen's cell phone on May 27, because they learned that Ailemen complained to his cellular phone company that he was experiencing a 1-3 second service delay.
On June 11, 1993, Nordahl Washington contacted officer Gutierrez to alert him to the fact that Ailemen had hired a private investigator who apparently told Ailemen that he discovered a video surveillance camera hidden in the hallway. Ailemen expressed concern that he was being investigated. Washington assuaged Ailemen's fears by telling him that he was just paranoid. Ailemen had not disturbed the monitor and video recorder.
Based on this investigation, agent Silano presented his affidavit in support of the application for a wiretap to the issuing judge on July 29, 1993. The issuing judge signed the proposed order authorizing the wiretap later that day.
IV
The magistrate identified more than seventeen misstatements and omissions in the affidavit submitted to the issuing judge. Numerous of these, or combinations of them, support suppression. The court focuses on five.
A
The first set of misstatements concerns the scope and resiliency of the Ailemen "organization." After describing Ailemen's 1989 international heroin trafficking organization, the affidavit states that "[i]n 1990 Ailemen was acquitted of all narcotics violations in the Northern District of California leaving his heroin trafficking organization intact." Aff. at 8. To convey the impression that other law enforcement agencies were aware of, but unable to infiltrate, Ailemen's continuing smuggling enterprise, the affidavit reports: "According to the Oakland Police Department Intelligence Unit, Ailemen is presently the largest volume heroin dealer in the City of Oakland area." Aff. at 9.
Both of these statements are false. The government and AUSA Vadas admitted that the government had no basis to believe that Ailemen's organization continued to operate intact and undeterred by the 1991 prosecution. See TR 6-1305:10-22 and 6-1307:1-21. More importantly, the Oakland Police Department Intelligence Unit had no file and no information at all about Pius Ailemen or his organization. Although the government dismisses the misstatement about the size of the Ailemen organization as mere puffery, it appears more likely that this was a calculated attempt to exaggerate the difficulty of penetrating the Ailemen organization using traditional investigative techniques. By falsely attributing to the Oakland Police Department Intelligence Unit a statement that Ailemen was the largest heroin dealer in the City of Oakland, the affidavit gave the false impression that other law enforcement authorities had failed in their efforts to investigate and crack Ailemen's organization. Although this misstatement standing alone would not deprive the affidavit of the requisite necessity for a wiretap, it assumes an increased significance in light of its position at the beginning of the affidavit and the misstatements and omissions that follow.
B
Despite the fact that the affidavit stated that a wiretap was necessary to identify Ailemen's co-conspirators and aiders and abettors, see Aff. at 57 and 62, the affidavit presented to the issuing judge omitted the names of at least seven persons whom the government knew, or should have known from phone records, were linked to the Ailemen organization. See Report and Recommendation at 1276-78. These alleged participants, all suspects in the 1989 investigation, are: Nathaniel Iheukwu, Lorelei Washington, Victor Onuagulchi, Tina Tauer, Tiffany Valentine, Kali Knapp and Monetta White.
1
The government contends that it cannot be held responsible for failing to disclose these seven participants because the government had no legal obligation to do so. Although the government implicitly admits that these *1235 persons were suspects in the 1989 investigation, it states that "[t]he hard fact remains that the government never had enough evidence to charge them with any federal offense." Obj. at 56. The government then cites to United States v. Kahn, 415 U.S. 143, 151 , 94 S.Ct. 977, 982 , 39 L.Ed.2d 225 (1974), for the proposition that "Title III [of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2518 ] requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that individual is `committing the offense' for which the wiretap is sought." Obj. at 56 (emphasis added).
This case is different. In Kahn , the Supreme Court was construing 18 U.S.C. § 2518 (1)(b)(iv), which requires that the application state "the identity of the person, if known, committing the offense and whose communications are to be intercepted." Unlike the necessity requirement of § 2518(1)(c), which is directed primarily to protecting the individual whose phone will be tapped, section 2518(1)(b)(iv) is concerned largely with the privacy interest of persons other than the wiretapped individual whose privacy is curtailed by the fact that government agents are listening to their conversations; section 2518(1)(b)(iv) must be read in conjunction with § 2518(8)(d) which gives the issuing judge discretion to notify such persons that their conversations are being surveilled. See United States v. Donovan, 429 U.S. 413 , 423 n. 11 and 430, 97 S.Ct. 658 , 666 n. 11 and 669, 50 L.Ed.2d 652 (1977). Because the provisions serve different purposes, section 2518(1)(b)(iv) can be enforced even in the absence of a violation of the necessity requirement of § 2518(1)(c) and vice-versa.
Nor does § 2518(1)(b)(iv) create an outer limit on the names of persons included in the wiretap application so as to curtail the necessity inquiry. Cf. United States v. Martin, 599 F.2d 880 , 885 (9th Cir.1979), portions overruled on other grounds by United States v. DeBright, 730 F.2d 1255, 1256 (9th Cir. 1984) (rejecting proposition that Kahn requires that only those for whom there is probable cause to believe that person is committing criminal activity may be named in wiretap application). Where, as here, the identities of persons suspected to be involved in a criminal conspiracy with the subject of the wiretap are relevant to the necessity determination, the government is not relieved by § 2518(1)(b)(iv) of its obligation to reveal such information pursuant to § 2518(1)(c). "In cases where probable cause is doubtful as to some conversers, an investigative agency should be encouraged to name more, rather than fewer, participants in the application." Martin, 599 F.2d at 885.
2
The government also claims that the seven omissions are immaterial because it is entitled to apply for a wiretap "to uncover the sources of supply, details of the operation, and sufficient evidence to convict beyond a reasonable doubt." Obj. at 58. In other words, even if the wiretap was not necessary to learn some information that could not be discovered by traditional means, the wiretap was necessary to iron out all of the details of the conspiracy. This argument cannot be taken too far.
A determination whether an omission or misstatement is material requires the reviewing court to hypothesize about the effect of such knowledge on the issuing court. Ippolito, 774 F.2d at 1485-86 ; see Franks, 438 U.S. at 156 , 98 S.Ct. at 2676-77 . The reviewing court must put the challenged misstatements and omissions to one side and determine whether there remains sufficient content in the warrant application to support a finding of necessity. Ippolito, 774 F.2d at 1486-87 ; see Franks, 438 U.S. at 171-72 , 98 S.Ct. at 2684-85 . "If it would have no effect, then the misstatement [or omission] would not be material." Id. at 1486.
The government takes an unduly cramped approach to materiality. In its wiretap application, the government listed numerous purposes for the wiretap, ranging from the identification of co-conspirators to the development of admissible evidence against them. See Aff. 57 and 62. It now contends that a misstatement or omission is not material so long as it can identify one legitimate purpose for the wiretap that is not *1236 implicated by the removal of the alleged misstatement. While this might be an appropriate standard for materiality in the context of a single misstatement or omission, it is not appropriate where there are numerous misstatements and omissions and these falsehoods, when aggregated, undermine the issuing court's necessity determination.
The rule proposed by the government would permit law enforcement officers to escape the requirements of § 2518(1)(c) because the government can always identify some detail of the conspiracy, no matter how trivial, that could not have been discovered through traditional law enforcement techniques. [1] On the government's view, there would be situations where the affidavit would not be found to satisfy the necessity requirement when all of the misstatements and omissions are corrected, but the reviewing court could not make this determination because no single misstatement or omission is material in the sense that it alone dooms the affidavit. Not only is this an odd definition of "material," but it thwarts the purposes of § 2518(1)(c) if construed in this manner. In any event, there are two material omissions which, considered independently, require suppression of the evidence derived from the illegal wiretap. See parts IV-C and IV-E.
3
When viewed in the context of the other misstatements and omissions, the court finds that the omission of the identities of the seven participants in both Ailemen conspiracies was material to the issuing court's necessity determination. It is almost certain that the issuing court did not consider the necessity requirement to be met simply because the government lacked sufficient evidence to convict beyond a reasonable doubt. Instead, the affidavit gave the appearance that the wiretap was necessary to discern the identities and roles of Ailemen's co-conspirators and the scope and method of his organization. Aff. at 57 and 62. If the government had revealed to the issuing judge that it had discovered the identities of seven suspected participants in Ailemen's organization through traditional investigative methods, he would have recognized that the government could learn a great deal about the roles of these participants, as well as the identities of others, without resort to a wiretap. See part V. In the view of the undersigned, the issuing judge would not have authorized the wiretap if he knew how quickly the government had been able to identify the suspected participants in Ailemen's organization through traditional investigative means.
Furthermore, in light of the government's statement that "normal investigative procedures have not and likely cannot succeed in establishing the identities of the co-conspirators and aiders and abetters of Pius Ailemen (other than as set forth herein)," Aff. at 65, and at its overall attempt to portray the Ailemen organization as impervious to traditional investigative techniques, the court finds that the omissions were made with reckless disregard for the misleading effect it would have on the issuing judge.
C
The affidavit was also drafted to mislead the issuing judge about the ability of agent Estelle to penetrate the organization and learn more about its scope and sources of supply. In the section of the affidavit devoted to "Use of Informants and Undercover Government Agents," agent Silano stressed the need for the wiretap to identify Ailemen's suppliers and his distribution network. Aff. at 59. The section begins with a warning about the ineffectiveness of undercover agents in situations in which the subject lacks confidence in them; its bulk is devoted to "instances where the undercover agent was not brought into the complete confidence of the subjects." The affidavit thus created the misleading impression that Ailemen was distrustful and elusive with the undercover agent and that the undercover operation was unlikely to develop into a fruitful source of information.
1
In reality, undercover agent Estelle had gained the confidence of Ailemen in a remarkably short period of time. By mid-February *1237 1993, after spending less than two months of continuous contact with Ailemen, [2] agent Estelle was: permitted to work directly with Ailemen in a couriering operation to Chicago; repeatedly offered large amounts of heroin; and offered the possibility of traveling to New York with Ailemen to buy narcotics from Ailemen's people there. Ailemen even met directly with Estelle on two occasions and he explained to Estelle the reasons why Estelle dispelled Ailemen's concerns that his new buyer was a cop. [3] The necessity section of the affidavit omits these important details.
It is true, as the government contends, that the factual section of the affidavit, although omitting the other details, mentioned the possibility of the New York meeting and the trip by Estelle to Chicago. Aff. at 36 and 39-45. But the possibility of the New York meeting, was buried in a mass of detail about the discussions between Quarshie and Estelle that consumed nearly thirty-five pages of the sixty-five page affidavit. Aff. at 10-45. Placement of this important information is notable as much for what it concealed, as for what it revealed. In fact, the government took Ailemen's suggestion of a trip to New York quite seriously and set up a team of agents prepared to pose as Colombians to meet Ailemen and his people in New York. TR 4-919:12-19 (testimony of agent Silano). Agent Silano's explanation for not going forward with this operation is unilluminating ("because we did not want to meet in New York"). TR 4-919:20-22. The government did not share with the issuing judge the seriousness of the prospects for the New York meeting and its promise for advancing the investigation. Quite the opposite, the government gave a gloomy portrayal in the necessity section of agent Estelle's undercover investigation, see Aff. at 58-59, thereby cloaking the real promise of Estelle's investigation from the issuing judge. As the Ninth Circuit put it in another case, the portion of the affidavit devoted to "Exhaustion of Alternative Investigative Techniques" was "artfully drafted with the intent to mislead the [issuing] judge." United States v. Simpson, 813 F.2d 1462, 1471 (9th Cir.1987) (quoting district court).
2
The government argues that the omitted details of Estelle's involvement in the investigation of Ailemen were immaterial to the issuing judge's finding of necessity. Even if the government had included the alleged omissions, the government contends that the wiretap still would have been necessary to identify all of the defendant's co-conspirators, the entire scope of the conspiracy and all methods of transporting drugs. Obj. at 91. Specifically, the government contends that the magistrate engaged in impermissible second-guessing of investigative activities when he considered the possibility of Estelle traveling with Ailemen to New York because Estelle believed that the trip would not be fruitful and might be dangerous based on his years of investigative experience. Obj. at 71 and 74.
The government's criticisms of the magistrate are misplaced. In United States v. Spagnuolo, 549 F.2d 705 (9th Cir.1977), the Ninth Circuit discussed the role that an agent's law enforcement experience should play in his obligation to reveal facts pertaining to the exhaustion of traditional investigative tactics to the issuing judge. The Ninth Circuit declared that the affidavit's description of the investigative tactics that have been tried must be "sufficient to enable the district judge to determine, independently of an agent's assertions with respect to his or her other agents' experiences, that ordinary investigative techniques very likely will not succeed or that their use will imperil life or in some other specific way be too dangerous." *1238 Id. at 710 (emphasis added). The court went on:
To delay the wiretap order while ordinary techniques are employed or to undertake to educate a district judge to enable him to appreciate their level of experience no doubt appears to such agents as a waste of time and resources. Their perception may be accurate, but Congress has deprived it of decisive influence. The particularized showing here described is necessary. The district judge, not the agents, must determine whether the command of Congress has been obeyed.
Id. at 710-11 . The government cannot circumvent this requirement by citing to the post-hoc rationalization of officer Estelle that he thought the trip to New York would be futile or dangerous. If at the time the affidavit was submitted to the issuing judge, Estelle thought a trip to New York would not pan out or be too dangerous, the government's obligation was to disclose Estelle's views and his reasons to the issuing judge. Surely, the government cannot undo its failure to have made this submission by now using Estelle to second guess the magistrate.
For instance, the issuing judge should have been informed in the necessity section of the affidavit, or clearly in the fact section, that Ailemen suggested the possibility of a rendezvous in New York with his narcotics suppliers. Such further use of the confidential informant might very well have led to penetration of Ailemen's entire enterprise, including the source of Ailemen's supply and the identities other major co-conspirators. See part V. It was reckless for the government to portray the undercover efforts of Estelle as a failure and to conceal the leads it chose not to pursue.
D
The government discovered two other unpursued leads that were not reported to the issuing judge. On December 11, 1992, Washington, the confidential informant who was never named in the affidavit, disclosed to officer Gutierrez that Ailemen always paid his $1,400 monthly rent with money orders. On February 26, 1993, investigative agents followed Ailemen to "a money laundering, excuse me, scratch that, a check cashing establishment, alleged money laundering place." Grand Jury Testimony of Agent Silano, Ex 17 at 31. Nowhere in the affidavit does the government disclose to the issuing judge that its investigation turned up these fruitful sources of information. Nor does the government discuss these omissions in its objections to the magistrate's report and recommendations.
These omissions were reckless and material. It appears that the government failed to mention the money orders because doing so would have required the disclosure of Washington as a second confidential informant. As the on-site manager of Ailemen's apartment, Washington was a well-placed lookout for the government. Washington could monitor the comings and goings at Ailemen's apartment and could speak to Ailemen directly without arousing suspicion. Washington also made himself available as a source of information regarding the layout of the apartment and assisted the investigative team in setting up and maintaining video surveillance of Ailemen's front door. This second confidential informant was a great resource in the undercover investigation of Ailemen. Although Washington provided the investigative team with a wealth of information over more than six months of the investigation and was a potential source for more, he was not mentioned or identified in the affidavit submitted to the issuing judge.
The failure to disclose the discovery of the check cashing facility was also reckless. Law enforcement agents learned about the check cashing business after they successfully followed Ailemen to the facility despite Ailemen's use of counter-surveillance driving techniques. The affidavit conspicuously omits this discovery in its discussion of the results of physical surveillance. Worse still, the discussion of physical surveillance in the necessity section misleads the reader to believe that no such evidence was ever found. See Aff. at 60 ("In this particular case, surveillance succeeded only in corroborating "Pius'" travel to undercover meetings and heroin purchases, but revealed no evidence of the secret meetings he conducted or the private plans for delivery and distribution of *1239 heroin."). The government was at least reckless in omitting any reference to the money orders or check cashing business. This omission was material to the necessity determination. See part V.
E
In April 1992, Sidney Gladney, now a convicted member of the Ailemen conspiracy, was arrested in Canada on charges of "masterminding a 2 kilo smuggling attempt through Canada." Ex 70. The affidavit disclosed that: (1) the government had probable cause to believe that Gladney was committing narcotics offenses, Aff. at 3; (2) Ailemen had made ten phone calls to Gladney at his home and office from April 15 to July 28, 1993, Aff. at 52-53; (3) Gladney was identified as an associate of Pius Ailemen in the 1989 investigation, id. ; and (4) Gladney has a May 1992, arrest for heroin distribution, id. at 53. The affidavit, however, does not include crucial facts which link Gladney to Ailemen and which make clear that the government should have learned more about the Canadian investigation before submitting an application for a wiretap. AUSA Vadas prosecuted both the 1989 and 1992-93 investigations of Ailemen, so he knew that Gladney was a suspect in the earlier investigation and thus had reason to know, or at least suspect, a connection when Gladney's name resurfaced several times in 1992-93. AUSA Vadas was familiar with Ailemen's modus operandi of using female couriers to transport heroin across international borders and he knew that Gladney "had been stopped I believe at Toronto airport with two female couriers body-carrying heroin into Canada." TR 6-1302:21-23. In light of these known similarities between Ailemen's operation and Gladney's Canadian arrest, [4] it was reckless for the government not to have disclosed in the affidavit that it failed to explore fully the details of Gladney's illegal activities in Canada.
The government contends that the Canadian investigation was immaterial, and characterizes it as a "dead end," because neither of the female couriers arrested in Canada knew about Ailemen's source of supply and "Gladney never cooperated with the Canadian authorities." Obj. at 87-88. The government, however, could not have known at the time the issuing judge issued the warrant that Gladney would be uncooperative. A frequently used law enforcement tactic in drug cases is to encourage co-conspirators to "roll-over" on each other under threat of criminal prosecution and in exchange for sentencing consideration. The issuing judge would have insisted that the government explore whether this traditional law enforcement tactic held any promise in this case if he had known that a man closely linked to the Ailemen organization had been arrested for smuggling heroin through Canada using Ailemen's modus operandi and was available to Canadian authorities.
V
Having considered which misstatements and omissions were relevant to the issuing court's necessity determination, the reviewing court must consider for itself whether the corrected affidavit demonstrates the requisite need for a wiretap. The court may begin with "the specific circumstances that render normal investigative techniques particularly ineffective." Ippolito, 774 F.2d at 1486 .
In the section of the wiretap labeled "Need for Interception of Wire Communications; Exhaustion of Alternative Investigative Techniques," the affidavit identifies three types of information that the government could not obtain through traditional means: (1) the sources of Ailemen's heroin supply, Aff. at 58 and 59; (2) the identities of co-conspirators and aiders and abettors, id. at 57 and 62; and (3) the financial structure of the organization, see id. at 58. At the conclusion of the section, the affidavit includes the following boilerplate language:
For the reasons set out above, it is my opinion that normal investigative procedures available to law enforcement in the investigation of narcotics violators have *1240 been tried and have not been fully successful, are not reasonably likely to succeed if tried, or are too dangerous. It is my belief that the only reasonable way to develop the necessary evidence to discover and prosecute the persons involved in the above-described organization, to identify their locations and methods of operation, their sources of supply, and their financiers, managers, and supervisors, is to commence intercepting wire communications occurring to and from the cellular telephone number * * *. Normal investigative procedures have not and likely cannot succeed in establishing the identities of the co-conspirators and aiders and abettors of Pius Ailemen (other than as set forth herein), their places of operation for their importation and transportation of controlled substances throughout the various states, and their times, places, schemes, and methods for importation, selling, buying, possessing, concealing, delivering, distributing, or paying for controlled substances.
Id. at 64-65. Such generic language is far from specific about the inability of traditional methods to uncover specific information. The Ninth Circuit explicitly prohibited such "sidestepping" of the necessity requirement with general allegations about "drug conspiracies." Ippolito, 774 F.2d at 1486 . In any event, the court finds that the three main categories of information, as well as the smaller details, sought by the wiretap could have been discovered by traditional means.
A
Once the omissions regarding agent Estelle's investigation and the Canadian investigation of Sidney Gladney are inserted, there was no need for the wiretap to identify the sources of Ailemen's heroin supply. This was not a case in which the undercover agent aroused suspicion that he was a police officer, cf. United States v. Blanco, 1994 WL 695396 , at *6 (N.D.Cal. Dec. 8, 1994); nor a case where a prolonged investigation proved unable to gain the defendant's complete trust, cf. United States v. Spagnuolo, 549 F.2d 705 (9th Cir.1977) (nine month undercover operation unable to gain target's trust); United States v. Commito, 918 F.2d 95 (9th Cir.1990) (ten month investigation). Instead, after only two months of continuous contact, agent Estelle was invited to work with Ailemen in a couriering operation and Ailemen admitted that he no longer thought Estelle was an undercover agent.
For instance, Ailemen suggested the possibility that Estelle travel with him to New York to meet with Ailemen's suppliers. Although such undercover operation would have required members of the investigative team to leave its home turf, the trip almost certainly would have revealed the New York sources of Ailemen's drug supply.
Nor was such undercover work likely to be "too dangerous," as was suggested by agent Estelle three years after the investigation. The government knew that the Ailemen organization was not violent and that its members did not carry weapons. See Report and Recommendation at 1285-86; TR 1-196:1420; TR 2-283:14-19; TR 5-1073:9-14. Any potential danger could have been alleviated by the use of federal agents in New York who could even out the "home court advantage." The fact that federal agents in New York were unwilling to assist their Bay Area counterparts cannot create the necessity required for a wiretap. Had the affidavit candidly revealed the up side of agent Estelle's investigation, the court would have found that resort to a wiretap to learn the sources of Ailemen's supply was unnecessary. Cf. United States v. Simpson, 813 F.2d 1462 (9th Cir.1987).
This determination is buttressed by the information available with respect to the Canadian investigation of Sidney Gladney. In that investigation, Canadian agents identified two-Pakistani sources of multi-kilo quantities of heroin who were doing business with Pius Ailemen in April 1992. Report and Recommendation at 126. With the assistance of Canadian authorities, the government could have made an effort to determine if Sidney Gladney would reveal any details of Ailemen's organization. A wiretap was not necessary until after the government had pursued these leads.
*1241 B
The affidavit also omits the names of seven persons whom the government knew, or should have known, were participants in both the 1989 and 1992-93 Ailemen conspiracies. This means that at the time the government filed its application for a wiretap, it knew the names of thirteen persons whom it believed were linked to Ailemen. To learn the names and roles of the other co-conspirators, the investigators could have installed pen registers on the phones of at least some of these suspects, put covers on their mail, surveilled them or explored their financial transactions. Before the government took these conventional steps, there was no need for a wiretap to identify Ailemen's co-conspirators.
C
The government also failed to follow leads regarding the financial structure of Ailemen's organization. Ailemen paid his monthly rent by money orders which should have been traced to their origin. In addition, the government should have investigated the check cashing business, which it believed to be a money laundering facility, to obtain further information about the flow of Ailemen's drug proceeds. A probe into the money orders and check cashing facility, neither of which was revealed in the affidavit, could have uncovered a wealth of information regarding the financial structure of Ailemen's organization. In sum, the specific facts withheld from the issuing judge about this particular investigation reveal that traditional techniques were not exhausted or too dangerous and could have led the investigators to the details they sought by installation of the wiretap.
VI
Due to the large number of misrepresentations and the deceptive conduct of the government throughout the wiretap application and review process, the suppression motion now before the court is not amenable to a piecemeal analysis. And the magistrate did not take such an approach. Instead, the magistrate viewed the misrepresentations in their totality and in light of his determinations about the credibility of the government's witnesses. The magistrate's approach was on target. Only by isolating the numerous misrepresentations contained in the affidavit and considering each one alone and separate from the others is the government able to convince itself that its conduct does not warrant suppression. But when the misrepresentations in the affidavit are viewed together and in the context of the government's overall effort to obtain and preserve its wiretap, it becomes evident that the government agents engaged in a deliberate attempt to mislead the court and subvert the purposes of 18 U.S.C. § 2518 .
By enacting the necessity requirement of section 2518(1)(c), Congress sought to limit the use of wiretaps to situations in which traditional investigative techniques have been tried but found unlikely to succeed. See Legislative History of Omnibus Crime Control and Safe Streets Act of 1968, 1968 U.S.Code Cong. and Admin. News 2112, 2190-91. In this case, the government launched a successful investigation that uncovered several promising investigative leads. Rather than pursuing these leads with traditional methods, the government sought a wiretap.
To obtain judicial authorization for the wiretap, the government could not reveal the full potential of its traditional investigation. The affidavit misstated several facts; it omitted and buried others. Indeed, the magistrate identified more than seventeen such misrepresentations, almost all of which were concentrated in the nine pages of the affidavit devoted to necessity.
Not coincidentally, the necessity section was laden with boilerplate language and a one-sided account of the failures of the investigation. The affidavit does not at the outset describe the specific goals of the investigation and then explain why traditional investigative methods are unlikely to achieve those goals. Instead, the necessity section concludes with a laundry list of sought-after information and borrows language from section 2518(1)(c) to the effect that "it is my opinion that normal investigative procedures available to law enforcement in the investigation of narcotics violators have been tried and have not been fully successful, are not *1242 reasonably likely to succeed if tried, or are too dangerous." Aff. at 64-65. The generic quality of the necessity section coupled with its one-sided account of the defects in the ongoing investigation effectively misled the issuing judge about the promise of traditional investigative methods.
The court is therefore left with a decision about how to interpret the government's behavior. Under other circumstances, the misleading character of the necessity section might be chalked up to carelessness or neglect on the part of the affiant. If the affiant simply omitted details and used boilerplate language in a hasty attempt to conserve time due to some exigent circumstance, suppression might not be appropriate. The conduct of the affiant at the evidentiary hearing before the magistrate, however, suggests a more disturbing endeavor.
During the seven-day evidentiary hearing conducted in December, the magistrate had an opportunity to observe the demeanor of the law enforcement agents and to assess their credibility. The magistrate observed that "[affiant-agent Silano] sometimes openly looked to government counsel before offering an answer, apparently either hoping for an objection or looking for a clue about how to proceed. * * * Agent Silano's testimony was marked too little by forthrightness and too much by an unbecoming concern about the legal significance of answers to questions." Id. The court should defer to the credibility determinations of the magistrate unless presented with evidence or reason for a new evidentiary hearing. See Raddatz, 447 U.S. at 681 n. 7, 100 S.Ct. at 2415 n. 7. The government has presented no evidence or reason to disturb the magistrate's findings in this regard. Indeed, at the hearing on this matter, the government did not contend that an evidentiary hearing was necessary.
When the deceptive character of the affidavit is considered in light of the agent's conduct at the evidentiary hearing, a pattern of behavior intended to obtain and protect the wiretap emerges and shows that the government acted without respect for the necessity requirement of § 2518(1)(c). The pre-wiretap investigation in this case uncovered promising leads that would have obviated the necessity for a wiretap. The government claimed in the affidavit that normal investigative efforts were unlikely to reveal the sources of Ailemen's heroin supply; in fact, Canadian authorities had already discovered two Pakistani sources and agent Estelle had the possibility of meeting others in New York. The government claimed that normal investigative efforts were unlikely to reveal the identities and roles of Ailemen's co-conspirators; the investigative team had already identified seven persons whose names had surfaced in connection with both Ailemen investigations and whom the government suspected were Ailemen's agents. The government claimed that normal investigative efforts were unlikely to reveal the financial structure of Ailemen's organization; it did not bother to research what it knew were obvious money laundering techniques.
Aware that full disclosure of these leads to the issuing judge would deprive the government of its wiretap, the affiant either omitted the leads or concealed them under a mass of unnecessary detail in the fact section and a gloomy portrayal of the investigation in the necessity section. When called to account for his actions by the magistrate, the affiant demonstrated what the magistrate found was an effort to conceal the truth. Deceptive behavior by government agents to mislead the issuing judge subverts the purposes of section 2518(1)(c). Under these circumstances, the court has no alternative but to suppress the unlawfully obtained evidence. See 18 U.S.C. § 2518 (10)(a); see also Legislative History of Omnibus Crime Control and Safe Streets Act of 1968, 1968 U.S.Code Cong. and Admin. News 2112, 2160 ("To bring criminal sanction into play, it is necessary to develop legally admissible evidence. Due process requires no less.").
For the foregoing reasons, the court ADOPTS the magistrate's recommendation that the court GRANT defendants' joint motion to suppress evidence obtained by electronic surveillance.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION RE DEFENDANTS' MOTION TO SUPPRESS EVIDENCE ACQUIRED DURING AND AS A RESULT OF WIRETAP
BRAZIL, United States Magistrate Judge.
*1243
TABLE OF CONTENTS
I. PROCEDURAL BACKGROUND AND RECOMMENDATION ............................ 1243
II. LEGAL STANDARD ...................................................... 1244
III. CONTEXT ............................................................. 1245
IV. SUMMARY OF PRINCIPAL FINDINGS ....................................... 1246
V. FINDINGS OF FACT: A CHRONOLOGICAL PORTRAIT OF THE INVESTIGATION
AND OF AILEMEN'S RESPONSE TO THE UNDERCOVER
OPERATION .............................................................. 1249
VI. THE CREDIBILITY OF THE AFFIANT AND ITS ROLE IN RESOLVING
THE ISSUES PRESENTED BY DEFENDANTS' MOTION; ADDITIONAL
FINDINGS OF FACT BASED ON TESTIMONIAL CREDIBILITY ...................... 1260
VII. THE AFFIDAVIT: MATERIAL MISSTATEMENTS ............................... 1274
A. The Identities of Other Participants ............................. 1275
B. "Danger" and the Use of Normal Techniques ........................ 1285
C. In 1990 Ailemen Was Acquitted, Leaving His Heroin Trafficking
Organization Intact ................................................... 1286
D. The Largest Volume Heroin Dealer in the City of Oakland Area ..... 1288
E. Duration of Use of Video Camera .................................. 1288
F. Use of Informants and Undercover Agents .......................... 1289
G. Consensual Monitoring ............................................ 1293
H. Physical Surveillance ............................................ 1295
I. None of the Named Interceptees Is Known to Be Represented by
Counsel ............................................................... 1297
VIII. THE AFFIDAVIT: RECKLESSLY MISLEADING INFORMATION
THAT WAS MATERIAL TO THE NECESSITY DETERMINATION
The Interview of Francis Idialu ..................................... 1298
IX. THE AFFIDAVIT: ADDITIONAL MATERIAL OMISSIONS
Resources Not Utilized and Leads Not Pursued ........................ 1301
Keesha Duncan ....................................................... 1301
Robert Tinney ....................................................... 1302
Mrs. B. Aghayere and Tracey Asemota ................................. 1302
Leads Through the Hijacking ......................................... 1303
DHL, UPS, and Federal Express Records ............................... 1303
Travel Records ...................................................... 1304
Financial Records ................................................... 1304
The Canadian Case in Which Sidney Gladney Was Charged ............... 1308
X. CONCLUSION AND RECOMMENDATION ....................................... 1314
I.
PROCEDURAL BACKGROUND AND RECOMMENDATION
As requested by the District Court, I conducted an evidentiary hearing on the defendants' joint motion to suppress the evidence acquired during and as a result of the wiretap that District Judge D. Lowell Jensen first authorized on July 29, 1993. In authorizing the wiretap, Judge Jensen relied on a 69 page "Affidavit In Support of Application" (hereafter referred to and cited simply as the "Affidavit") that was executed and filed that same day, July 29, 1993. The affiant was Special Agent Robert J. Silano, who had been the chief case agent in the investigation in which the wiretap was to be used. At the same time Agent Silano submitted his affidavit, the formal "application" for the wiretap was submitted by Assistant United States Attorney Nandor J. Vadas, the prosecutor who was assigned primary responsibility for this matter from its inception until about the time Judge Jensen initially authorized the wiretap. (TR 6: 1304).
The evidentiary hearing on this joint defense motion consumed some six and one-half days—December 9 through December 16 of 1996 and February 3, 1997. [1] Hundreds of pages of exhibits were admitted. The transcript *1244 of the proceedings (cited here as TR) consumes about 1,450 pages. The post hearing briefing, which was substantial, concluded on March 7, 1997, with the filing of a supplemental reply brief by defendant Nathaniel Iheukwu. At that point the matter was deemed submitted.
Based on the findings of fact that are made below, as well as the legal reasoning described herein, I RECOMMEND that the District Court GRANT THE DEFENDANTS' JOINT MOTION TO SUPPRESS the evidence obtained during and as a result of the wiretap that Judge Jensen first authorized on July 29, 1993.
II.
LEGAL STANDARD
The defendants' motion is based on the contention that in securing authorization for the wiretap the government violated the "necessity" requirement that Congress interposed as a precondition to use of this kind of investigative tool. That requirement is articulated in paragraphs (1)(b) and (3)(c) of 18 U.S.C. § 2518 . Through these paragraphs, Congress required applications for wiretaps to include, among other things, "a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including ... [(1)(c)] a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Under paragraph (3)(c) of the same statute, a district judge cannot authorize use of a wiretap unless, among other things, he or she determines "on the basis of the facts submitted by the applicant that .... normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous."
Under the applicable authorities, defendants may challenge the issuance of an order authorizing a wiretap through a three-step analytical process. First, they must prove that the affidavit on which the issuing judge relied contained misstatements or omissions. Second, they must prove that the misstatements or omissions were either intentional or the product of recklessness. Third, they must show that if the misstatements were deleted or corrected, and if the information that was omitted was added, a district court would conclude that the required showing of "necessity" for the wiretap had not been made (thereby making the intentional or reckless misstatements or omissions "material" to the "necessity" determination). See United States v. Ippolito, 774 F.2d 1482 (9th Cir.1985); and Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978).
According to the Ippolito court, the "necessity" requirement reflects a congressionally mandated (statutory) presumption against authorizing a wiretap. It is only by making the requisite showing of necessity that the government can overcome that presumption. Id., at 1486 . Moreover, to be sufficient to overcome the presumption, a showing of necessity
"must allege specific circumstances that render normal investigative techniques particularly ineffective or the application must be denied. [citations omitted] The reason for requiring specificity is to prevent the government from making general allegations about classes of cases and thereby sidestepping the requirement that there be necessity in the particular investigation in which the wiretap is sought. The District of Columbia Circuit observed that: `we must be careful not to permit the government merely to characterize a case as a "drug conspiracy" ... that is therefore inherently difficult to investigate. The affidavit must show with specificity why in this particular investigation ordinary means of investigation will fail.'"
The Ippolito court proceeded to point out that in determining whether the government has satisfied the necessity requirement district courts must use a "practical and common sense approach," applying a "standard *1245 of reasonableness." Under this approach, "law enforcement agencies need not exhaust all conceivable alternative procedures before resorting to a wiretap, [but] the government must show, by a full and complete statement ... that normal investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time." Id.
For the reasons explained at length below, I have concluded that the affidavit that the government submitted to Judge Jensen in this case fell far short of being "a full and complete statement" about the status of the investigation at the time the wiretap was sought. The affidavit included material misstatements, made either intentionally or recklessly. As important, the government omitted from the affidavit, intentionally or recklessly, a great deal of information that was material to a necessity determination. If the false and foreseeably misleading statements had been corrected and the omitted information had been added, Judge Jensen would not have authorized the wiretap—because he would have concluded that the government had not yet made the required "good faith effort" to generate the evidence it needed through normal investigative techniques. Id. Instead, it would have been clear to Judge Jensen that, relative to the alleged magnitude of the case and the "high priority" of the investigation, the government had not devoted reasonable resources over a reasonable period of time to normal investigative methods.
III.
CONTEXT
The recommendation made here implicates values and interests of sufficient moment to warrant additional prefatory comment. First, it is important to me that all parties understand that I take no pleasure in making either the findings or the recommendation that are presented in the pages that follow. If my recommendation is accepted, the government will not be able to use a great deal of evidence—evidence that might implicate several defendants in criminal conduct that is profoundly despicable. The findings and recommendations made in this Report are informed by no sympathy for persons who commit drug offenses and no joy over the effects this Report may have on the government's ability to make its case against the remaining defendants.
I also take no pleasure in passing judgment on the good faith and/or competence that attended the preparation and presentation of the affidavit and the testimony given in the evidentiary hearing. I make these judgments about the work and words of others only because I am required to do so by my job. And I profess no infallibility. Both my charge and the reach of my resources are limited: I only draw inferences based on reason from evidence. I cannot "know" with absolute certainty that my inferences are accurate or that my judgments are fair. It is not my place to pass ultimate moral judgment — rather, I apply a legal standard to the record that counsel have developed.
It also is important to emphasize that I understand that the legal standard that is applicable here is not perfection—and that the vantage point from which the pertinent judgments are to be made is not the full clarity of 20/20 hindsight. The applicable law leaves reasonable room for human error (as reflected in phrases like "practical and common sense" and "standard of reasonableness"). And the "necessity" requirement cannot be construed literally—it does not mandate that the government exhaust every normal investigative technique or that the affiant for a wiretap disclose to an issuing judge every nook and cranny of an investigation or every conceivable lead not followed. Rather, what the law requires is a good faith and substantial effort to acquire needed evidence by traditional means, or a showing either that there is insufficient likelihood that such an effort would be successful or that it would be unacceptably dangerous. After making such a good faith effort or determination, the law requires the government to submit an affidavit that gives the issuing judge a fair, essentially accurate picture of the status of the investigation, of what the government has tried to do, what it has learned, and which apparently promising investigatory avenues it has not pursued (before seeking authorization to use the wiretap). *1246 It is because I have concluded that the affidavit presented to Judge Jensen falls far short of achieving these fundamental purposes that I recommend suppression of the evidence acquired through and as a result of the wiretap.
While the necessity requirement demands something considerably less than perfection, it must have some real meaning, and a responsible court has no choice but to order suppression when, as here, the affidavit clearly fails to meet the standards that derive from that requirement.
There is one additional set of considerations that must be borne in mind by judges who are addressing the kinds of issues raised here and by law enforcement agents who are drafting affidavits for wiretaps. The district judges to whom these kinds of affidavits are presented face, at least in many urban courts, pressing and diverse demands on their clearly limited resources. Many (unlike Judge Jensen) have no background in criminal law. Many will not have a refined understanding of the subtleties of the necessity requirement. And in many instances, the government will present the affidavit the same day it hopes to begin the wiretap. Judges, of course, are not required to complete their reviews on a timetable set by the investigators, but many judges feel constrained to try to respond promptly to what they assume is a real law enforcement need.
Given these foreseeable facts of judicial life, it is wholly unrealistic to expect most district judges to spend hours and hours of assertive analytical effort dissecting and probing affidavits like this. It is reasonable to expect reviewing judges to be conscientious, and to read the affidavits carefully, but the affidavits must be crafted in a way that will permit a conscientious district judge to understand all the essential elements of the investigatory situation without committing an unreasonable number of hours to the effort. This means that the affidavits must be straightforward (clear, direct, and succinct) about the matters that are most important to the necessity determination. They must be drafted to communicate clearly and quickly the actual state of the investigation and of the government's knowledge. In short, the foreseeable circumstances in which many district judges will be reviewing these kinds of affidavits place a real premium on quality and honesty in drafting. Knowing that a wiretap can threaten core values in our society and that a reviewing district judge will be forced to rely heavily on the product of their work, the government's agents and lawyers should make extra efforts to be sure their affidavits fulfill Congress' expectations.
I make these observations because I was able to understand many of the important shortfalls in this affidavit, to see through the mass of minutiae to some of the core realities of the investigatorial situation, and to identify important internal inconsistencies, only after a great deal of careful analysis and, in some instances, only with the aid of adversarial briefs and testimonial elucidation. [2] As I will make clear with specific examples in sections that follow, the structure and content of Agent Silano's affidavit tend to obscure important facts about the state of the investigation. And in some important instances words in the necessity section are inconsistent with details in the body of the description of investigatorial undertakings. Moreover, in some places the phraseology in the affidavit is ambiguous or misleading— making accurate understanding very difficult. Standing alone, these characteristics of the affidavit might not be sufficient to warrant suppression under the standards established by Franks and Ippolito , but joined, as they are, with so many material misstatements and omissions, they reinforce my conviction that the only legally appropriate response to defendants' motion is to grant it.
IV.
SUMMARY OF PRINCIPAL FINDINGS
The affidavit that the government submitted to Judge Jensen on July 29, 1993 was *1247 fundamentally misleading and was drafted either with intent to conceal facts that were critical to the necessity determination or with reckless disregard for whether the affidavit would have that effect. In combination, material misstatements and omissions, internal inconsistencies, ambiguous phraseology, the fact that much of the affidavit was devoted to a recitation of obviously unnecessary details about a limited set of interactions with two defendants, and the timing of the presentation of the affidavit to Judge Jensen (several months after the government had stopped virtually all of the significant investigatory work on the case that was not related to analysis of use of telephones) compel the conclusion that the affidavit, intentionally or recklessly, obscured or concealed (1) how modest the commitments had been to normal investigative techniques, (2) despite the modesty of these commitments, how many alleged co-conspirators or aiders and abettors, as well as how many likely interceptees, the government had been able to identify, (3) how many leads and significant investigative opportunities the government had before the wire went up but chose not to pursue, and (4) how early the government shifted the focus of its investigation away from other, traditional investigative work and toward preparing for the wiretap.
On the basis of evidence described below, I find (1) that the government in fact devoted less than two months of serious undercover and surveillance work to this investigation before it decided to shift the investigatorial center of gravity to the wiretap, [3] (2) that that work had been remarkably successful and held considerable promise, (3) that the government chose not to pursue many potentially significant investigatory leads that it had developed, or with reasonable competence should have developed, well before it sought authorization for the wiretap—and that some of these leads clearly would have yielded valuable information about the sources of the drugs in which Ailemen was trafficking, (4) that the decision to rely on the wiretap as the principal investigatory tool was made no later than the first week in March of 1993— almost five months before the application was submitted, and (5) that after that time the only investigatory efforts of any consequence were directed toward analysis of telephone communications.
I also find that the affidavit was drafted, intentionally or recklessly, in a way that effectively obscured all of these facts from Judge Jensen's view. It encouraged him to infer, erroneously, that the government had devoted considerable resources to this "high priority" [4] investigation, that the undercover operation had enjoyed only very limited success because Ailemen remained elusive and distrustful, that substantial investigatory work through traditional techniques continued to be undertaken during March, April, May, June and July of 1993, [5] and that the government had precious few promising leads that were amenable to normal (non-wire) investigation at the time the affidavit was submitted.
The affidavit did not disclose how much the government knew about the connections (in personnel and operations) between the instant case and the case it had unsuccessfully prosecuted against Ailemen in 1989 and 1990. Nor did the affidavit disclose that the agents who worked on the 1993 case devoted appreciably less than full time to it before *1248 the wiretap application was presented, [6] that resources from other law enforcement agencies were available but not used, that after the first two undercover buys, in which the government spent a total of $27,000, the agents decided that they would not spend any additional money in drug transactions with the defendant (even though the government believed he regularly engaged in transactions involving much larger quantities of heroin and much larger sums of money), that virtually all of the limits on the government's interaction with the defendant (through the undercover agents and the principal confidential informant) were self-imposed, that no meaningful effort had been devoted to exploring the financial aspects of Ailemen's activities (or the financial aspects of the activities of any of the other suspected members of his "organization"), or that the lead case agent for the DEA allegedly felt that other DEA offices and other federal law enforcement agencies had not been responsive to his informational needs and would not commit significant resources to this case unless and until a wiretap was installed. All of these facts would have been material to the necessity determination by the district judge—and the government's failure to disclose them was the product of at least recklessness.
It also is significant that the center of informational gravity in the affidavit is fundamentally misleading. The affidavit is dominated by a plethora of unnecessary detail about two sets of interactions between the undercover agent and Pius Ailemen or Ellis Quarshie. [7] The two periods of substantial interaction were December 3 through December 12, 1992, and February 3 through February 19, 1993. More than 30 pages of the affidavit is devoted to description of the details of conversations and conduct during these two periods—details that were obviously unnecessary for any of the purposes for which the affidavit was submitted.
For example, the probable cause requirement of 18 U.S.C. § 2518 (3)(a) clearly could have been satisfied with a much shorter, more focused presentation of the basic facts about the two sales by Ailemen to the undercover agent. Nor were most of these details necessary to show that "particular communications" concerning the alleged offenses would be obtained through the proposed interceptions; [8] the affidavit devoted another nine pages to material pertinent to that requirement. [9] The fact that so much of the affidavit was devoted to such clearly unnecessary detail invites an inference that its purpose was not to meet any requirements imposed by the law, but to create a false impression about the magnitude of the effort committed to normal investigatory techniques —and to distract the reviewing judge's attention from the fact that potentially important leads had not been pursued and from the fact that during the last several months before the affidavit was submitted the only consequential effort in the case was devoted to analysis of use of the target phone.
Finally, it is important to point out the location, in the affidavit, of the most troublesome omissions, misstatements, and misleading presentations. It is not insignificant that the defects in the affidavit that are most consequential to the necessity determination appear in two critical places: (1) in the background section, near the beginning, where the basic predicates that will inform the reading of the remainder of the text are set forth, and (2) in the "necessity" section, i.e., that portion of the affidavit where the government purports explicitly to summarize the circumstances that give rise to the "Need for Interception of Wire Communications; Exhaustion of Alternative Investigative Techniques." *1249 Affidavit at 57-65. Reckless omissions and errors in these two parts of the affidavit have greater impact than they would in other areas. Moreover, because the bulk of the affidavit is burdened by the inclusion of so much obviously unnecessary detail, the drafters of this affidavit could have foreseen that a reviewing judge would not be likely to detect inconsistencies between the summaries presented in the "necessity" section and the facts and evidence set forth so laboriously in the central portions of the affidavit.
V.
FINDINGS OF FACT: A CHRONOLOGICAL PORTRAIT OF THE INVESTIGATION AND OF AILEMEN'S RESPONSE TO THE UNDERCOVER OPERATION [10]
I find the following facts.
The first federal investigation of alleged drug trafficking by Pius Ailemen began in 1987. The lead case agent was the DEA's William Iseri. Agent Silano was not assigned to that case and did no work on it, but had heard a little about it. [11] The principal prosecutor was Nandor Vadas, who also was the principal prosecutor assigned to the current case until the end of July of 1993.
In the earlier case, undercover agents negotiated drug transactions with Ailemen and learned that he used young, white, female couriers to transport heroin from overseas into and around the United States. Many of the these couriers were identified, [12] and some gave the prosecutors considerable information about how Ailemen smuggled drugs. See, generally, Exhibits 2—9. The first investigation also developed information implicating Sidney Gladney, Nathaniel Iheukwu, Loreli Washington, and Victor Onuaguluchi in Ailemen's trafficking. During the undercover part of the investigation, an agent had been able to develop a "very good rapport" and a trusting relationship with Ailemen quickly; in fact, Ailemen had offered to take two undercover agents to Amsterdam to meet with a man who Ailemen said was exporting large quantities of heroin to the United States. [13] TR 1:98; Ex. 3 at 16.
The trial in the first case against Ailemen occurred in 1990. The jury convicted him only on one count, for intentionally making a false statement in a passport application. He was acquitted on all the drug charges after presenting, largely through his own testimony, what amounted to a duress defense. He was sentenced initially to five years in prison, but that sentence was appealed. By October of 1991 he had been released from prison, and when the investigation that led to the current charges began (in the late summer/early fall of 1992) he was on parole. [14]
The investigation that led to the filing of the complaint in the instant action began in October of 1992. Agents Robert Silano and *1250 William de Freitas decided to open this investigation after Aaron Mouton, [15] a private citizen who agreed to serve as a confidential informant in the hope that by helping the government he could reduce the time his brother would spend in prison, gave the agents enough information about himself and about Pius Ailemen to persuade the agents that it was appropriate to pursue this matter.
By about mid-October, 1993, arrangements had been made to secure the cooperation of two officers assigned to the Alameda County Narcotics Task Forces: John Gutierrez and Carl Estelle. TR 6:1171; TR 5: 1072-75. Officer Estelle was designated to serve in an undercover capacity; his assignment was to try to develop a relationship with Pius Ailemen and to learn as much as he could about Ailemen's drug trafficking and his "organization."
On October 30, 1992, Mr. Mouton, the confidential informant, introduced Estelle, who was pretending to be interested in drug transactions with Ailemen, to Ellis Quarshie, whom Mouton knew was prepared to act as an intermediary to Ailemen. During this meeting, Estelle expressed interest in buying heroin from Ailemen and Quarshie told Estelle that Ailemen generally dealt in large amounts of heroin. Quarshie indicated that he would provide Estelle with a sample of the heroin that Ailemen had for sale; Quarshie also told Estelle that Ailemen was looking for a source of cocaine. At the close of this meeting, Estelle told Quarshie that Estelle "would be getting in touch with Quarshie through" Mouton. Aff. at 11.
Estelle made no effort to contact Quarshie for more than a month. On December 2, 1992, Mouton telephoned Quarshie at his place of work and asked if Estelle could call Quarshie. Quarshie agreed. Ex. 20. On December 3, 1992, Estelle called Quarshie at work and arranged to meet Quarshie at his house that evening. Quarshie gave Estelle his home phone and address. When Estelle went to Quarshie's house that night, Quarshie gave him a sample of the heroin that Ailemen had for sale. Aff. at 11-12. Quarshie also indicated that Ailemen was ready to do business—but that Quarshie "wanted to get Estelle and Pius together because he (Quarshie) didn't want to be in the middle of the future transactions." Aff. at 13.
Later in the evening of December 3, 1992, Quarshie contacted Estelle by phone and asked to meet the next day. On December 4, 1992, when Quarshie and Estelle met, Quarshie gave Estelle the price that Ailemen would charge for one ounce of heroin ($6,000) and told Estelle (again) that Ailemen was ready to do business. Quarshie also told Estelle that after the first or second transaction, Ailemen would be "willing to front one half" of the heroin Estelle purchased. Aff. at 13-14; Ex. 77. At this meeting Quarshie "again stated that he (Quarshie) would prefer that `Pius' and UCA Estelle do their own business so that Quarshie would not be responsible for the heroin if something went wrong." Aff. at 15.
On December 7, 1992, Aaron Mouton reported to the DEA investigators that Quarshie had repeatedly been trying to reach him by phone, apparently anxious to arrange for drug transactions between Ailemen and Estelle — but that Mouton had not returned the calls. TR 2:326-27.
Between the 6th and the 10th of December Quarshie and Estelle had several phone conversations, during which Estelle pretended to be in Los Angeles. Aff. at 15-18. On December 10, 1992, Estelle went to Quarshie's house for a second time and received yet another sample of heroin, this from the new batch that Ailemen had for sale. On this occasion Quarshie told Estelle that the heroin was transported by couriers who body-wrapped it. He also told Estelle, again, that Ailemen would front half the heroin after the first transaction had been completed. Aff. at 18-20; TR 2:238. The next day Quarshie and Estelle met again. In addition to giving Estelle more information about prices and making arrangements for the one-ounce purchase on the 12th, Quarshie told Estelle that Ailemen got heroin from New York. Aff. at 20-22.
*1251 By following Quarshie, agents had identified the apartment building (the Park Bellevue Tower) in Oakland where Ailemen resided. Officer Gutierrez identified the on-site manager of the apartment building, Nordahl Washington, then checked with other officers to determine whether Mr. Washington could be trusted with confidences. On December 11, 1992, after learning that Mr. Washington was completely trustworthy, officer Gutierrez visited the Park Bellevue Tower to introduce himself to Mr. Washington and to ask for information about Pius Ailemen. TR 6:1181-83; 1203. During this visit, Mr. Washington identified and described the layout of the apartment in which Ailemen lived, provided two of Ailemen's telephone numbers (one for the residence, one for his cellular phone), reported that Ailemen always used money orders to pay his $1,400 monthly rent, alerted officer Gutierrez to the fact that Ailemen's apartment was one of only three in the building that was equipped with an alarm, and identified two vehicles that Ailemen drove. Ex. 22 (and Gov.'s Y); TR 6:1182—83.
The next day, December 12, 1992, undercover agent Estelle drove to Ellis Quarshie's house to purchase the ounce of heroin. After Quarshie handed him the heroin, Estelle paid Quarshie the $6,000 in cash, plus a $200 bonus for making the arrangements with Ailemen. Gov.'s Ex. S; Aff. at 23-24. Shortly after Quarshie counted part of the money, Ailemen phoned and told Quarshie that he was on his way over and wanted to meet Estelle. Ailemen also spoke with Estelle on the phone. A few minutes later Ailemen arrived at the house. In the ensuing conversation he told Estelle that he wanted to acquire two to four kilos of cocaine for distribution in Europe and that he would be willing to trade heroin for cocaine if Estelle was interested in handling the transaction that way. Estelle indicated that he would contact possible sources in Los Angeles and try to supply the cocaine that Ailemen needed. Ailemen also told Estelle that he was going to New York to get more heroin, that he had about one kilo for sale now, that he preferred selling heroin in kilo or half-kilo amounts, and that he would like to see Estelle make purchases at that level so he could get the wholesale price from New York. Gov.'s Ex. S.
During this conversation Ailemen also told Estelle that his name was Pius and that Estelle could call him "P." Id. Before Estelle left this meeting he told Quarshie that he would call him within an hour to let him know whether he (Estelle) would be able to supply the cocaine that Ailemen wanted. Id.; Aff. at 27. Later that day Estelle called Quarshie to tell him that the cocaine he thought he might be able to get for Ailemen was not available because it already had been distributed. He also told Quarshie that he would be going to Chicago for a while but would keep in touch. Gov.'s Ex. E.
On December 14, 1992, officer Gutierrez made another visit to Nordahl Washington at the Park Bellevue Tower. When he arrived he saw a black male leave the building and get into the BMW that Washington had identified as one of the cars Ailemen used. Washington told Gutierrez that the man who drove off in the car was an associate of Ailemen's. Officer Gutierrez subsequently learned that the man he saw on this occasion was Nathaniel Iheukwu. TR 6:1194-95. Later in the day on December 14th officer Gutierrez used the license plates of the vehicles that Nordahl Washington had identified to learn from DMV records that the white BMW was registered to "Lorelo [sic, really Loreli] M. Washington." [16] Ms. Washington was the common law wife of Nathaniel Iheukwu. Ex. 5-B at 30. Iheukwu and Loreli Washington had been identified by the DEA in the 1989 investigation as likely participants in Ailemen's drug trafficking. Ex. 5-B at 29-30. Gutierrez' research through DMV records on the 14th also disclosed that the Alfa Romeo that Ailemen drove was registered to Kelly Lambert, who also had been identified as a likely participant in Ailemen's drug trafficking in the 1989 investigation. Ex. 23; Gov.'s Ex. Y; Ex. 5-B at 29.
During this visit on December 14, 1992, Nordahl Washington gave officer Gutierrez a key to the building (common areas) and an access device for entering the garage. Ex. 23; TR 6:1182-83. Officer Gutierrez also *1252 had a conversation at this time with John Shahoian, the property manager of the complex, who "stated that he [and Nordahl Washington] would assist in anyway possible." Ex. 23; TR 6:1184.
By December 8, 1992, Agent Silano, with some assistance from Agent de Freitas, had drafted the proposal to have the investigation of Pius Ailemen and his trafficking associates designated as an OCDETF matter (Organized Crime Drug Enforcement Task Forces). At least two-thirds of this proposal consisted of a virtually verbatim copy of the body of the proposal for OCDETF designation of the earlier investigation that DEA Agent William Iseri had written in December of 1988. [17] By December 21, 1992, this second investigation of Pius Ailemen had been approved as an OCDETF matter—with seven different federal law enforcement agencies (in addition to the DEA and the Alameda County Narcotics Task Force) agreeing to participate.
Sometime in December of 1992 the investigators installed a pen register on the two phone lines that Ailemen used from his apartment. Ex. 17 at 35.
Undercover agent Estelle and Ellis Quarshie spoke over the phone five times between December 18, 1992 and January 8, 1993. During this period Estelle pretended to be in Chicago, and then Miami, and pretended to be looking for cocaine for Ailemen. Quarshie told Estelle several times that Ailemen had asked about Estelle and wanted to do more business with him. During their conversation on January 8, 1993, Estelle indicated that he might want Ailemen to arrange to have heroin that Estelle would buy from Ailemen couriered to Chicago. Quarshie said he thought that could be arranged. Gov.'s Ex. E; Gov.'s Ex. J; Aff. at 27-28.
On January 8, 1993, the DEA issued the first of three subpoenas through which it acquired the billing statements for Ailemen's cellular phone. Aff. at 49. [18]
Even though he told Quarshie (over the phone) on January 8, 1993, that he would be back in the Bay Area by January 11th, and would contact Quarshie then, and even though Quarshie left some twenty messages for him, undercover agent Estelle made no effort to contact Quarshie—and had no contact with him—between January 8, 1993, and February 3, 1993. Gov.'s Ex. J; Aff. 28-29. During this period, Quarshie had contacted Aaron Mouton, the confidential informant, "almost every day" — primarily, it appears, in search of a source of cocaine for Ailemen. Ex. 29. Quarshie also contacted Mouton about eight times in February. Id.
In the latter part of January, Mouton met Ailemen face to face on two occasions. On one of these occasions Ailemen was "in the presence of his/her [sic] spouse." Ex. 29. On the other occasion, January 21, 1993, Mouton met with Ailemen and Quarshie at the latter's house. Ailemen told Mouton that he wanted to obtain two kilograms of cocaine from Estelle—and that he was willing to trade heroin for that amount of cocaine. Ailemen "seemed to be desperate to obtain the cocaine" and indicated that if he could not get it from Estelle he would get it "from his people in Los Angeles." Ex. 53. Ailemen also tried to use Mouton to respond to Estelle's request (made initially on January 8th through Quarshie) for help couriering heroin to Chicago. He told Mouton that he could arrange to have the heroin couriered to Chicago for Estelle and that he could have it delivered there within six hours. He also gave Mouton some information about how he packaged the heroin (for couriering) to conceal its odor. Id.
In late January of 1993 the investigative team took steps to install a hidden video camera in the hallway outside Ailemen's apartment and to secure a mail cover from the Postal Service. The application for the mail cover was submitted on January 28th, but took almost a month to process—so gathering information through the mail cover did not commence until about February 22, 1993. Aff. at 54-56; TR 4:808. In sharp contrast, the camera outside Mr. Ailemen's apartment appears to have been installed on the day Chief Magistrate Judge Langford signed the *1253 authorization order (January 25, 1993). Aff. at 53; Gov.'s Ex. Y. Arrangements already had been made through Nordahl Washington and John Shahoian, the property managers, for the investigators to use a "trash/broom closet" on Ailemen's floor of the building to support this surveillance. TR 6:1183, 1187-89. Sometime in February the agents replaced the "regular video camera" that they initially installed with a "tape delay" model. Officer Gutierrez was required to go to the building frequently to replace the tape. TR 6:1187-90; Gov.'s Ex. Y. [19] Neither video camera produced a clear picture—so it was difficult for the agents to identify the people who appeared on the footage. TR 6:1189-90.
On February 3, 1993, the agents re-activated the undercover part of their investigation when Carl Estelle finally returned one of Quarshie's numerous calls. Gov.'s Ex. F; Aff. at 28. After a brief phone conversation, Estelle went to Quarshie's house, where the two men had an extended interchange. Estelle said that he had not been able to obtain the cocaine that Ailemen wanted and that he did not want to play middle-man between Pius and the Colombians from Miami (now allegedly the most likely source of cocaine)— so he would agree to arrange a meeting between Ailemen and the Colombians, then bow out of the action. Then Estelle expressed an interest in buying 100 grams of heroin from Ailemen and having Ailemen arrange to have one of his couriers get the heroin to Chicago for him. Quarshie indicated that Ailemen appeared to feel that he could work with Estelle and that Ailemen would be willing to arrange for the courier. Gov.'s F. Quarshie also told Estelle that Ailemen was "so ready for you," had come down to Quarshie's house asking for Estelle, and that "he was really waiting for you...." Id. Estelle said he would want to meet the woman who would serve as the courier and Quarshie assured him that Ailemen would be agreeable to that.
The next day, February 4, 1993, Quarshie advised Estelle, over the phone, that the price for the 100 grams of heroin that Estelle wanted to buy from Ailemen would be $21,000. Aff. at 31.
The next conversation between Estelle and Quarshie was on February 8, 1993. Estelle asked if Quarshie had a heroin sample or if Ailemen was available to meet that night. Quarshie said that Ailemen was busy with other matters, but that "he really wants to see you" and that maybe they could arrange for a meeting the next day. Gov.'s G.
On February 9th, Estelle met Quarshie and Ailemen at Quarshie's house. Estelle told Ailemen that the Colombians from Miami were interested in trading cocaine for heroin and might be willing to meet with Ailemen in Monterey or in the Bay Area, but Ailemen said he did not want to meet with anyone from Miami because the likelihood of government surveillance was too great. Later in the conversation Ailemen told Estelle that Ailemen's heroin was located in New York and suggested that "if the Colombians are serious, that it's possible that we could meet out there." Gov.'s T. Estelle and Ailemen also discussed the possibility of buying cocaine from Tijuana—and Ailemen suggested that he and Estelle pool some money and send some of Ailemen's female couriers to Tijuana to buy the cocaine. Ailemen also explained how he used white female couriers because the authorities are not suspicious of them. Id. Estelle asked Ailemen for the price of 100 grams—and Ailemen asked Estelle why he wasn't buying in larger quantities. Id.
Earlier on February 9th officer Gutierrez had gone to Ailemen's apartment building to change the video tape. While in the building, he spoke with Nordahl Washington, who informed him that Ailemen had had a lot of visitors the preceding Friday and Saturday evening, and that one of Ailemen's guests on Friday had been a white female in her twenties who drove a 1980's model Volkswagen *1254 with a license plate number that Washington gave officer Gutierrez. After returning to his office, officer Gutierrez learned through DMV records that the vehicle that Washington had identified was registered to Tina Louise Tauer. Gov.'s Y. Tina Tauer had been identified by the DEA during the 1989 investigation as a likely criminal associate of Ailemen's—and the DEA's NADDIS [20] file on her included this entry from April of 1990: "Allegedly involved heroin trafficking with Tiffany Valentine for Pius Ailemen org." Ex. 86; Ex. 48.
On February 11, 1993, Estelle went to Quarshie's house, where he purchased the 100 grams of heroin (for $21,000) directly from Ailemen. Gov.'s U; Aff. at 37-38. During the accompanying conversation, Ailemen told Estelle that the heroin had arrived at about the same time as a hijacked plane and that all the attention was on the hijacked plane. He also told Estelle that the heroin had arrived in the Bay Area from New York at about three or four o'clock on the afternoon of February 11th. Gov.'s U; Aff. at 38. Ailemen further told Estelle that if Estelle's people in Miami wanted heroin, Ailemen could get it there. In addition, he indicated that at that time he "had six to eight kilos of heroin, and that he wanted to get a warehouse to keep the dope in one day." Id. Toward the end of the conversation Estelle expressed an interest in getting cocaine from the suppliers in Tijuana; Ailemen said that he could easily send "his girls to Tijuana to pick up the cocaine." Id. Finally, Estelle told Ailemen that in the upcoming week he (Estelle) would like to meet with Ailemen and the "girl" who would courier the heroin Estelle had just bought to Chicago. [21] Ailemen indicated that all he needed was a halfday notice. Id. ; Aff. at 38-39.
The next contact between undercover agent Estelle and the defendants occurred on February 16, 1993, when Estelle called Quarshie to tell him that Estelle wanted to courier the 100 grams of heroin to Chicago that Friday, February 19th. Gov.'s H. After a brief conversation, Quarshie called Ailemen, then paged Estelle. When Estelle returned the call, Quarshie, without any prompting or encouragement from Estelle, gave Estelle Ailemen's phone number (the cellular phone) and asked Estelle to call Ailemen. Quarshie told Estelle that Ailemen was expecting Estelle's call. Id. Estelle then called Ailemen. In addition to confirming that Estelle wanted to courier the 100 grams of heroin to Chicago on the 19th, Ailemen asked Estelle if he had been able to locate the cocaine that Ailemen wanted. When Estelle said no, Ailemen indicated that he would travel to Los Angeles on the 17th of February, the next day, to get what he needed there. Then Ailemen indicated that because he had to pay someone right away he wanted to sell Estelle (or his people) another 100 grams of heroin. Ailemen also indicated that if Estelle's people would arrange for payment to Ailemen's courier in Chicago (that Friday, after she transported Estelle's 100 grams), Ailemen would charge only $16,500 for the second hundred grams (instead of the $21,000 that Estelle had paid on February 11th). Id. Estelle said he needed to make a call to check with his people and that he would get right back to Ailemen.
Less than ten minutes later, Estelle called Ailemen again. He told Ailemen that his people did not want to purchase more heroin at that juncture. Instead, they wanted to "check ... out" the heroin Estelle had recently bought from Ailemen. Ailemen indicated again that he was going to Los Angeles the next day—but assured Estelle that he would bring the courier for the Chicago trip to Quarshie's house early Friday morning so Estelle could meet her and so they could finalize the details for transporting the heroin. Id.
On Thursday, the 18th of February, Estelle called Quarshie (twice) to confirm arrangements for transporting the heroin to *1255 Chicago the next day. During one of these conversations, Estelle indicated that after the trip to Chicago he would be out of town for a while, but promised that he would have a bottle of liquor sent to Quarshie's house so that Quarshie could celebrate the arrival of his wife (who was joining him from Africa). Gov.'s H.
On Friday, February 19, 1992, at about 5:30 a.m., Estelle rode in a cab (driven by another undercover agent) to Quarshie's house. Gov.'s V; Ex. 17, at 23. A few minutes after he arrived, Quarshie, Ailemen, and a white female courier, Kellee Cooper, [22] arrived at Quarshie's house. Estelle gave the purported heroin (the investigators had substituted a look-alike substance for the real heroin—so what was transported to Chicago was in fact not heroin) to Ailemen, who gave it to Cooper, who put it inside the front part of her pants. As Ailemen put Estelle and Cooper in the cab for the ride to the airport, he again urged Estelle to buy more heroin. Gov.'s V; Aff. at 40.
The cab, still driven by the undercover officer, took Estelle and Cooper to the airport, where they purchased tickets to Chicago. [23] During the flight, Estelle sat next to Cooper and told her that they would be met in Chicago by the female courier who would transport the heroin to Miami. Estelle indicated that he had not moved drugs in this way before, so his courier would ask Cooper for instructions. Cooper told Estelle that "lately she has been working with new girls (couriers) who were very calm." Gov.'s V. She also told Estelle that she had been working with Ailemen for a long time, that she had transported both drugs and money for him, and that she had been to many cities, including London. Id.
Once in Chicago, Estelle and Cooper went to the O'Hare Marriott Hotel, where they met undercover DEA agent Sue Mitchell (working out of the Chicago office)—who was posing as the courier Estelle had hired to transport the heroin from Chicago to Miami. Mitchell took Estelle and Cooper to a room she had rented in the hotel—a room in which the DEA had installed a video (and audio) camera. TR 3:546; Ex. 17 at 27. On tape, Cooper gave Mitchell and Estelle detailed instructions about how to smuggle drugs and how to act if stopped by law enforcement agents. She emphasized to Mitchell the importance of keeping the narcotics on her person—of never putting the drugs she was smuggling in her purse or "in anything that would be away from her." Gov.'s V; Aff. at 43; TR 3:546-48.
Estelle paid Cooper $1,000 for her work as a courier and gave her money to buy a return ticket. Gov.'s V. At Estelle's suggestion, Cooper called Ailemen from the hotel room. After telling Ailemen that nothing had gone wrong, she put Estelle on the phone. Ailemen again urged Estelle to buy more heroin, and again said he could arrange to have it couriered to Chicago or Miami. Estelle assured Ailemen that he (Estelle) would call Quarshie in a few days. Gov.'s Ex. V; Aff. 43-44. There is no evidence that Estelle made that promised call—in fact, he apparently had no contact with Quarshie for about a month. Gov.'s W.
Despite Ailemen's obvious eagerness to engage in additional transactions with Estelle, the willingness with which he and Cooper had explained how they smuggled drugs and cash, and Ailemen's apparent trust of Estelle, the undercover agent made no effort after February 19, 1992, to buy drugs from Ailemen, to sell drugs to him, to trade drugs with him (cocaine for heroin), [24] to "joint venture" *1256 a purchase from Tijuana, to meet Ailemen in New York, or to get him together with any purported buyers (from Miami, Chicago, Los Angeles or anywhere else). Agent Silano testified in the hearing before me that his supervisor at the time, Larry Holifield, refused, after the trip to Chicago, to permit the investigative team to spend more money in drug transactions with Ailemen. TR 5:1002-1004; TR 5:992.
On February 23, 1993, the core members of the investigative team, agents Silano and de Freitas, as well as officers John Gutierrez and Carl Estelle, [25] met to discuss the overall status of the investigation. They "discussed and exchanged information, surveillances for the next few weeks, and future plans. [They] then observed the video recording regarding the courier transport to Chicago, once in the hotel room." Gov.'s Y (Gutierrez' report dated 23 Feb. 93). I find, based on the major turn the investigation took after this meeting, as described below, as well as Agent Silano's admission that he began drafting the affidavit shortly after the Chicago trip, [26] that it was at or shortly after [27] this meeting that Agent Silano decided to seek authorization for a wiretap and decided to shift the center of the investigation away from undercover and traditional field work and toward interception of Ailemen's telephone conversations.
On February 24, 1993, the day after the meeting described in the previous paragraph, the investigative team secured authorization from Chief Magistrate Judge Langford to install a pen register on Ailemen's cellular phone number. Aff. at 45. [28]
During a surveillance on February 26, 1993, agents saw the BMW that was registered to Loreli Washington parked in front of Ailemen's apartment building. They also saw Ailemen and "his associate" (later identified as Nathaniel Iheukwu) [29] using a telescope from Ailemen's apartment to scout the *1257 area around the building before they went downstairs and drove together in the BMW (using evasive, counter-surveillance driving techniques) to a check cashing business on Webster and Broadway in Oakland. Ex. 34; Gov.'s Y. Later in the day Gutierrez spoke with Nordahl Washington, who gave him information about movement of furniture in and out of Ailemen's apartment and about "The Packaging Store" from which the furniture had come. Gov.'s Y.
The investigative team made its last effort to surveil Ailemen on March 3, 1993. Agents again followed him from his apartment; again he rode in the BMW registered to Loreli Washington, and again his companion appeared to be Nathaniel Iheukwu. During the first part of the surveillance the agents saw Ailemen and Iheukwu carry "large canvas bags" to the BMW and drive to an address in downtown Oakland. Then Ailemen and Iheukwu drove back to Ailemen's building. After a brief period there, they drove to San Francisco, where they met a young, attractive, light complected black female [30] and went into a restaurant. The driver of the BMW again had used counter-surveillance driving techniques—but they were unsuccessful, as the law enforcement team was able to keep track of Ailemen and his companion at all times. The surveillance was terminated, after less than two hours, when Ailemen and his two associates went into the restaurant. Ex. 47; Gov.'s Ex. Y.
On March 8, 1993, when he was at Ailemen's apartment complex to change the video tape, Gutierrez saw Ailemen "and his associate" (again, apparently, Nathaniel Iheukwu) arrive in the BMW registered to Loreli Washington and enter the building. Gov.'s Y. When he visited the building on March 11, 1993, again to replace the video tape, Gutierrez was given information by Nordahl Washington about a white female associate of Ailemen's who had visited the building about a week earlier. Washington provided the year, make, model, color, and license plate number of the vehicle the woman had driven. Gov.'s Y. [31]
On March 18, 1993, as promised earlier, Estelle sent a bottle of Courvoisier to Quarshie so that he and his wife could celebrate her arrival from Africa. An undercover officer, Stephanie Lovett, posing as Estelle's girlfriend, made the delivery, by herself, to Quarshie's house. She was there less than five minutes. Six undercover officers surveilled this delivery—apparently for the purpose of assuring Lovett's safety. Gov.'s K and Gov.'s W (these exhibits are identical).
On March 23, 1993, while he was on the premises to change the video tape, Gutierrez saw Iheukwu drive the BMW registered to Loreli Washington out of the parking garage in Ailemen's apartment building. Gov.'s Y. [32]
The investigators abandoned efforts to record traffic into and out of Ailemen's apartment on video tape (through the camera in the hall) at the end of March of 1993. Gutierrez and Silano testified that the camera remained in use until June 11, 1993, when a private investigator that Ailemen had hired discovered it, [33] but the documentary record strongly supports an inference that no taping *1258 occurred and no tapes were changed after March 27, 1993. See, Exs. 84 and Gov.'s Y.
On April 8, 1993, Estelle and undercover agent Lovett, still posing as Estelle's girlfriend, went to a restaurant for a social dinner with Quarshie and his wife. During the dinner, "Quarshie stated that `Pius' on numerous occasions had asked about UCA Estelle doing more `dope dealing' (business). `Pius' was very interested in continuing to do more business (dope dealing) due to the loss of some of his (`Pius') customers." Ex. 73, third page from the end; Aff. at 44-45.
On April 15, 1993, Assistant United States Attorney Nandor Vadas for the first time presented evidence arising out of this investigation to the grand jury. Agent Silano was the principal witness. Ex. 17. He described substantial parts of the investigation up to that point and gave the grand jurors detailed information from the principal undercover transactions. In addition, he stated that he was "presently preparing an affidavit to try to monitor Mr. Ailemen's cellular telephone. We're in the process of doing that now." Ex. 17 at 41. He also told the grand jurors about the size ($1,800 to $3,000 per month) of Ailemen's cellular phone bill and about his suspicion that Ailemen paid those bills with money orders that he obtained at the check cashing business to which he had been followed. Ex. 17 at 35, 43-44. He indicated, however, that he had not "gotten back yet" information about these negotiable instruments. Id.
During his testimony Agent Silano also disclosed that the investigators had underway substantial efforts to gather data about and to analyze Ailemen's use of his cellular phone and the phone lines in his apartment. The agent told the grand jury, for example, that examination of the data generated by the pen register on Ailemen's home phones showed "an extensive array just from states in New York, Washington D.C., Mexico, Houston, Texas, Sweden, Nigeria, Baltimore, Savannah, Georgia, Chicago, Newark, United Kingdom, including London, Canada, Brazil." Ex. 17 at 35. Significantly, he also suggested that he was feeling some frustration with the level of responsiveness he was receiving from other DEA offices. While his team had requested "our parent offices in different states and different countries to obtain subscribers of the phone calls that [Ailemen had] been making," [34] he reported that he was
"still awaiting some of these subscribers to come back. You know, they trickle in.
We have overseas offices in approximately 127 different countries in the world, DEA does, and a lot of time, through our telegraph system and individuals being on leave and stuff, these things don't come in as fast as we need them." Ex. 17 at 35 and 36.
Even without all the information they needed from other offices, however, the analysis of the phone records had revealed apparently important calls to identifiable numbers in New York and "the Maryland area" [35] at the time Ailemen was negotiating the sale of the 100 grams to Estelle (which also was the time Ailemen received a shipment of heroin through Kennedy Airport in New York). Ex. 17 at 19-20, 35-36.
In his testimony to the grand jury on April 15, 1993, Agent Silano also reported that (1) Ailemen had been followed to "a money laundering, excuse me, scratch that, a check cashing establishment, alleged money laundering place," [36] (2) that he had a United Mileage Plus account (which the agents had not yet researched), [37] (3) that he used Sun Trips travel agency (that the agents had not yet checked out), [38] (4) that Ailemen and his associates might be using "a financial group called the Benham Group" and the College Savings Bank of New Jersey, [39] (5) that Ailemen had been "receiving Express Mail packages extensively to his house," which "could *1259 be an array of things," but the OCDETF group hadn't yet "really explored that with Federal Express or UPS or these other carriers," [40] and that (6) "concerning couriers, we have—we have approximately seven couriers to date identified that we feel that are current from the last investigation that are possible hits." [41] Agent Silano further stated that an alert for all these couriers had been posted through the El Paso Intelligence Center (EPIC)—so that if any of them came into this country using their real name (or a known alias) they could be stopped and questioned or their movements tracked. Ex. 17 at 37.
Finally, Agent Silano told the grand jury that during one of their undercover meetings Ailemen had told agent Estelle that "around the end of January, he [Ailemen] had about a million dollars worth of heroin that was taken off by the police," [42] and that the investigative team had learned that on January 30th a Nigerian man named Francis Idialu, "who gives an Oakland address," was arrested at Kennedy airport in New York when he was caught trying to smuggle 1.65 pounds of heroin into this county. Ex. 17 at 37-38. The agent told the grand jurors that the investigative team was "in the process of interviewing this individual" [43] to see if he could provide information about Ailemen's trafficking organization generally or about events that had transpired in this case. Ex. 17 at 38.
On May 8, 1993, [44] Quarshie contacted confidential informant Aaron Mouton and told him that Ailemen wanted to do more business. Mouton allegedly construed this inquiry to reflect Ailemen's interest in buying cocaine from Mouton. In a debriefing two days later, agents Silano and de Freitas told Mouton to tell Quarshie that Ailemen should contact Estelle. Gov.'s L.
On May 11, 1993, a representative of Cellular One contacted Agent Silano to inform him that on that day Ailemen had paid his $2,000 phone bill in cash—and had taken the money out of a bag that appeared to contain some $8,000 in additional cash. Gov.'s M.
During the week of May 25, 1993, Agent Silano asked Aaron Mouton to contact Quarshie in order to learn which "dialects" Ailemen used in his drug trafficking. Gov.'s Ex. N. Mouton contacted Quarshie, who told him that he and Ailemen spoke in "pigeon English" in order to conceal the nature of their conversations from law enforcement and from other drug traffickers. Id. Silano wanted this information so he could arrange to have the appropriate interpreter(s) available during the wiretap. TR 4:838-39; TR 5:955-56.
On May 26, 1993, a representative of Cellular One contacted the investigative team to report that Ailemen had complained to a customer service representative that he was experiencing a 1-3 second delay in service and that he thought his phone was being monitored. Aff. at 47. On May 27, 1993, in response to this information, the agents temporarily "turned off" the pen register on Ailemen's cell phone. Id.
On June 3, 1993, agents Silano and Gervacio, accompanied by AUSA Nandor Vadas, traveled to New York to interview Francis Idialu in the presence of his attorney. During the interview Mr. Idialu told the investigators that he had not been in the Bay Area since 1989, that he had resided in Brooklyn for several years, and that he no longer had "any contacts and/or associates in the Oakland, California Bay Area." Ex. 81, report dated 6/17/93. He also told the investigators that on two occasions, both after he had left the Bay Area, he had attempted to smuggle heroin into the United States. On the earlier occasion, he had ingested balloons; on January 30, 1993, he had transported the heroin *1260 in his suitcase. Nothing he said during the interview even remotely suggested a connection with Pius Ailemen. Id. ; Ex. 42; TR 4: 840-51.
On June 11, 1993, Nordahl Washington contacted officer Gutierrez to alert him to the fact that a few days earlier Ailemen had told Washington that he knew his phone was tapped, that he knew he was being watched, and that he had hired a private investigator who had discovered the camera hidden in the "exit" sign in the hallway near the entrance to his apartment. That day Gutierrez examined the monitor and video recorder in the broom closet and found that nothing had been disturbed there. Gov.'s Y, second to last page.
On June 16, 1993, Gutierrez began making arrangements with the manager of an inn near Ailemen's apartment building to secure rooms from which the wiretap operation could be logistically supported and monitored. Gutierrez also learned on this date from Nordahl Washington that Ailemen had continued to press for information about the camera and about whether the government had had a warrant to install it. Gov.'s Y, last page.
Sometime in the first half of June of 1993 Agent Silano submitted what was both the first and the final draft of the affidavit to AUSA Nandor Vadas for his review. Up to that point, Agent Silano had been assisted in drafting the affidavit only by a legal technician, who helped add some "boilerplate" passages that were routinely used in affidavits of this kind. Agent Silano had not submitted rough drafts of any portions of the affidavit to Mr. Vadas earlier in the spring. When he finally had a chance to review Agent Silano's affidavit, Mr. Vadas made virtually no changes. In about mid-June he and Agent Silano sent the proposed wiretap affidavit to authorities at DOJ and DEA in Washington for review, feedback, and approval. Government counsel in Washington asked the local investigators to update the information in the affidavit that was based on analysis of Ailemen's use of the telephone, but required no other changes. TR 1:159-162; TR 2:250, 394, 412-418.
The only other documented activity in this case before the affidavit was submitted to Judge Jensen consisted of two short debriefings of Aaron Mouton, the confidential informant. One occurred on June 22, 1993, but the report from this meeting discloses nothing about what Mouton told the investigators. Gov.'s Q. [45] The last contact between Quarshie and Mouton before the affidavit was submitted occurred on July 19, 1993. On this occasion Quarshie asked Mouton for information about another person to whom Ailemen was considering selling heroin. [46] He also told Mouton that Ailemen "was sitting on a lot of shit," meaning that he had "a lot of heroin in supply." During the same conversation Quarshie also asked Mouton if Estelle was in town. Gov.'s R.
On July 29, 1993, Agent Silano presented his affidavit in support of the application for the wiretap to Judge Jensen. The district judge signed the proposed order authorizing the tap that same day. Ex. I-A.
VI.
THE CREDIBILITY OF THE AFFIANT AND ITS ROLE IN RESOLVING THE ISSUES PRESENTED BY DEFENDANTS' MOTION; ADDITIONAL FINDINGS OF FACT BASED ON TESTIMONIAL CREDIBILITY
One of the most sensitive and painful parts of the task I have been assigned is to make determinations about the credibility of Special Agent Robert Silano, whose affidavit is the target of the challenge in the defendants' motion. I would prefer, personally, not to address this matter. But the legal standard *1261 that I must apply leaves me no choice. The law commands me to determine whether there were material misstatements in or omissions from Agent Silano's affidavit and, if there were, to decide whether they were made "knowingly and intentionally, or with reckless disregard for the truth." Franks v. Delaware, 438 U.S. 154, 155-56 , 98 S.Ct. 2674, 2676 , 57 L.Ed.2d 667 (1978).
Before turning to other matters related to this inquiry, I feel constrained

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1459322. Public record. Not legal advice.