# United States v. Orozco

> District Court, S.D. California · March 28, 1986 · 630 F. Supp. 1418

URL: https://www.frixlaw.com/law-library/cases/2311913

## Case

- **Full name:** UNITED STATES of America, Plaintiff, v. Jose Omar OROZCO, Et Al., Defendants
- **Court:** District Court, S.D. California
- **Decided:** March 28, 1986
- **Citations:** 630 F. Supp. 1418
- **Precedential status:** Published
- **Opinion:** Opinion by Irving
- **Judges:** Irving
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2311913

## How later opinions describe it (automated extraction)

- noting that Congress had not (at that time) attempted to modify section 2515’s suppression requirement pursuant to Leon, the court stated that there was no “congressional indication that the statutory suppression remedy should be limited by the good faith exception” and that i…

## Opinion text

MEMORANDUM DECISION AND ORDER
IRVING, District Judge.
Defendants’ numerous motions to suppress evidence derived from electronic surveillance came on for hearing November 6 and 7, 1985 before the Honorable J. Lawrence Irving. Counsel appearances are listed in the official court minutes. Given the complexity of the case and the breadth of the issues raised, the court elected to take the motions under submission and set forth in writing the bases for each of its rulings.
Having considered the pleadings, oral argument of counsel and material submitted
in camera,
the court issues the following memorandum decision.
BACKGROUND
These are a series of motions by various defendants named in a 270-count, 402 page indictment filed March 21, 1985, charging them and others with conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841 (a)(1) and 846, possession of cocaine with intent to distribute in •violation of 21 U.S.C. § 841 (a)(1), aiding and abetting in violation of 18 U.S.C. § 2 , conspiracy to collect extensions of credit by extortionate means in violation of 18 U.S.C. §§ 371 and 894, unlawful use of communication facilities in violation of 21 U.S.C. § 843 (b), interstate and foreign travel in aid of racketeering in violation of 18 U.S.C. § 1952 (a)(2), distribution of cocaine to a person under 21 years of age in violation of 21 U.S.C. §§ 845 and 841(a)(1) and continuing criminal enterprise in violation of 21 U.S.C. § 848 . The charges center about an alleged large scale cocaine distribution organization headed by defendants Jose Omar Orozco, Augustin Fernando Maurtua and Jose Antonio Ledgard. The organization allegedly operates in San Diego and Los Angeles counties in California, Ket
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chum, Idaho and Miami, Florida. The indictment charges 98 defendants with conspiracy to possess cocaine with intent to distribute, and lists 517 overt acts occurring from December, 1983 through March 18, 1985 in support of the charge.
Evidence in this case derives from interceptions of defendants’ wire and oral communications. Eleven court orders issued over a one-year period commencing February 21, 1984 authorized the interceptions. Defendants challenge the legality of the orders authorizing the interceptions, the sufficiency of the applications for the orders, and the procedures the government followed once interception had begun. To facilitate quick reference and to avoid confusion, the court will refer to each application and order by letter designation. The following lists the applications and orders challenged by defendants:
Application and Order Date Issuing Judge Phone and/or location Intercepted_
A 2/21/84 Enright Phone # (619)481-2673 (subscribed to by E. Kulbusauskas) and residence located at 13750 Ruette Le Parc, Apt. D, Del Mar, CA
B 4/10/84 Enright Phone # (619)756-2807 (subscribed to by F. Jackson) and residence located at 804 Val Sereno, Encinitas, CA
C 6/6/84 Thompson Phone #s (619)756-2807 and (619)756-2814 (subscribed to by F. Jackson) located at 804 Val Sereno, Encinitas, CA
Phone # (619)436-6769 (subscribed to by J. Kerr) located at 641 Melba Rd., Encinitas, CA
Phone # (619)481-8537 (subscribed to by B. Barnhill) located at 237 No. Granados Ave., Solana Beach, CA
D 7/23/84 Thompson Phone #s (619)756-2807 and (619)756-2814 (subscribed to by F. Jackson) located at 804 Val Sereno, Encinitas, CA
Phone # (619)436-6769 (subscribed to by J. Kerr) located at 641 Melba Rd., Encinitas, CA
Phone # (619)481-0359 (subscribed to by M. Sullivan) located at 399 Bellaire, Del Mar, CA
Phone #s (619)239-2350, (619)239-5842, (619)239-4737 and (619)239-4733 (subscribed to by Conceptual Artists) located at 808 Imperial Ave., San Diego, CA
E 9/5/84 Thompson Phone # (619)438-8234 (subscribed to by D. Ledgard) located at 6827 Luciérnaga Ct., Carlsbad, CA
Phone # (619)436-6769 (subscribed to by J. Kerr) located at 641 Melba Rd., Encinitas, CA
Phone # (619)481-0359 (subscribed to by M. Sullivan) located at 399 Bellaire, Del Mar, CA
Phone # (619)753-7941 (subscribed to by T. Pool) located at 1856 Wilstone Ave., Encinitas, CA
Phone #s (619)239-2350, (619)239-4733, (619)239-4737, (619)239-5835 and (619)239-6647 (subscribed to by Conceptual Artists) and business located at 808 Imperial Ave., San Diego, CA
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Application and Order Date Issuing Judge Phone and/or location Intercepted_
F 9/14/84 Thompson Phone # (619)226-1189 (subscribed to by T. Halley) located at 3374 Talbot, San Diego, CA
G 10/16/84 Thompson Phone # (619)438-8234 (subscribed to by D. Ledgard) located at 6827 Luciérnaga Ct., Carlsbad, CA
Phone # (619)481-0359 (subscribed to by M. Sullivan) located at 399 Bellaire, Del Mar, CA
Phone #s (619)239-4733, (619)239-2350, (619)239-4737, (619)239-5835 and (619)239-6647 (subscribed to by Conceptual Artists) and business located at 808 Imperial Ave., San Diego, CA
H 11/11/84 Thompson Phone # (619)438-8234 (subscribed to by D. Ledgard) located at 6827 Luciérnaga Ct., Carlsbad, CA
Phone # (619)755-2872 (subscribed to by C. Jones) located at 1522 Camino Del Mar, #643, Del Mar, CA
I 1/18/85 Ryan Phone # (208)726-7329 (subscribed to by G. Maurtua) located at 315 Sage Rd., Ketehum, Idaho
J 2/15/85 Thompson Phone # (619)438-8234 (subscribed to by D. Ledgard) and residence located at 6827 Luciérnaga Ct., Carlsbad, CA
Phone # (619)481-5218 (subscribed to by C. Jones) located at 1552 Camino Del Mar, Del Mar, CA
Phone # (619)438-3702 (subscribed to by D. Strauss) and residence located at 1935-C Estrella De Mar, Carlsbad, CA
K 2/15/85 Eaton Phone # (305)854-8762 (subscribed to by J. Ledgard) located at 2131 Secoffee St., Miami, FL
FACTS
For purposes of these motions it is not necessary to review the entire factual history of the case. The motions require only a review of the facts as they are set forth in the wiretap applications. These are summarized below:
Application A
Application A includes the affidavit of FBI Special Agent, Michael P. Smith. Agent Smith’s affidavit sets forth the genesis of the investigation in this case. The affidavit presents information obtained from two informants, Claude Phillips and Fred Robertson, Agent Smith’s own observations as an undercover agent, information derived from a pen register authorized by Judge Thompson on January 5, 1984, and the later involvement of Vicki Robertson in cocaine purchases from James Knight. The investigation began in December of 1983, when Claude Phillips and Fred Robertson first provided information to the Drug Enforcement Administration (hereinafter “DEA”) and Federal Bureau
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of Investigation (hereinafter “FBI”) about a drug smuggling group operating out of Tijuana, Baja California, Mexico and San Diego, California.
On December 5, 1983, Fred Robertson decided to cooperate with the FBI and began providing information to Special Agent Charles B. Walker. Robertson employed James Knight as a computer salesman. Shortly after Knight began his employment in December of 1982, he introduced Robertson to the recreational use of cocaine. Thereafter, Robertson began purchasing cocaine from Knight. After Robertson became Knight’s regular customer, Knight confided that he had been involved in the distribution of drugs for over 10 years and that he was part of an organization centered in Tijuana, Baja California and San Diego, California. Knight told Robertson that he had been arrested once in 1975 when narcotics were found in his car, but that he “beat the case” because his attorney successfully moved for suppression of the evidence recovered in the search. Knight advised Robertson that cocaine use was widespread in the computer industry and that his employment was a perfect cover for his narcotics activity. Based on the foregoing, the FBI checked the records of the San Diego County Sheriff’s Office. These records reflected that Knight was arrested in 1975 for possession of marijuana but that the case was dismissed due to an insufficient search warrant.
Robertson also said that in early 1983 Knight took him to Tijuana and introduced him to Jesus Sanchez Rodriguez, aka “Jessie”. Jessie operated out of an office in downtown Tijuana which fronted a shrimp exportation business. Knight told Robertson that Jessie was one of the principals in his drug smuggling organization. After the introductory visit with Jessie, Robertson began purchasing cocaine directly from him. Jessie provided him with a phone number in Tijuana which he could call to set up cocaine transactions. When Robertson phoned in an order to Jessie, Ricardo Beas would deliver it across the border in Chula Vista, where Robertson would be waiting. Over a six month period in 1983, Robertson purchased about $13,000 worth of cocaine from Jessie. Robertson also attended several meetings at Jessie’s office in Tijuana in which Knight and Jessie attempted to get Robertson to participate in the distribution of cocaine. Jessie told Robertson that he received cocaine directly from Peru via airplanes which landed in Mexico. Jessie said that his drug activities in Mexico were protected because he bribed Mexican government officials. Jessie also introduced Robertson to a person referred to as John Alessio, Jr. Knight told Robertson that Alessio, Jr. was the son of the former owner of the Caliente racetrack. Robertson’s impression was that Alessio Jr. controlled Jessie. Robertson was also introduced to Alesandro Rodriguez, also referred to as “Allie”. Robertson learned that Jessie rarely came into the United States because he believed that United States authorities were aware of his drug smuggling activities.
Knight introduced Robertson to Ed Kulbusauskas, describing him as being involved with Jessie in moving multi-kilos of cocaine every week. Knight told Robertson that when he locates a moneyed individual who is interested in purchasing cocaine, he serves as the middle man between Kulbusauskas and the purchaser. Knight also told Robertson that Kulbusauskas is very cautious and will only deal with him or another trusted member of the organization with whom he has dealt over the years. Knight explained that once he located a purchaser, he would call Kulbusauskas, who then arranged to have a kilo delivered to his home. Knight then took money to Kulbusauskas’ residence and picked up the cocaine for transportation to the customer.
,) Knight also told Robertson that Kulbusauskas uses several safehouses in which he stores up to 30 kilos of cocaine at any one time, warning Robertson that the main supply is never kept at Kulbusauskas’ residence.
Robertson advised Agent Walker that he has not seen either Jessie or Alessio, Jr. since July, 1983, but that Knight contin
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ually contacts him to do drug deals. Even though Knight no longer works for Robertson, he used Robertson’s business phone throughout 1983 to place calls to Kulbusauskas and to Jessie. During those phone calls Robertson would often hear references to “brown shrimp” and “white shrimp,” code words for Mexican heroin and cocaine, respectively.
Following his confession to the FBI, Robertson agreed to cooperate with the FBI and to introduce an undercover agent to Knight. Thus when Knight approached him to do a drug transaction on December 6, 1983, Robertson said that he knew someone in San Diego who had “lots of money” and who would be interested in buying a pound of cocaine. On December 6, 1983, Knight also told Robertson that Allie had Mexican brown heroin available for sale. Knight agreed to meet with Robertson and his “friend” on December 7, 1983. Robertson agreed to consensually record his telephone conversations and his face to face conversations with Knight, wearing a body-recorder to do the latter.
Later on December 7, 1983, Robertson spoke with Knight and told him that his friend was having trouble raising the money and that they would not be ready until the following day. During that conversation, Knight stated that Kulbusauskas was “sitting on a large supply” of cocaine and was holding a pound for Knight. “Brown shrimp” and “white shrimp” were also discussed. On December 8, 1983, Agent Smith, acting as Robertson’s cocaine-purchasing “friend,” spoke on the telephone with Robertson and Knight. Agent Smith recharacterized his inability to deal with Knight on the preceding day as the product of negotiations between him and another party for a more favorable deal. Agent Smith told Knight that he was ready to move some “brown stuff.” Knight advised Smith that “brown stuff” was not currently available because of the murder of someone in Mexico. They then discussed “white stuff,” including profit margins, quantity and quality. One half hour later, they had another telephone conversation and Agent Smith requested samples from Knight. During that phone conversation, Knight made reference to “oscars;” Agent Smith took that phrase to mean ounce quantities of cocaine. They then discussed the specifics of the transaction, and it was agreed that Robertson would act as Agent Smith’s representative. Later that day, drug-related conversations occurred between Robertson and Knight, and Knight and Allie (via telephone), which were consensually recorded by Robertson.
Also on December 8, Robertson and Knight drove to Kulbusauskas’ residence for a meeting. For safety reasons, Robertson did not wear a badge recorder. At the meeting, Kulbusauskas told them that he had received 30 kilos of cocaine two weeks earlier and that he still had some left to supply to customers. Kulbusauskas showed Robertson one kilo that he described as being “Grade B” quality, and quoted a price of $25,000. Kulbusauskas said that he did not want a new customer to get more than one pound on the first deal. Kulbusauskas also told them that when Knight had the $25,000 in his hand he should call him and they would follow the distribution arrangement they had developed. Knight and Robertson then traveled to Allie’s residence in Solana Beach, where they discussed the interruption in the Mexican heroin supply.
On December 9, 1983, Robertson spoke with Knight and told him that Smith was ready to deal and a meeting place was established in Carlsbad for 1:00 p.m. that day. That morning, Agent Smith rented a room at Andersen’s Pea Soup Hotel and concealed a tape recorder in the room. He also brought with him $132,000 in “show money” to use in negotiations.
At 1:15 p.m. Smith, Knight and Robertson met in Smith’s room at the hotel. At the beginning of their meeting, Knight said that “his people” were cautious and he wondered aloud whether Smith was an FBI or DEA agent. Agent Smith denied being an agent and parried with an inquiry as to whether Knight was an agent. Smith then agreed that he would buy 3 kilos of cocaine
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the following Monday and he agreed to buy an ounce at that time. The group then discussed the quality of the ounce. Knight agreed to retrieve an ounce for Smith. During the meeting, they also discussed Kulbusauskas’ connections, Allie and Jessie’s backgrounds, and the possibility of Smith’s future investment in loads of cocaine flown in from Peru. Agent Smith then gave Knight $1,700 for the ounce, which Knight said would cost $1,650. Knight said it would take him an hour to get the ounce since he would have to call Kulbusauskas who would then send someone out to get the cocaine. Knight and Robertson left the hotel and were followed by FBI Special Agent Jim Batley. Agent Batley observed Knight making a phone call from a pay phone. At 3:05 p.m., Knight returned to Smith’s room and told him that because he had been late in phoning Ed, the deal could not be consummated that day.
On December 10, 1983, Knight and Agent Smith met at the Ocean Terrace Bar of the Del Coronado Hotel. They then went to Smith’s undercover vehicle where he was given an ounce of cocaine. They agreed to meet again on December 12 to complete a deal for a pound of cocaine. On December 12, Robertson called Knight to postpone that meeting to December 13.
On December 13, Agent Smith met Knight at Denny’s Restaurant in Del Mar. At this meeting, Knight informed Smith that Kulbusauskas was working on another deal and that they would have to wait to consummate their deal. They then went to the Triton Restaurant and waited for two more hours. While at the Triton, Knight noticed two unknown males at a nearby table and told Smith that he thought they were cops. After Knight called Kulbusauskas and got the go-ahead, they left the restaurant and Knight noted that the two unknown men also left. He warned Smith to proceed with caution. They took separate cars and after a short while, Knight pulled over, got into Smith’s car and told him that he was certain that they were being followed by at least three cars. Knight again inquired if Smith was a cop. Smith suggested that they postpone the deal and Knight agreed that there was too much “heat” that day. Later, Knight went to Robertson’s house and described the day’s events, and told Robertson that he suspected Smith was a cop. Knight told Robertson that after he was certain he had lost the surveillance, he proceeded to Kulbusauskas’ house and relayed the events to Kulbusauskas. Kulbusauskas opined that the surveillance was a DEA operation. He told Knight that he had the ability to verify license plate and telephone numbers and requested Knight to provide him with Smith’s. Knight told Robertson that he was worried because his and Kulbusauskas’ fingerprints might be on the bag that contained the ounce sold to Smith.
On December 14, 1983, Agent Smith and Knight had a consensually recorded telephone conversation. Knight told Smith that he appeared too cool when they were being followed. Smith countered that he was “cool” because he hadn’t done anything wrong yet.
On December 20, 1983, Robertson received a call from Jessie who was trying to locate Knight. Jessie told Robertson that he was calling from San Francisco and he left a number where Knight could reach him. Robertson reported his compliance with Jessie’s request to Agent Smith.
On December 16, 1983, Claude Phillips provided the following information to FBI Special Agents Charles Walker and Ellen K. Rollings. Phillips told them that he was contacted on November 7, 1983 by Greg Scott Jacomella concerning his possible participation in a proposed cocaine deal. Phillips had known Jacomella for over 10 years and knew that Jacomella was a multipound cocaine dealer residing in San Diego. Jacomella told Phillips that “Jessie,” residing in Mexico, had a major distribution organization in the San Diego area for cocaine, heroin and marijuana. Jacomella related that Jessie uses a shrimp business in Mexico as a front for his cocaine dealings.
At the instruction of the DEA, Phillips arranged to travel to Mexico with Jacomel
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la to purchase 3 kilos of cocaine. On November 17, 1983, Phillips and Jacomella met with Jessie in Mexico. The parties consummated a deal and arrangements were made for Ricardo (later discovered to be Ricardo Beas) and Jacomella to transport the three kilos of cocaine to Ukiah, California, where Phillips would have to pay cash for the delivery. The FBI and DEA subsequently arrested Jacomella and Beas in Ukiah and seized the three kilos.
On December 20, 1983, Special Agent Bud Watkins interviewed Jacomella and Beas to determine whether they would be willing to cooperate. Jacomella told Watkins that he would under no circumstances cooperate because he feared for his life and the lives of his family members residing in San Diego. Beas also refused to cooperate out of fear for his life.
Agent Smith’s affidavit also discusses evidence corroborating the events related below. Smith describes FBI verification of relevant phone numbers, as well as information regarding the extent of Kulbusauskas’ trafficking provided to the FBI by a confidential informant in 1979. Agent Smith’s affidavit also notes that Edward Kulbusauskas’ fingerprint was positively identified on the envelope containing the ounce transferred to him on December 13 from James Knight.
On January 5, 1984, Judge Gordon Thompson ordered the installation of a pen register at Kulbusauskas’ Ruette Le Parc home. Agent Smith’s affidavit reviews the pen register information and notes that fifteen calls were made to the home of Greg Frazier. Smith’s affidavit calls attention to the fact that some of the previously discussed phone calls involving Knight were corroborated by the pen register information. Agent Smith also reviews Knight’s telephone toll records and notes that nineteen calls to Kulbusauskas’ residence were made on Knight’s telephone.
On February 3, 1984, Fred and Vicki Robertson told Agent Smith that Knight had proposed a cocaine transaction to them on the previous day. They were instructed to go along with the cocaine transaction; they agreed with Knight that on February 4, Vicki would follow Knight to the vicinity of Kulbusauskas’ home. Knight would then pick up the cocaine and give it to Vicki, who would return to her residence. Fred Robertson also told Agent Smith that earlier on the morning of February 3, Knight had called and requested his assistance in finding a landing strip for a load of marijuana and cocaine that was to be flown into the United States. On February 3, Agent Smith gave Vicki Robertson $550 to use to purchase cocaine from Knight.
On February 4, 1984, FBI agents surveyed the above-described transaction involving Vicki Robertson and Knight. They positively identified Knight. The agents monitored Vicki Robertson’s car, but felt that surveillance of Kulbusauskas’ residence might be detected. Once Vicki received the cocaine from Knight, she turned it over to FBI agents.
Agent Smith’s affidavit offers many reasons why normal investigative procedures will not work in this case and why electronic surveillance is necessary. First, Smith notes that with only the information existing to date,- the FBI does not have a prosecutable case against any of the targets. Smith iterates the fact that Jacomella and Beas will not cooperate with authorities. He asserts that even if they would cooperate, Jessie and Alessio, Jr.’s location in Mexico would make it difficult to prosecute them. In order to apprehend them, prior information regarding their anticipated entry into the United States is required, and that information could be obtained through electronic surveillance. Agent Smith opines that there is no direct evidence against Jessie, Allie, or John Alessio, Jr. In order to obtain direct evidence against the hierarchy of the conspiracy, Smith hypothesizes that the government would have to spend thousands of dollars, which it is not in the position to do, through Fred Robertson for the purchase of narcotics.
With respect to the investigation of Kulbusauskas’ trafficking activities, Agent Smith asserts that Knight and Kulbusauskas have become increasingly suspicious of
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him in his capacity as an undercover agent. Agent Smith highlights the fact that Kulbusauskas told Knight that he has the capacity to check out and confirm if someone is a cop. Furthermore, Agent Smith contends that conventional surveillance nearly compromised the investigation and endangered his life. Knight’s refusal to let him deal directly with Kulbusauskas is another reason why Agent Smith believes electronic surveillance is necessary.
Agent Smith discusses, at length, the inefficacy of other investigative means. He states that pen register and toll record information will not actually identify individuals making and receiving telephonic communications. Agent Smith asserts that search warrants would not recover sufficient evidence to prosecute; Smith presupposes that Kulbusauskas, Knight, Jessie and Allie would not maintain sufficient records showing the extent or identification of all the individuals involved in the conspiracy. Agent Smith notes that without concomitant recorded conversations of the conspirators, large amounts of currency, if seized, would prove worthless in securing a prosecution. Phillips and Robertson remain unaware of the full extent and scope of Knight’s, Kulbusaukas’, Jessie’s and Aide’s illegal drug activities. Agent Smith notes that interviews of targets or others and issuance of grand jury subpoenas would compromise the investigation and possibly cause destruction of evidence. Agent Smith also suggests that because Knight is not aware of the location, the only way to learn the location of Kulbusauskas’ stash house is through electronic surveillance. Agent Smith describes the procedure Kulbusauskas insists upon to place orders. On receipt of an order Kulbusauskas makes phone calls to other trusted persons who go to the stash house to pick up the drugs.
In Smith’s opinion, interception of oral communications, via microphone surveillance, is also necessary. He believes it is likely that Kulbusauskas arranges meetings other than by phone. Microphone interception would clarify and supplement the meaning of wire interceptions, which may be in code. Prior informant information also demonstrates that Kulbusauskas uses his residence for meetings in which cocaine and money are discussed and exchanged.
Finally, Agent Smith relies on the frequency of the targets’ cocaine transactions to justify his request for electronic surveillance. He notes that the sophistication and international scope of the conspiracy demonstrate that its members are career criminals. Agent Smith also relies on Knight’s representation that Kulbusauskas moves large amounts of cocaine, and estimates that Kulbusauskas must use several other individuals for the sale and distribution of his product. Agent Smith notes that physical surveillance limits investigators to observation of people entering Kulbusauskas’ home and may not identify other members of Kulbusauskas distribution hierarchy.
Application B
In support of Application B, the government submits the affidavit of Agent Michael P. Smith, the affiant from Application A. Affidavit B begins with a summary of communications intercepted pursuant to Order A. Agent Smith’s affidavit details drug-related conversations between Ed Kulbusauskas and Frank Jackson, between Ed Kulbusauskas and Jim Knight, and between Ed Kulbusauskas and Bernard Thompson. The following is a chronological summary of the calls reported in Smith’s affidavit.
On February 24, 1984, at 2:57 p.m. Ed Kulbusauskas called Frank Jackson and asked him if anything was “happening.” Jackson responded that something was happening and Kulbusauskas said that he would stop by and see Jackson a little later. Agent Smith characterizes this conversation as one in which Kulbusauskas was arranging a meeting at Jackson’s residence for the purpose of discussing and engaging in the sale of cocaine. Later that afternoon, Kulbusauskas received a call from an unknown male who asked if Kulbusauskas was still waiting. Kulbusauskas answered that he was just about to go and take care
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of “it” and would be ready in an hour or two. The unknown male said he would call back later. Smith characterizes this conversation as an inquiry as to whether Kulbusauskas had received his supply of cocaine. At 5:50 p.m. that afternoon, Kulbusauskas received a call from Bernard Thompson, who asked him if he “had anything in and if it was real nice.” Kulbusauskas answered that it was nice, and Thompson inquired if there was a “didge” on it. Kulbusauskas responded affirmatively and Thompson then asked him if the “didge” was a nice one. Thompson also told Kulbusauskas that he had some friends who wanted “some small things” and asked if Kulbusauskas had the time for Thompson to grab “a small piece.” Agent Smith characterizes these as drug related comments.
On February 25, 1984, FBI agents surveilled a drug transaction and calls involving that transaction were intercepted. At 11:33 a.m. Knight called Kulbusauskas and told him that he could get to his house in about an hour or an hour and fifteen minutes. At 12:05 p.m. FBI Special Agent Robert R. Leight observed a meeting between Vicki Robertson and James Knight in the parking lot at Del Monico’s Restaurant. Vicki Robertson later related the conversation between her and Knight to Agent Leight. Knight told her that in order to receive $1,000 worth of cocaine, she would have to get $1,100 from her friend. Knight told her that he wanted to make $100 on the deal. If he was given only $1,000, he said he would cut one gram of cocaine from what he received. Knight also informed her that she would have to wait in her car while he went in and got the cocaine from his source. Vicki Robertson then went to undercover Agent Leight, who gave her ten $100 dollar bills. She presumably gave this money to Jim Knight. At 12:46 p.m. that afternoon, Knight called Kulbusauskas and told him that he was across the street and that he would be “right over.”
At 1:55 p.m. Vicki Robertson and Knight returned from Kulbusauskas’ residence to Del Monico’s Restaurant. Knight remained in the car while Robertson went inside the restaurant to deliver to Agent Leight the plastic bag containing the cocaine which Knight had gotten from Kulbusauskas. Robertson then described to Leight the events which occurred at Kulbusauskas’ residence. Robertson said that Knight instructed her to remain in the car while he went inside the residence to get the cocaine. One half hour later, Knight returned to Robertson’s car with the cocaine and they immediately drove back to Del Monico’s Restaurant. While driving back, Knight told Robertson that the cocaine was 98% pure and that he could sell a pound of it for $29,000; he would net a profit of $6,000 since he could purchase it for $23,000. At 7:32 p.m. Knight called Kulbusauskas and told him that “it went real good.” At 9:12 p.m. Kulbusauskas called Frank Jackson and told Jackson that he had “nine” for him. Jackson told Kulbusauskas that he would pick it up the following day. Agent Smith characterizes this last interchange as an indication by Kulbusauskas that he had $900 for Jackson, which represents the amount Kulbusauskas owed Jackson for the cocaine provided to Knight earlier that day.
On February 28, 1984, at 1:52 p.m. Frank Jackson called Kulbusauskas. Kulbusauskas told Jackson that he had some “dose” for him. Jackson told Kulbusauskas to “come over to his place” before 4:00 p.m. At 3:07 p.m. Kulbusauskas called Jackson and told him that he was “going to come over.” Jackson told him that he would have to wait, explaining that he didn’t think he was going to leave that day because he had too much work to do. Jackson asked Kulbusauskas if he was going “to need anything” the next day, to which Kulbusauskas responded that he would need “it” Thursday. Agent Smith surmises Kulbusauskas’ reference to “needing something Thursday” results from the proposed sale of one pound of cocaine between Jim Knight and Agent Leight.
On March 1, 1984, at 8:15 p.m. Jackson called Kulbusauskas and told him that “it would be tomorrow.” Agent Smith inter
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preted this conversation to mean that Jackson would not be ready to do the pound deal until the following day. On March 2, 1984, at 5:09 p.m. Frank Jackson called Kulbusauskas and stated that he would be “right over.” On March 3, 1984, Frank Jackson called Kulbusauskas and told him that he needed to “pick up that thing.” Jackson inquired whether Kulbusauskas wanted to know how much he owed Jackson. Kulbusauskas said that he did and Jackson said he would check the figure. After giving a figure to him, Jackson told Kulbusauskas that he could come over if he “needed anything.” Kulbusauskas said that he would come over. Later that evening, Kulbusauskas received a call from Jim Knight in which they discussed the timing for the anticipated sale of one pound of cocaine.
On March 6, 1984, at 12:17 p.m., Bernard Thompson called Kulbusauskas. Kulbusauskas asked Thompson where the computer was. Thompson responded that he was picking it up then because he was unable to do so the previous day. Thompson assured Kulbusauskas that he would get the computer to him around 4:00 or 5:00 p.m. Two minutes later, Kulbusauskas called Jackson and told him that he had just spoken with the computer guy who would be at Kulbusauskas’ residence between 5:00 and 6:00 p.m.
On March 15, 1984, a second transaction involving Vicki Robertson and Agent Leight occurred. At 9:40 that morning, Kulbusauskas received a call from Jackson and told Jackson that the “big thing” was supposed to happen that day. At 11:00 a.m. Vicki Robertson arrived at Del Monico’s Restaurant where she met Agent Leight. Leight gave Robertson $27,000 to be used for the purchase of cocaine from Knight. At 11:24 a.m., Knight called Kulbusauskas and told him that he had the “papers” and would be there in one half hour. At 11:48 a.m. Jackson called Kulbusauskas. Kulbusauskas reported that everything was in order. Jackson asked “when?”; Kulbusauskas said “right now” and mentioned the number “448.” Jackson asked if that was what they wanted and Kulbusauskas responded that it was. Jackson asked if “they” were there and if Kulbusauskas had “the cash.” Jackson told Kulbusauskas that he could come to see him but that he would first have to get “it.” Jackson told Kulbusauskas that he would call him back to give him an address as to where they would meet. Two minutes later, Jackson called Kulbusauskas and told him to meet at his old house in one half hour. Kulbusauskas inquired what the “ticket” was. Jackson told him that he could have them for “47” and then reduced this price to “46.” Agent Smith opined that both these conversations established the amount of cocaine involved and the price per gram of cocaine.
Agents surveilled the transaction and observed that at 12:04 p.m. Knight left Kulbusauskas’ apartment. He then entered his vehicle in which Vicki Robertson was waiting, and proceeded to a shopping center a short distance away. Fifteen minutes later, Kulbusauskas entered his automobile and left his apartment complex. At 12:29 p.m. Kulbusauskas entered Frank Jackson’s former residence at 261 26th Street in Del Mar, California. Two minutes later, Kulbusauskas alone, left Jackson’s residence. Six minutes later, Kulbusauskas arrived at the shopping center and entered Knight’s automobile briefly. Kulbusauskas then exited the car and both he, Knight and Robertson left the shopping center. At 1:06 p.m., agents again observed Kulbusauskas entering Jackson’s former residence at 26th Street. Eight minutes later, Kulbusauskas and Jackson left. Forty five minutes later, Vicki Robertson arrived at Del Monico’s Restaurant and gave Agent Leight one pound of cocaine, which subsequent laboratory analysis revealed to be 93% pure. At 2:19 p.m. Knight called Kulbusauskas and told him that the deal went well. Knight also said that his customers were talking about doing another deal the following week.
Through the intercepted conversations, the FBI learned that Frank Jackson moved to a new residence. On March 16, 1984, Kulbusauskas called Jackson and told him
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that he had some things for him and would bring them to Jackson the following day. On March 17, Kulbusauskas called Jackson and inquired to see if he was going to be home because he wanted to drop something off and pick something up. Jackson said Kulbusauskas could “come by” in an hour and that he had just gotten something new. At approximately 8:32 p.m., FBI Agents Robert W. Addeo and William A. Perez observed Kulbusauskas entering Frank Jackson’s new residence at 804 Val Sereno Drive, Encinitas, California. Kulbusauskas left approximately one half hour later.
On March 19, 1984, Jim Knight called Kulbusauskas and discussed a potential deal for “tennis” for later in the week. The following day, at approximately 4:04 p.m., Kulbusauskas called Jackson and told him that his “big friend” had called and wanted to do something at the end of the week.
Agent Smith’s affidavit further noted that the FBI identified a latent fingerprint found on the envelope handed to Vicki Robertson on March 15 from James Knight, as belonging to Frank Jackson.
Agent Smith offers the following reasons in support of his conclusion that interception of wire and oral communications is necessary and that other investigative means will not be effective. With respect to the need to intercept oral communications in Jackson’s home, i.e. the need to place a microphone or “bug” within the home, Smith notes that the interceptions authorized by Order A demonstrate that Jackson uses his residence to conduct meetings during which cocaine and money are exchanged and discussed. Smith submits that physical surveillance of Jackson’s residence would not provide details of the meetings held there. Furthermore, he surmises that it is likely that Jackson arranges meetings by means other than the telephone. Finally, interception of oral communications is necessary to clarify the meaning of wire interceptions, which may be in code. Smith believes that the parties will speak more freely, and not in code, when they are not on the telephone. With respect to the need for interception of wire communications, Smith notes that other investigative techniques would be insufficient to make prosecutable cases against Jackson’s co-conspirators. Smith opines that further infiltration of an undercover agent seems unlikely. Knight is reluctant to meet Agent Leight, acting undercover, and there is no reasonable basis to believe that Knight would be willing to introduce Agent Leight to Kulbusauskas or to Jackson. Furthermore, there is no indication that Knight personally knows Jackson. Smith surmises that Kulbusauskas has access to multi-kilo quantities of cocaine and that therefore, Jackson must utilize at least several other individuals in the sale and distribution of multi-kilo quantities of cocaine since he is Kulbusauskas’ source. Even if physical surveillance is highly successful, it rarely leads to conclusive evidence. Smith advises that physical surveillance at Jackson’s residence is particularly difficult because there is very little vehicular traffic in Jackson’s neighborhood and because there are no suitable observation points from which the FBI can conduct undetected surveillance. Smith also remarks on the inefficacy of search warrants and interviews with suspects and grand jury subpoenas. He notes that interviews or subpoenas would definitely alert the persons under investigation and compromise the investigation. Similarly, Smith notes that execution of a search warrant would jeopardize the entire investigation. A search would not be likely to yield evidence enlightening the FBI as to the full scope of the criminal activities and the methods used by Jackson and Kulbusauskas because they do not maintain sufficient records.
Application C
Application C, requesting interception of wire communications from two telephone lines subscribed to by Frank Jackson, a phone subscribed to by John S. Kerr and a phone subscribed to by Barney Barnhill, includes an affidavit authored by FBI Special Agent Robert Leight. Agent Leight’s affidavit focuses primarily on information
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derived from phone calls intercepted pursuant to Order B. Because of the extensive number of calls described in the affidavit, only those calls relevant to probable cause and necessity findings will be discussed in this summary.
On April 11, 1984, at 11:42 a.m. John Kerr called Jackson and asked if Jackson had heard anything from “his people.” Jackson told Kerr that he had not and Kerr suggested that Jackson call these people because Kerr had a very good looking “product.” Jackson ensured that he would get in touch with his people.
On April 11,1984, at approximately 12:47 p.m. Jackson received a call from an individual known as John, last name unknown (hereinafter “LNU”). John told Jackson that he was with Bob Shine and “Red Dog” the previous evening. John said that Nino had not yet called him back. Jackson suggested that John should “get ahold of Nino because there’s something real, real pretty available.” Jackson stated that he was waiting for some more cash and told John that he did not know what the price on this is, but that it would be around “45” and that it’s the best he has ever seen. Later that day, Kulbusauskas called Jackson and asked what the price on “a thousand” would be. Jackson said that something new is happening and it’s “the prettiest he has seen for awhile,” but Jackson has to wait because something else is happening. Jackson said that he could not do “a thousand,” but that he could do “500” at a time. Kulbusauskas then told Jackson that that’s what they wanted — “500” at a time. Jackson also told Kulbusauskas that he “still has the stuff that they have right now and he can still get that” and that it would “probably be about 38, no 39.” Jackson said that “39 is as low as they could go and that was only giving them two cents a piece.” Jackson stated that “he was not going to do it unless he can make two grand on that.” Also on that day, within twenty minutes of each other, Jackson received two phone calls, one from John (LNU) and one from John Kerr. Both conversations in coded language referred to doing narcotics transactions the following day.
On April 12, 1984, eight conversations between Frank Jackson and others, were included in Agent Leight’s affidavit. Jackson spoke three times with John (LNU). The last of these conversations included a statement by Jackson to John that “it’s done.” John said in response he would “come right over for a little bit.” At 1:36 p.m. that day, John Kerr called Jackson and told him to bring “what he has and come on over.” In Agent Leight’s opinion, Kerr’s statement to Jackson was an instruction to bring him $10,000 owed for cocaine. At 4:41 p.m. Kerr called Jackson and asked him how everything went. Jackson responded positively. Kerr then asked Jackson if Sandra was at home. Jackson replied to Kerr that he didn’t know because he hadn’t called her yet. Kerr instructed Jackson to call Sandra to see if she was still at home. They agreed to meet later that evening at 10:00 p.m., and Jackson told Kerr that he needed to do another “500.” At 5:08 p.m., Jackson called Kerr’s phone number and spoke with Sandra Zeck. Jackson wanted to come and see her. Zeck responded that she would be leaving for work in 20 minutes. Jackson agreed to come within that time. At 10:04 p.m., Kerr called Jackson. They arranged a narcotics transaction for the next day which would involve “at least 280.” Kerr told Jackson that he needed to see Jackson that evening on the “other thing” which they had done that day. Jackson told Kerr that he had already taken care of it and that he had given it to Kerr’s “old lady,” Sandra. Jackson told Kerr that he had written it all down, put it in one of Jackson’s envelopes, dropped it all by to Sandra, and subtracted the 49 and gave her 13,600. One minute later, Jackson called Kulbusauskas, who advised Jackson that he had a conference that day with a friend concerning “the big one.” During the conversation, Jackson told Kulbusauskas that something new was happening and it looked good. When Kulbusauskas had a need for “one of those tomorrow in the afternoon,” Jackson asked if Kulbusauskas wanted the “new.” Kul
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busauskas responded that either one would do.
Agent Leight’s affidavit describes six calls on April 13, 1984. In one conversation at 4:07 p.m., an unknown male called Jackson and told him that he was waiting for a call concerning something “real nice and\new.” The unknown male said that was great because he could use something. Jackson told the man that he would have it in an hour or two. At 4:50 p.m. Kulbusauskas called Jackson to advise that he was on his way back from the airport and to check to see if everything went well. Jackson said that everything had gone well and that he was waiting right now. At 5:28 p.m. John Kerr called Frank Jackson. Jackson wanted to know if Kerr was going to come over to his house. Kerr told Jackson that Mike called and that Kerr had to see Mike first. Kerr stated that the reason he was calling was to let Jackson know that “Mike was the hangup.” At 7:02 p.m. Kulbusauskas called Jackson and told him that he was ready and was going to Jackson’s house. Jackson asked if Kulbusauskas had cash. Kulbusauskas said that he did and that he would be right over.
Agent Leight related five conversations from April 17, 1984. In one conversation at 12:02 p.m., Kerr and Jackson made arrangements to do “500” or “a thousand.” Kerr stated at that time that his mother was visiting with him and that he was going to be busy with her for a while. At 3:16 p.m., Jackson called a phone number that a later FBI investigation disclosed as registered to an R. Lee in Carlsbad, California. Jackson told this person (who he referred to as Bob) that he wanted him to “pay for some stuff” that he had previously received. Bob asked Jackson if there was “any new material around” and Jackson told him that there was “something real nice” but that Bob had to first clear up the previous deal. Bob told Jackson “it was moving real slow” so that he still had some left. Jackson then told Bob that he would not do anything further until Bob cleaned up the past deal because he was getting “too strung out.” Jackson also conversed twice with Kulbusauskas. Kulbusauskas told Jackson that he had received a cashier’s check from one of his customers and that he had to run it through his bank. Jackson said that Kulbusauskas would be “giving him 15” and Kulbusaukas said that Jackson would get “the 15” tomorrow. At 7:49 p.m., an unknown male called Jackson to report his suspicions that he had been followed that day. The unknown male stated that he wanted to meet Jackson and that he “had 7” for him. They agreed to meet at Noodles Restaurant. Jackson asked the man if he wanted him to take him to his house. The unknown man stated that he was too afraid to go to his car or to his house right now. Jackson assured the unknown male that he may be overreacting and that “the heat” doesn’t always act that way. They agreed to meet at 9:30 p.m. that evening.
Agent Leight’s affidavit describes eight conversations on April- 18, 1984. Two of those conversations involve Jackson and a man referred to as Nino (LNU). At 10:40 a.m. Nino called Jackson and stated that he needed “8” today and that he would need more on Saturday. Jackson told Nino to call back a little later. When Nino called back at 1:11 p.m., Jackson told him that it was now available. They agreed to meet at Jackson’s residence between 4:00 and 5:00 p.m. Jackson and Kerr also had a few conversations in which they attempted to set up an exchange of “500.” Kerr told Jackson that he would leave “it” with Sandra at Kerr’s house. Kerr also told Jackson that Sandra would be leaving the house at 4:00 p.m. to go to work. A short while later, Kerr told Jackson that Sandra would deliver “it” to Jackson at his home. At 6:02 p.m. that day, Jackson called a telephone number subscribed to by Barney Barnhill and left a message on the answering machine for Rick to call Jackson because Jackson needed to talk to him. Also on that day, Kulbusauskas called Jackson. Jackson told Kulbusauskas that he had gotten some stuff that day, but because he didn’t like it, he was going to send it back. Kulbusauskas told Jackson that he still had the guy’s cashier’s check. In response
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Jackson told Kulbusauskas that he didn’t need any cash until tomorrow.
On April 19, 1984 at 10:48 p.m., Jackson told Kerr that with respect to the “500” which Jackson had received from him on the previous day, his people “didn’t like it, it was too shake.” Jackson also stated that it didn’t look the same and it didn’t smell the same. Kerr told Jackson that “stuff like the previous load” would not be available until May. Kerr also assured that “there would be no problem,” and that Jackson could bring it back if he was dissatisfied. Agent Leight supplements this conversation, stating that it has been his experience that “shake” is a reference to cocaine that appears in powder rather than in rock form. At 10:57 a.m. on April 19, someone identified only as Neil called Jackson. Jackson told Neil that he had just spoken with the guy and that the stuff was definitely not the same as before. Neil agreed. Jackson then said that one of his guys went on a scouting trip and came up with another supplier who has a product which is “very pretty” and “kind.” The new stuff was “46,” which was “a tad expensive,” but it was looking like “a very nice product.” Neil told Jackson to “go ahead and grab some.” At 12:30 p.m. Jackson called Rick, believed to be Dudley Richards Whitney, and told him that Jackson had $8,000 and that he would have the rest of the money that evening. Jackson told Rick that he would “be right over.” At 4:08 p.m. Neil called Jackson. Jackson told Neil to come right over to his house and that he would “love this, it’s worth every nickel.”
Agent Leight describes a number of conversations intercepted on April 21, 1984. In a conversation between Jackson and Bob Anderson, Jackson told Bob that if David got there by 6:00 o’clock, he or Rodney Jackson (Frank Jackson’s son) would come over and get the money because Jackson really needed it. At 4:42 p.m. when Jackson called John, John told him that he and Nino would be coming over to Jackson’s house around 6:00 p.m. At 5:23 p.m. Jackson called Rick. Rick said that he was waiting and Jackson told Rick that “his guys were coming over at 6:00 p.m.” Rick said that he would get in touch with Jackson as soon as he talked to “his guy.” Sixteen minutes later Jackson called Rick to tell him to come to Jackson’s house. Rick said he could not because he and Becky had a dinner date at 6:00 p.m. Rick told Jackson that once Rick grabs “it,” Jackson could meet Rick and Becky wherever they were and pick “it” up. Jackson stated that he was worried about missing them but Rick assured him that he would call when he gets “it.”
On April 22, 1984, at 9:50 p.m. John Kerr called Frank Jackson. They discussed a meeting which Jackson was to have the following morning with “those guys.” Jackson told Kerr that his “other people” had something “real pretty” and Jackson was “going to do that.” Jackson also said that he was interested in seeing what Kerr had. Kerr told Jackson that his stuff was “38” and it was the same stuff they had around Christmas. Jackson said that the stuff they “got around Christmas was very nice” and asked if Kerr’s product “was chunky.” At 9:41 a.m. on April 23, 1984, Jackson received a call from an unknown male. They set up a sale of one kilo of cocaine for $44,000 in code language. Later that day two FBI agents observed two unknown white males arriving at Jackson’s residence at 804 Val Sereno. The two individuals were driving a 1961 silver over black Corvette. About 10 minutes later the agents observed the two men leaving the residence carrying a beach bag.
On April 25, 1984, Jackson received a number of calls from John (LNU). In the last conversation between them, John asked if Frank Jackson was “ready to go yet.” John told Jackson that he was waiting for “one more guy to call” and that as soon as he did, he would call Frank Jackson and be ready to go. Jackson then told John that he had “to put his guy off three different times that day.”
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On April 27,1984 at 8:04 p.m. Kulbusauskas called Jackson to ask if Jackson was “working this evening.” Jackson told Kulbusauskas that he needed “money to resupply” and that he wouldn’t have it until tomorrow. Jackson also told him that since Rodney’s mother was staying at Jackson’s residence until Monday, Jackson had to be careful and could not be working around her.
On April 29,1984, at approximately 12:02 p.m. John called Jackson and said he was phoning from Hawaii. John told him that “Red Dog was going to be needing 6 or 7 tomorrow.” Jackson told John that Red Dog had already called and ordered 9. John requested that Frank Jackson give Red Dog the same quality stuff that Jackson had given John. Sixteen minutes later, Jackson received a call from Red Dog. They discussed how much Red Dog’s man needed. Red Dog said that he liked “the stuff” that Jackson got them the last time. Jackson assured Red Dog that “the stuff” would be the same.
At 3:52 p.m. on April 30, 1984, Rick phoned Jackson. Rick advised that he had been attempting to call him on his other telephone number but that this line had been busy. Jackson said that he had also been trying to reach Rick for the last couple of days as well. Jackson told Rick that he needed “500 for tomorrow.” Rick said that would be no problem and that he would be ready. Jackson stated that he would be seeing Rick later that evening “to clear up that other.” Rick then told Jackson that Jackson could just go ahead and pick up what he needed for tomorrow and that way he wouldn’t have to make two trips.
Agent Leight’s affidavit describes five calls that occurred on May 1,1984. During one conversation, Jackson and Red Dog agreed to meet at the Brigantine Restaurant for lunch and Jackson told Red Dog to bring the $12,000. At 4:20 p.m. Jackson called telephone number 756-2807. An unknown female answered and Jackson asked to speak to Rick. Since Jackson was told that Rick was unavailable, he asked the woman to have Rick call him right away. At 5:09 p.m. Jackson called a phone number subscribed to by “Conceptual Artists” at 808 Imperial Avenue, San Diego. Jackson spoke to an individual believed to be Michael J. Sullivan and advised that he had not heard from his man. Mike said that he had paged his man and that his man should be calling soon. Mike inquired to see if Jackson would prefer to deal directly with him in the future. Jackson said he would and Mike told Jackson that he was getting something “set up down here at the office.” On days Jackson wishes to do something, Jackson could now deal directly with Mike to save time. Jackson told Mike that he had $13,500 out of a total of $16,000 that he owed. Jackson told Mike that “on one of ‘them’ he’s got it all written down what they both weighed.” Jackson stated that somebody “screwed up” because they did not weigh what they were supposed to weigh. Mike said he knew about the difference.
On May 3, 1984, John Kerr called Jackson’s residence and spoke with Jackson’s son, Rodney. Rodney told him that his father was out of town and had not yet returned. Kerr told Rodney that he himself had been out of town for over a week on a trip to the Virgin Islands. At 5:27 p.m. on May 3, 1984, Red Dog called Frank Jackson and advised him that a bartender at the Brigantine Restaurant named Mike O’Connor had an evelope containing money for Jackson. Jackson said that he would send his son Rod to get the envelope. Jackson also told Red Dog that he was getting ready “to reload” in a couple of days so that Red Dog should figure how much he needed. Seven minutes later Red Dog called Jackson again. They discussed the quality of cocaine available to Jackson. Once again, Jackson reaffirmed that he was going to “redo” on Saturday.
At 10:02 a.m. on May 5, 1984, Michael (believed to be Michael J. Sullivan) called
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Jackson and told him “I need to get some things today, so I need to get that balance from you.” Jackson said that he would attempt to get it and told Michael that he needed to resupply and said “I might need a big one.” Michael told Jackson that it would be possible to get a “big one that day.” Jackson stated that he had not known that Michael was back and that Jackson had been considering going another way on the “big one.” At 11:10 a.m. that morning Jackson called Bob Anderson and told him that he needed money to pay someone else.
At 12:07 p.m. on May 6, Jackson called John (LNU). John had just gotten back from vacation in Hawaii and while he was gone Red Dog did a “little deal” for him. They discussed the quality of “that stuff” and that it was funny looking. Jackson told John not to worry about it, that “we’ve got something else happening now.” Jackson wanted to know when Nino would be back. Jackson told John that when Nino returned they would do a “couple of big ones.” Jackson told John that he had heard that the prices were going “to go way back up.” Jackson did not believe this, but acknowledged “that’s all my people have been saying.” Jackson explained that “his people” said the price was going back up because “they had been losing so much down south.” Jackson told John, “the factories and stuff.”
Agent Leight’s affidavit describes six phone calls that occurred on May 7, 1984. In one, Kulbusauskas told Jackson that he had some money for him. In another John called Jackson and asked him if they could “do 5 tonight.” John also told Jackson that Nino would be back tomorrow and would need some. At 5:08 p.m. that date, Jackson called Rick’s residence. Becky answered the phone and advised Jackson that Rick was not there. Jackson left a message with Becky to have Rick call him right away. At 5:48 p.m. John (LNU) called Jackson and placed an order for “6.” John stated that he may come over to Jackson’s house around 8:00 p.m. to pick up his order. At 7:36 p.m., Michael (believed to be Michael J. Sullivan) called Jackson. Jackson asked where he’s been and indicated that he has been waiting for Michael to call. Michael explained that he had to go to Los Angeles that evening and would not be back until the following day. Michael told Jackson that he had a “great one” for him and that “it will be 35 to you.” Michael explained to Jackson that he was still doing “quick turn situations.” Jackson told Michael that “my people are back now from Europe, today, so it’s perfect timing.” In response Michael promised Jackson that he would save this “whole one” for him. Michael said that if Jackson could not wait, Michael could have it brought over to Jackson earlier. In reviewing this phone call, Agent Leight characterized the reference to a “great one” as a reference to a kilo of cocaine.
On May 7, 1984, at 8:09 p.m. John (LNU) called Jackson. They discussed a deal to be done the following day and the fact that John has a customer who “really needed some” that evening. At 11:00 a.m. on May 8, 1984, Bob Anderson called Frank Jackson and they discussed the time Anderson could come and pick up “the stuff.”
Agent Leight’s affidavit also analyzes information derived from a pen register placed on one of Frank Jackson’s residential phones. Agent Leight broke down the number of calls: Jackson utilized the phone twenty-two times to call the number subscribed to by Kulbusauskas, seven times to call the number subscribed to by Bob Lee, nine times to call the number subscribed to by John Kerr, six times to call the number subscribed to by John (Last Name Unknown), and thirteen times to call the number subscribed to by Barney Barnhill (believed to be used by Rick (Last Name Unknown)). The pen register also detected four phone calls to “Conceptual Artists” (believed to be utilized by Mike (LNU)). Agent Leight’s affidavit also states that a pen register was placed on the
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telephone subscribed to by Barney Barnhill and utilized by Rick (believed to be Dudley Richards Whitney). He noted that a second telephone at Jackson’s residence had been called four times from that number.
Agent Leight’s affidavit notes that the intercepted conversations have revealed that Frank Jackson is able to obtain cocaine from three distinct sources. Leight believes that Jackson functions as a source of supply to many cocaine dealers and these dealers have negotiated and purchased kilogram quantities of cocaine from Jackson. Agent Leight identifies these cocaine sources as 1) John Kerr; 2) Rick, believed to be Dudley Richards Whitney; and 3) Mike, believed to be Michael J. Sullivan. In Agent Leight’s opinion, continued interception of Jackson’s wire communications is the sole method by which to fully explore and document the identities of the individuals who are supplied cocaine by Frank Jackson, the identities of sources of cocaine Jackson may develop in the future, and the manner in which Jackson utilizes what are undoubtedly substantial and illegally derived profits. Agent Leight notes that apart from the telephone line that was wiretapped pursuant to Order B, Jackson uses a second residential telephone. Agent Leight states that it has now been established that Jackson uses this phone as well to place calls to and receive calls from co-conspirators.
Agent Leight portrays Kerr as one of the individuals supplying cocaine to Jackson. The conversations between Kerr and Jackson establish that Kerr supplies Jackson with kilogram quantities of cocaine. The interceptions have also revealed that Kerr receives cocaine he sells to Jackson from an unidentified individual. Although admissible evidence has been developed against John Kerr, Agent Leight suggests that interceptions over Jackson’s telephone have not yet identified other cocaine dealers supplied by Kerr nor have- they identified Kerr’s cocaine supplier. Therefore, Agent Leight opines that it is necessary to intercept wire communications on John Kerr’s telephone to reveal those identities, to document the volume of the cocaine business, and to discern the manner in which Kerr utilizes his illegally derived profits.
Agent Leight supplements the earlier description of phone calls between Rick, believed to be Dudley Richards Whitney, and Frank Jackson, and identifies Rick as one of Frank Jackson’s suppliers. The conversations between Rick and Jackson have established that Rick has supplied Jackson with kilogram quantities of cocaine and that Rick receives the cocaine he sells to Jackson from an unidentified individual. Agent Leight notes that admissible evidence has been developed against Rick in the interceptions pursuant to Order B, but that those interceptions have not identified other cocaine dealers supplied by Rick nor have they identified Rick’s cocaine source. Conventional investigative techniques have succeeded in establishing probable cause for electronic surveillance of Rick’s phone. Such techniques, however, would not be successful in identifying Rick’s source of supply or the identities of his other customers. Therefore, Agent Leight opines that electronic surveillance of Rick’s phone is necessary to identify the people to whom Rick supplies cocaine, Rick’s cocaine source, the volume of his cocaine business, and the manner in which Rick utilizes his illegally derived profits.
Agent Leight further surmises that physical surveillances have not yet provided the identities of all the criminal associates of Jackson, Kerr, and Rick. Agent Leight then postulates, as do the affiants in the other affidavits, that physical surveillance, even if highly successful, rarely succeeds in gathering conclusive evidence of criminal activities. One of the shortcomings of physical surveillance as an investigative technique is that while meetings between alleged conspirators can be confirmed, physical surveillance does not provide investigators the details as to the pur
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pose of those meetings. Agent Leight informs that the physical surveillance of Jackson’s residence is particularly difficult due to the fact that there is very little vehicular traffic in Jackson’s neighborhood. To date, surveillance of Jackson’s home from a fixed surveillance site nearby has not been productive in identifying Jackson's co-conspirators. Agent Leight states that the execution of search warrants would not provide sufficient evidence to determine the full scope of the criminal activities and methods used by Jackson, Kulbusauskas, Rodney Jackson, John Kerr, Sandra Zeck, Bob Anderson, Bob (LNU), Rick (believed to be Dudley Richards Whitney), Mike (believed to be Michael J. Sullivan), Nino (LNU), John (LNU), Neil (LNU), and “Red Dog.” Agént Leight believes that these conspirators do not maintain sufficient records which would elucidate the scope of the conspiracy or identify all the individuals involved in the criminal enterprise. He notes that even if such documents were retrieved, without evidence of conversations between conspirators, these documents could prove to be worthless. Finally, he notes that execution of a search warrant would likely jeopardize the entire investigation and prosecution of many persons. Agent Leight feels that subpoenaing witnesses to testify before the grand jury would undermine the objectives of the investigation.
Application D
Application D is supported by the affidavit of FBI Special Agent Charles B. Walker. In order to establish probable cause, and a necessity for wiretaps of Frank Jackson, John Kerr, and Michael Sullivan’s business and residential phones, Walker relies primarily on information provided in communications intercepted pursuant to Order C. Walker highlights some of the phone calls intercepted pursuant to that order and presents some statistical information about the volume of the calls intercepted. Walker begins with a summary of information received through interceptions and de-
scribes what appears to be an intricate cocaine distribution hierarchy. Interceptions reveal that Jackson supplies large amounts of cocaine to numerous individuals located in the San Diego County area, including Kulbusauskas, Anderson, Lee, John Slater, Kevin Matuozzi, J.R. Rowles, Scott Susalla, Nino (LNU), Robert Lyman Newman, believed to be “Red Dog,” Wally (LNU), Ellie, believed to be Elizabeth Herley, Jim (LNU), and other individuals who have not yet been identified. They have also disclosed that Robert Lewis Shine serves as an employee for Frank Jackson and that Shine delivers cocaine and picks up money for Jackson’s operation. It is Walker’s opinion that John Kerr supplies large amounts of cocaine to numerous individuals in the San Diego County area, including John Brunner, Steve Vecco (sic), John Freeze, Steve (LNU), Judy (LNU), and Brad (LNU). Walker notes that Kerr resides with Sandra Zeck and that she knows about Kerr’s cocaine activities and participates in the operation as a carrier for him. Walker believes that both Jackson and Kerr are part of an organization headed by Michael J. Sullivan, the president and owner of a business known as “Conceptual Artists,” located at 808 Imperial Avenue, San Diego, California. Walker surmises that Sullivan is assisted by Timothy Halley and Thomas Pool. Walker notes that interceptions have revealed that Jackson purchases kilogram quantities of cocaine from Michael Sullivan and has a sophisticated operation which utilizes pagers and pay telephones in order to circumvent electronic surveillance. Walker refers to Agent Leight’s characterization, in Application C, of John Kerr as one of Jackson’s cocaine sources, distinct from the Sullivan source. Walker advises that subsequently intercepted conversations have more clearly defined Kerr’s role as that of a trusted associate of Michael J. Sullivan. Kerr assists Sullivan in moving multi-kilogram quantities of cocaine. Conversations intercepted pursuant to Order C demonstrate that Michael Sullivan’s supply of cocaine had been
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temporarily disrupted but that Sullivan anticipates a large shipment of the drug from an undisclosed source. In response to Sullivan’s disrupted service, Frank Jackson and John Kerr sought out other small dealers in order to placate the demands of their customers. Specifically, Walker notes that Jackson had reached out to Dudley Richards Whitney, aka “Rick,” who had provided Jackson with kilogram quantities of cocaine. Walker notes that Rick Whitney’s intercepted conversations disclosed that Whitney was a significant trafficker who has supplied Frank Jackson with cocaine when Michael Sullivan cannot. Jackson and Whitney have also discussed the fact that Whitney’s cocaine is inferior in quality and price to that of Jackson’s primary source, Michael Sullivan. However, Walker does not request the continued interception of Whitney’s phone because he believes that Whitney is not a part of a large organization but is merely an alternate source of cocaine for Frank Jackson.
Agent Walker also describes the FBI’s endeavors to positively identify individuals intercepted in wire communications. He notes the parties sometimes identify themselves in full over the wire so that their voices can subsequently be identified. In addition, the FBI identified several individuals by tracing subscriber information on some outgoing calls. The FBI's extensive physical surveillance of meetings which were set up over the intercepted wires is another method used to identify individuals. Agents photographed individuals and their vehicles at these meetings. Vehicle registrations and driver’s license photos were later compared to the surveillance photos to identify individuals at these meetings.
To establish probable cause for the interception of wire communications originating from the “Conceptual Artists” business, Agent Walker relies on the following information. Agent Walker includes the conversation on May 1, 1984, between Jackson and Michael J. Sullivan, previously described in this court’s summary of Order C, in which Sullivan and Jackson agree to deal directly with each other for future cocaine deals. Agent Walker emphasizes Sullivan’s reference to waiting for a man that he had contacted via a pager. Agent Walker also notes that on May 1 at about 1:15 p.m. FBI special agents observed Jackson at the Brigantine Restaurant in Solana Beach, California, meeting an unknown individual who wore a pager on his belt. Agents watched this person take a golf bag out of the trunk of his ear and give it to Jackson. Agents later traced the registration of this vehicle and discovered that it was registered to Thomas Pool of Leucadia, California. Photographs taken at this meeting were later compared to driver’s license photographs of Thomas Pool.
On May 3, 1984, FBI agents checked the records of the San Diego County Clerk which revealed that a fictitious business name statement was filed by “Conceptual Artists” and that the document listed Michael Sullivan as its president/owner. Agent Walker also relies on the previously described May 7 conversation between Jackson and Sullivan in which Sullivan represents that he has “a great one” for Jackson and that “it will be 35 to you.”
On May 16, 1984, FBI agents conducted a physical surveillance of “Conceptual Artists.” They observed Dave Zimmer entering the business and leaving a short time. later carrying what appeared to be a duffel bag. Agents noted that Zimmer was driving a 1979 Mercedes automobile registered to Michael J. Sullivan. Zimmer’s criminal record was checked by Special Agent Jack D. Blair and Blair discovered that Zimmer had been convicted in 1982 of the sale and possession of controlled substances.
At 2:30 p.m. on June 6, 1984, Michael Sullivan called Frank Jackson and discussed the fact that he had been out of town for awhile and that during his absence, Jackson has been dealing with Tom. Sullivan told Jackson that he will now take over from Tom and that Jackson should now deal directly with Sullivan. At 5:51
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p.m. that day, Tom, believed to be Tom Pool, called Jackson. Jackson told Tom that he had Tom “cleared up.” Jackson told Tom that he had spoken with Michael and that Jackson was going to talk to Michael again that evening to find out “what’s happening.” Jackson said that he could give “it” to Michael tonight. Tom said that he needed “to pick that up himself” and would do so the next day. At 7:41 p.m. Sullivan called Jackson to say that he was at the airport waiting for someone. Jackson told Sullivan that he needed to talk to Sullivan that evening about this “whole trip” and that it would be good for the both of them because Jackson was “working heavy.” Sullivan called again at 8:06 p.m. and told Jackson that he had a lot of stuff to take care of and that he needed to talk to Jackson. Sullivan wanted to know who was at Jackson’s house at that time and Jackson told Sullivan that Kevin Matuozzi, the bartender at Dini’s Restaurant, was there. Kevin worked for Jackson. Jackson said that his partner Bob Shine was also there. Sullivan said that he did not want to be meeting a lot of people and Jackson assured him that his visitors were not aware of the happenings between Jackson and Sullivan. Jackson agreed to make these people leave and gave Sullivan instructions on how to get to his home. At 8:39 p.m. FBI agents observed the same 1979 Mercedes driven by Zimmer on May 16, 1984 arrive at Jackson’s house, driven by an unknown male, accompanied by an unknown female. Agents submitted the license number of that automobile to the California Department of Motor Vehicles and were informed that it was registered to Michael J. Sullivan of Del Mar, California. At 9:03 p.m. Michael Sullivan placed a call over Jackson’s telephone to a number subscribed to by Donna Ledgard at 6827 Luciérnaga Court, Carlsbad, California. While dialing this number, Sullivan was overheard telling Jackson, “If you want to do one tonight I’ll fix you up.” After Sullivan completed dialing the number, he spoke with an unknown male who had a Spanish accent and arranged a meeting at a pizza place near a movie theatre in fifteen minutes. Surveilling agents followed Sullivan from Jackson’s house to the Wiegand Plaza in Encinitas, California. They watched Sullivan wait in front of a cinema and then be picked up by an unknown male in a red Toyota. The agents later compared a driver’s license photograph of Michael Sullivan with the person they observed waiting in front of the movie theatre to positively identify Sullivan.
At approximately 9:59 p.m. on June 6, 1984, Jackson dialed a number (694-1873) which has been determined to be the pager for Michael Sullivan. After dialing this number, Jackson then dialed his home telephone number. By analyzing all the calls intercepted in this case, the FBI postulates that this is the system used by Frank Jackson to page Michael Sullivan to call Jackson at his home. At 10:01 p.m. that evening Jackson received a call from an unknown male. Jackson told this person that he would have “at least one” available tomorrow and that he had just called “the beeper” and that “as soon as the guy called back,” Jackson would go see “the source.” Jackson quoted a price of “31” and represented that the quality was the best because Jackson knows “the source.” At 10:13 p.m. Jackson paged Michael Sullivan again. At 10:15 p.m. Michael Sullivan called Jackson and they arranged to meet in Del Mar, California. Jackson asked if Sullivan wanted to meet Jackson at Sullivan’s house. Sullivan did not and instructed Jackson to go to Del Mar and to page him. At 10:56 p.m. Rodney Jackson received a call from Frank Jackson. Frank Jackson told Rodney Jackson that he needed a telephone number which he kept in a book in his room. He told Rodney to go in that room and look up “under S then Mike.” Rodney then went to Frank Jackson’s room and said, “694-1873, says Mike beep, other says Tom-290.”
At 7:02 p.m. on June 7, 1984, Jackson phoned the number 694-1873 to page Michael Sullivan. Two minutes later Jackson
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received a call from Sullivan and told Sullivan that his people didn’t want to buy “5” at that price, but that Jackson had someone else or that Jackson would take them himself. Jackson said he needed at least “1” tomorrow. Sullivan told Jackson that he better take them tonight because they may all be gone and said “I’ve got to keep this thing rolling.” Fifteen minutes later, Sullivan called Jackson who told him “I got another 11 for you.” Sullivan said, “I need the whole thing cleared up.” Jackson said he was aware of the total price and that he was trying to raise the rest. When Jackson inquired whether Sullivan had someone else who would take half, Sullivan said it was too late for that because he had already put “other people on other things.” Sullivan told Jackson that he didn’t want to talk over “that” phone about it. At 9:48 p.m. when Sullivan called Jackson, he stated that he had “18” now and was close to raising the entire amount. Sullivan warned Jackson “not to talk like that over the telephone” and told Jackson to say as little as possible.
On June 8,1984, Jackson told Sullivan by phone that he could not make it over to Sullivan’s house and inquired whether Sullivan could send someone over to pick up the money. Sullivan asked if Jackson had all the money and Jackson said he had $18,000, but “a guy was coming over soon with the rest.” Sullivan promised to send someone to Jackson’s to pick up the money. About a half hour later, Sullivan called Jackson and told him that he would send Tim, especially because Sullivan thought that “it was about time that Jackson met Tim.” At 1:33 p.m. that day, FBI agents observed an unknown white male driving a brown Peugeot arrive at Jackson’s residence. The man entered Jackson’s residence and left five minutes later.
Following a phone call to “Conceptual Artists” during which he was provided with Tim’s home phone number, John Kerr called Tim, at the number subscribed to by Tim Halley, and told him that he had some money for him. At 4:32 p.m. on January 8, Steve (LNU) called Sandra Zeck and asked to speak to John Kerr. Zeck told Steve that Kerr was not in and inquired whether Steve had money for John. Steve said that he did have money for John and that he was ready to “work.” Steve told Sandra that he needed to “talk to Michael Sullivan,” and left his brother’s telephone number in Los Angeles where he could be reached.
Agent Walker’s affidavit further describes the use of a pager by Tim Halley to receive and to return phone calls. On June 9, 1984 at 11:18 a.m., after Kerr contacted Halley by pager, Kerr had the following, conversation with Halley. Halley told Kerr that he had been “hung in the middle again” because someone “bailed with 7 of them” and now he has to come up with the money. Tim said that the amount of money was “189.” Kerr inquired “if the guy who bailed with 7 was Tom.” When told that it was not Tom, Kerr asked if the guy was a friend of Mike’s. Kerr said he had “10” for Tim, but Tim said “10” won’t help very much since Tim needed “189.” Tim said that his customers, unlike Mike’s, were “cash and carrying.” Tim said that he had “the things” set aside for Kerr. Kerr said he needed some for his people since he had been gone for two weeks. Kerr inquired how Frank was doing and Tim told him that Frank “welched on 3” and was short. Kerr stated that he had tried to warn Mike about Frank. Agent Walker opines that this conversation regards a cocaine customer who was fronted 7 kilograms of cocaine, but who had not come up with the $189,000 payment for the cocaine. At 2:42 p.m. on that day, Sullivan and Kerr had a conversation in which they discussed the problems of Sullivan’s cocaine business. They also discussed Kerr’s yacht recently purchased in the Virgin Islands.
On June 11, 1984, Jackson attempted to reach Sullivan at his business. Responding to Jackson’s message, Sullivan returned the call and told Jackson not to call him from his home anymore, because Sullivan did not want to talk over that phone. Sullivan said that he wanted Jackson to get into the habit of talking from a pay phone.
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John Kerr also tried to reach Sullivan at his business on that day,, but was told that Sullivan was out.
On June 12, 1984, at 10:58 a.m. Jackson and Sullivan conversed by phone, discussing Sullivan’s failure to use his pager, and setting up a meeting at which time Jackson could “settle his balance.”
Agent Walker’s affidavit further describes five phone calls on June 19, 1984. During these phone calls it is arranged that Steve Vecco (sic) was to stop by Kerr’s house and grab “something” for Sullivan and bring it to Sullivan in San Diego. Arrangements were also made on that date, by phone, for Steve Vecco (sic) to pick something up for Sullivan at Kerr’s house.
Walker also describes two conversations occurring on June 30, 1984. In the first conversation, Jackson and Kerr negotiated the price per kilo of some “work” and arranged to meet at Kerr’s. In the second conversation, Kerr told Pool “that there’s some B-12 in it again.” Kerr acknowledged that he was “putting in a little alcohol” and that he just wanted to let Pool know.
On July 2, 1984, Kerr and Sullivan conversed by phone in guarded and coded language.
To support his conclusion that there is probable cause and a need to intercept the telephone line in Michael Sullivan’s residence, Agent Walker includes in his affidavit eighteen phone conversations intercepted pursuant to Order C. These conversations include successful and unsuccessful attempts to reach Michael Sullivan at his home. John Kerr made calls on June 16, 17, 18, and 30, 1984, to Sullivan’s residence. On those occasions, Kerr either reached Sullivan and discussed the availability of cocaine or he reached persons who agreed to take a message for Sullivan. These calls also include calls between Kerr and Tom Pool during which Kerr attempts, through Pool, to locate Sullivan.
To support his conclusion that probable cause and necessity have been established to continue to intercept Frank Jackson’s home phone numbers, Agent Walker provides the following information, developed during interception authorized by Order C. Agent Walker states that on a daily basis, Jackson uses his telephone to direct the activities of Robert Lewis Shine, J.R. Rolles, Ken Matuozzi, John Slater, Nino (LNU), Bob Lee, Richard Lyman Newman, aka “Red Dog”, Kulbusauskas, Wally (LNU), Jim (LNU), “Ellie”, believed to be Elizabeth Hurley, all of whom Agent Walker believes to be Jackson’s subordinates. Prior interceptions indicate. that Jackson utilizes his home phones to discuss his assets and to raise money for future drug deals and to launder money derived from his cocaine distribution through Scott Susalla and Bob Anderson. Conversations intercepted on Jackson’s home phones indicate that he is supplied by Michael Sullivan, John Kerr, Thomas Pool, Timothy Halley, Dudley Richards Whitney and others. Walker references conversations described earlier in the affidavit with respect to Michael Sullivan. Agent Walker also sets forth the frequency with which Jackson has spoken to Kulbusauskas, Robert Lewis Shine, John Slater, Richard Lyman Newman, Robert Lee and Rick Whitney over his home phones. Agent Walker summarizes those calls involving Jackson. He notes that Kulbusauskas’ calls to Jackson usually contain an inquiry as to whether Jackson is “working.” Conversations involving Shine demonstrate that Shine acts as a “runner” for Jackson. One of the distributors to whom Shine delivers is named Wally (LNU). On two occasions Shine utilized Jackson’s home phone to call Wally (LNU). Agent Walker observes that Jackson’s conversations with John Slater usually are initiated by Slater to order cocaine. Jackson has also made several outgoing calls to Slater to discuss previous orders and money. Agent Walker describes Richard Lyman Newman as a runner for Slater. Bob Lee is characterized as a distributor who is supplied cocaine by Jackson.
Agent Walker notes that Jackson has used his phone to obtain an alternate source for cocaine through Rick Whitney during the period that Michael Sullivan
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lacked a supply. These conversations also involved Whitney ordering large amounts of cocaine from Jackson when Sullivan was unable to supply cocaine.
On June 15, 1984, Jackson received two drug related phone calls on his residence phone. The first, from a caller who identified himself as “Tim, Sullivan’s friend,” involved a request by Tim, who was calling on behalf of Mike, for the “10” that Jackson had mentioned at Mike’s house. Jackson told Tim that the “10” was not available today because he had used it purchase a liquor license. Jackson told Tim that he needed “2.” Tim told him that there may be something happening tomorrow and that he would let Jackson know. The second which occurred at 4:00 p.m. that day, was placed by John Slater. Slater inquired if Jackson had the “blue box.” Jackson said “yes, it was the blue box.” Jackson promised to get Slater the “big one.”
At 3:41 p.m. on June 16, 1984, Nino called Frank Jackson to say that he hadn’t spoken to John Slater that day. Jackson said that he speaks to Slater every two hours. Jackson told Nino that he had “lots of people on hold” because Jackson was waiting “for something to happen.” Jackson told Nino, “I need 5 of them right now” to which Nino responded that he’s “hip,” but that they might only do two at a time. Later in the conversation, Nino said that he was going to need a “couple” real soon. Jackson said he would try, but that “those guys aren’t answering their beepers.”
Agent Walker relies on the following conversations to demonstrate probable cause for interception of Frank Jackson’s second residence phone. Agent Walker refers to earlier paragraphs in his affidavit that summarize calls between Jackson and Sullivan and Jackson and Kerr. Agent Walker emphasizes the frequency with which Jackson uses his second residential phone to speak with Robert Lewis Shine. He makes a similar observation with respect to Jackson’s use of that phone to call Kevin Matuozzi. Agent Walker believes that an analysis of Matuozzi’s conversations with Jackson discloses that Matuozzi is a distributor for Jackson. These calls concern orders for cocaine from Jackson or a request for money from Matuozzi. Interceptions have disclosed that Matuozzi is a bartender at “Dini’s” Restaurant in Solana Beach, California, and that he deals cocaine out of that establishment. Agent Walker also reveals that Matuozzi has been positively identified by the FBI by comparing surveillance photographs with driver’s license photos.
Agent Walker notes that Jackson has used his second residential phone to talk to J.R. Rowles on four occasions. Through intercepted conversations, the FBI has identified Rowles as the manager of Jakes Restaurant in Del Mar, California. Jackson has furnished Rowles with unspecified amounts of cocaine. Agent Walker suggests that Rowles’ involvement is not yet clearly defined. Jackson has also used this phone on seven occasions to call a phone subscribed to by Eddie Susalla. The FBI has identified Susalla by comparing surveillance photographs with Susalla’s driver’s license photos. Jackson has been intercepted telling others that he is employed by Susalla. These interceptions have disclosed that Jackson provides Susalla with unspecified amounts of cocaine and that Susalla issues checks to Jackson drawn on Susalla’s business accounts. These checks are carried on the books of those businesses as “salary” or “commissions” to Jackson. Agent Walker opines that these conversations evidence the fact that Jackson provides cocaine to Susalla, who in return provides Jackson with a means of laundering proceeds from the sale of cocaine and with phony employment to allow Jackson to show income.
Agent Walker also discusses Jackson’s relationship with Bob Anderson and Jackson’s use of his home phones to discuss narcotics transactions with Anderson. Anderson owns a business known as “Anderson Investments” in Rancho Santa Fe, California. Intercepted conversations show that Jackson supplies Anderson with unspecified amounts of cocaine. Conversations intercepted pursuant to Order C have
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disclosed that Jackson uses his home to facilitate his role as supplier to “Ellie” and Jim (LNU) who then, in turn, distribute the cocaine.
Finally, Agent Walker notes that interceptions have disclosed that Jackson’s son, Rodney, utilizes both of Jackson’s residential phones and serves as a conduit of messages to Jackson from those who are involved in his trafficking operation. Frank Jackson also uses Rodney as a runner to pick up money from purchasers.
Agent Walker also concludes that there is probable cause to, and necessity to, intercept calls on Kerr’s home telephone line. Interceptions authorized by Order C show that Kerr’s phone has been used on a daily basis to move multi-kilogram quantities of cocaine. These conversations have disclosed that Kerr serves an important role in the cocaine distribution network headed by Michael Sullivan. Walker references conversations between Kerr and Sullivan discussed earlier in his affidavit. One phone call to Kerr’s residence discloses narcotic related conversations with Steven (LNU). At 6:36 p.m. on January 8, 1984, Kerr and Steve began discussing the fact that Kerr had been gone for two weeks and Steve had some money for Kerr. Kerr told Steve that Michael was leaving town tonight and wouldn’t be back for awhile. Steve said he needed Michael because he had “big money, big work.” Kerr stated that he could get “it” even with Michael Sullivan gone. Steve noted that Michael had quoted him a price of “33.” Kerr said he could probably do that and asked when Steve was ready to start. Steve said he wanted to do it every other day, “about 20 a week, 100 a month.” Steve said he “wanted back in that market” and that he was tired of doing “little bullshit.” Steve indicated that he had “big work” coming from Los Angeles from some “real nice guys, just like us, I’ve known these' guys for awhile...” When Steve asked “are we still working?,” Kerr replied that they would be able to do it because Michael would leave Kerr in charge. Six minutes later Steve called Kerr on his residential phone to clarify the terms discussed in the previous call. Steve said he wanted Kerr to understand him perfectly that his discussion referred to “thousand unit stock options.”
At 11:39 a.m. on June 12, 1984, Brad called John Kerr and asked if Kerr was “working.” Brad admitted that he was working but the prices were “way up.” Brad noted that he was getting “1” tomorrow and he was “going to do it for 40” and that the stuff was “beautiful.” Kerr wanted to know if Brad had “any laying around that he could look at.” Brad invited Kerr to visit his house. Agent Walker notes in his affidavit that during the period between June 6 and June 28, 1984, the FBI intercepted Kerr and Brad over Kerr’s home phone a number of times, each time conversing in a similar fashion.
Agent Walker also reviews conversations intercepted between June 6 and June 28, 1984, between Kerr and the following persons: John Brunner, Steve Vecco (sic), John Freeze, Steve (LNU), Judy (LNU), Brad (LNU), and several other individuals who have not been identified. These conversations included in code the amount, quality and price of cocaine.
Agent Walker proposes that conversations intercepted in late June show that Sullivan, Pool, Halley, Kerr and Jackson, and all the distributors involved with them, await Sullivan’s shipment of cocaine, referred to as “the blue box.” While awaiting this shipment, the different individuals are reaching out to alternative sources to placate their cocaine customers. Walker also presents a conversation that occurred on June 27, 1984, at 9:26 p.m. on John Kerr’s home phone between him and Tom Pool. Kerr inquired if they were still waiting around and Pool responded “yes, but not too much longer.” Pool said that Mike was at Pool’s house right now and Kerr asked if they knew “any numbers on that yet.” Pool told him that the reason that he hadn’t yet called was because Kerr and Mike hadn’t left yet.
Agent Walker postulates that other normal investigative means would not be sue
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cessful in this investigation. First, he notes that the operation is sophisticated in that pagers and pay telephones are used to circumvent electronic surveillance. Nevertheless, Agent Walker notes that business and residential telephones are still necessary to the operation. Even with the guarded and coded language used, intercepting agents are able to discern the meaning of the communications. Second, Agent Walker notes the inefficacies of undercover narcotic buys. The amount of money that would be needed to “buy up” to the level of Michael Sullivan is simply prohibitive to any law enforcement agency. Third, Agent Walker notes that in past undercover work attempted in this case, the individuals involved were too selective and paranoid to deal with undercover agents. Moreover, since members of this organization are all cocaine users who sample the product, any buyer who doesn’t do the same would be immediately detected. Fourth, Agent Walker discusses the limitations of search warrants as an investigative tool in this case. He hypothesizes that agents would be hard pressed to single out the places in which a major supply of cocaine could be seized. Searches of Kerr, Sullivan and Jackson at any given time could result in the seizure of small amounts of cocaine, cash and records, but such searches would not lead to evidence comprehensive enough to “take out an operation of this size.” Fifth, Agent Walker notes that physical surveillances have been extensively used along with the electronic surveillance in the investigation. He notes, however, that physical surveillance as a singular tool is an unrealistic investigative approach to the problems posed by this sophisticated operation.
Agent Walker believes that interception of wire communications at the telephones registered to “Conceptual Artists” will assist in exploring and documenting 1) the identities of all those individuals supplied cocaine by Michael Sullivan; 2) the source from which Sullivan obtains his cocaine; and 3) the manner in which Sullivan utilizes his illegally derived profits. Agent Walker also opines there is probable cause to believe that Sullivan utilizes his residential telephone in furtherance of the cocaine distribution so that objectives similar to those listed above will be satisfied.
As objectives for the interception of Jackson’s home phones, Agent Walker lists exploration and documentation of 1) identities of the individuals supplied cocaine by Jackson; 2) the method utilized by Sullivan’s operation and the roles of Thomas Pool and Timothy Halley; and 3) information regarding Jackson’s assets derived from cocaine trafficking and money laundering schemes which have not yet been fully developed. Agent Walker does admit that electronic surveillance to date has identified numerous individuals that Jackson supplies cocaine, and that Michael Sullivan is Jackson’s source. Agent Walker notes, however, that some conspirators are still not identified are the methods utilized by Sullivan’s operation. The continued interception of Kerr’s residential telephone constitutes the only method to completely document 1) the identities of the individuals supplied by Kerr; 2) Kerr’s role in the distribution network and the technique utilized by Sullivan to distribute cocaine; and 3) Kerr’s burgeoning assets.
Application E
The affidavit of Special Agent Charles Walker presents the factual support for Application E. The affidavit reviews numerous conversations intercepted pursuant to Order D. Relying on the content of these conversations, Agent Walker labels Frank Jackson, John Kerr, and Thomas Richard Pool as integral members of the cocaine distribution organization headed by Michael Sullivan, the president and owner of the business known as “Conceptual Artists.” Sullivan utilizes the business as a front for his narcotic activities and uses the Conceptual Artists’ office as a secure place to conduct meetings with members of the cocaine distribution organization. Previous interceptions have disclosed that Sullivan’s supplier is Fernando (LNU) who utilizes telephone number (619) 438-8234. Another individual of Latin extraction named Tony (LNU) assists Fernando. Both Tony and
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Fernando speak English and Spanish fluently.
Interceptions made pursuant to Orders C and D disclose that a problem exists between Michael Sullivan and Fernando so that Fernando cut off temporarily Sullivan’s supply of cocaine. Agent Walker repeats the conversation on June 9, 1984 between Kerr and Halley in which Sullivan’s “problem” is discussed. Sullivan had fronted seven kilograms of cocaine to a customer who had not paid for them. Halley identified that-customer as Ken.
Electronic surveillance of Sullivan’s home telephone number revealed that he had been calling Ken Clarke in Miami, Florida concerning money owed. Sullivan also spoke frequently with Fernando about Ken Clarke and discussed attempts to get the $189,000 owed to Sullivan from Clarke. Throughout these conversations, Fernando maintained that he would not provide more cocaine until the account was settled. Agent Walker informs that since July 23, 1984, Clarke completed two trips to San Diego from Miami and paid an unspecified amount of money back to Sullivan. The money was in turn given to Fernando. In addition, Sullivan gave $80,000 collected from Frank Jackson to Fernando. Fernando assured Sullivan that when the account was settled, it would be “business as usual.” Agent Walker notes that Sullivan used his home and business phones daily to discuss this “problem” with Clarke and Fernando, to explain the situation, and to apologize to his customers for the delay.
Agent Walker’s affidavit recounts the following events on July 24, 1984. At 3:17 p.m. Michael Sullivan’s secretary, Sandy, took a message for him from Javier (LNU). Javier stated that he had something that he needed to give Sullivan, and Sandy told him that Sullivan expected Javier to come by the office and “take care of things.” Javier arranged to come by the office at 6:30 p.m. Tim Halley called the Conceptual Artists’ office at 3:26 p.m. Sandy reported to Halley that Javier was coming by at 6:30 p.m. Halley said he knew what Javier looked like and that he would “handle it.” At 4:44 p.m. Michael Sullivan called into his office and asked Sandy if she had spoken with Ken Clarke’s wife in Miami. Sandy said that she had and that Ken was coming to San Diego that day. FBI agents surveilling the “Conceptual Artists” business noted that at approximately 6:30 p.m. an unknown male in a truck attempted to enter the premises and then left. At 6:47 p.m. Tim Halley was next observed arriving at Conceptual Artists. He waited a short time and then left.
After being advised by Sullivan’s secretary to try reaching Sullivan at home, Javier phoned Michael Sullivan at his home on July 25, 1984, at 8:28 a.m. Sullivan and Javier argued loudly concerning the money Javier owed Sullivan. At 11:00 a.m. FBI agents observed the individual who had arrived the previous afternoon at Conceptual Artists again arrive. This individual, assumed to be Javier, entered the office and remained a short time before leaving. Earlier that morning, at 7:35 a.m., Sullivan used his home phone to call Ken Clarke in Hollywood, Florida. Clarke told Sullivan that he would be flying to San Diego that evening. On July 26, 1984, Michael Sullivan called Ken Clarke at a pay phone at the San Diego Airport. Sullivan and Clarke got into a discussion about money that Clarke owed Sullivan and about the efforts that Clarke had made to collect this money while in San Diego. Clarke mentioned that he had spent the previous night at the San Diego Hilton Hotel. The following day, FBI agents checked the registration records of the Hilton Hotel on Mission Bay Drive in San Diego, California. They found that Kenneth Nelson Clarke was registered at the Hilton Hotel for July 25 and July 26, 1984. These records also disclosed Clarke’s Florida driver’s license number.
On July 28, 1984, FBI agents checked DEA records for information on Kenneth Nelson Clarke. Records indicated that Clarke was arrested in 1980 for a narcotics violation. DEA records refer to the same driver’s license number as was provided by the Hilton Hotel two days earlier.
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On August 6, 1984, at 2:37 p.m. Jackson phoned Sullivan and asked if anything was “happening.” Sullivan stated that “there were things happening, but that he still had the problem with the one friend,” and could “work” only if he could get that “caught up.” Sullivan noted that his friend would probably “come out tomorrow” and that when he got here it will take him a couple of days to “clear me out, so that's where we’re guaranteed ... but what’s holding me up is him because he has, you know, all my funds.” Sullivan told Jackson that he needed around 60 and if they had that, they could start tomorrow morning.
At 3:30 p.m. Steven Crogstad phoned Michael Sullivan. Sullivan told Crogstad that they were not yet ready to go to Los Angeles because “we are losing so much money.” Towards the end of the conversation, Crogstad said, “we’re not working, huh?” Sullivan cautioned Crogstad not to say that over the office telephone. Agent Walker parenthetically notes that on earlier occasions, Steven Crogstad had been intercepted over John Kerr’s home telephone engaging in cocaine-related conversations with Kerr. Robert Furbush, also intercepted on previous occasions on John Kerr’s phone, called Sullivan at 3:53 p.m. that day. Fur-bush asked Sullivan if Sullivan would be calling him anytime soon.
On August 9, 1984 at 4:42 p.m., Jackson and Sullivan telephonically discussed their respective difficulties in raising money. Later that day Jackson and Sullivan had another phone conversation in which Sullivan promised that “it will happen” by tomorrow. Nine minutes after that conversation, Jackson called Sullivan and asked Sullivan to meet him at the “Aspen Mine Company” on El Cajon Boulevard because that was where Jackson was going to meet “his people.” Sullivan told Jackson that he did not want to meet the people Jackson was getting money from. Jackson didn’t insist. Sullivan did agree to meet Jackson in the parking lot in fifteen minutes. FBI agents surveilling the Aspen Mine Company on El Cajon Boulevard observed at 5:58 p.m. that Jackson’s maroon 1984 Maserati with dealer license plates was parked near the front entrance. They observed Jackson at the bar with Richard Lyman Newman. At 6:04 p.m. Sullivan drove up in his grey Mercedes. Sullivan went inside the bar and immediately stepped back outside with Jackson. Jackson and Sullivan stood by Jackson’s Maserati. Jackson entered the trunk of his car and took a brown package out of the trunk. Jackson then gave this package to Sullivan who shook hands with him, hugged him and then left.
The following day at about 1:44 p.m. Fernando called Sullivan to report that he was not satisfied. At 2:07 p.m. Ken Clarke called Sullivan, explaining that he had tried to “beep” Sullivan. Sullivan explained that he had his beeper on silent. Clarke told Sullivan that he was located at the corner of India and Vine Streets and that “they’re going to be here at 8:00 p.m.” Sullivan, elated over the news, told Clarke to come by his office “real fast.” At 2:30 p.m. FBI agents surveilling the “Conceptual Artists” business observed Ken Clarke arrive in a rental car. Clarke remained inside Sullivan’s office for about ten minutes before leaving. Agents positively identified Clarke by using DEA arrest photographs.
Agent Walker’s affidavit summarizes calls involving Sullivan on both his residential and business phones from August 10 through August 12, 1984. These calls concerned Clarke’s attempts to collect the money he owed Sullivan. Sullivan used his phones to talk to Jackson who pitched in a large sum of money to help Sullivan square things with Fernando. Agent Walker also notes that Sullivan used his phones to talk to Fernando who was becoming increasingly more impatient with Sullivan and the delays in collecting money.
On August 13, 1984, at 9:51 a.m. Mike Lewis called Sullivan. Sullivan and Lewis engaged in a lengthy conversation concerning Sullivan’s finances, and Sullivan explained that he had a temporary cash flow problem and he would therefore not be able to “get anything.” Sullivan speculated that if he added up the times he lost money
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on bad deals in the last four years, he would have lost over $1,400,000.
Because Sullivan has had many conversations with his accountant, Dee Casperson, the FBI has been successful in identifying several bank accounts controlled by Sullivan. These conversations have also disclosed important information about Sullivan’s assets. Walker also presents a list of selected calls made from the “Conceptual Artists” business phones and recorded by a court-authorized pen register. The list includes calls to Kerr, Clarke, Fernando, Jackson, Kathy Davis, Tom Pool, and Dee Casperson.
Application E seeks installation of a microphone at the “Conceptual Artists” business. Agent Walker’s affidavit summarizes calls which he feels demonstrate probable cause for such interception. Intercepted wire communications indicate that Sullivan is using his private office at Conceptual Artists as a place to meet other members of the conspiracy. Examples include meetings at “Conceptual Artists” with Javier, Halley, Ken Clarke, and Robert Furbush. Agent Walker also refers to the conversation intercepted pursuant to Order B in which Sullivan counsels Jackson to deal directly with him in future cocaine transactions. In that conversation Sullivan tells Jackson that he is “getting some set up down here at the office.” Agent Walker describes once again the observations of FBI agents on May. 16,1984 at “Conceptual Artists.” Dave Zimmer was observed entering the business and leaving a short time later carrying what appeared to be a duffel bag.
At 1:26 p.m. on August 1, 1984, Sullivan phoned Jackson. At the time of that call, FBI physical surveillance placed Sullivan at “Conceptual Artists.” Sullivan told Jackson that he was trying to “put something together and I need to get the rest of what you owe me there.” Sullivan told Jackson to come on down to his “factory.”
At 12:22 p.m. on August 3, 1984, Fernando called Sullivan and told him “we are on the corner somewhere.” Sullivan inquired whether they wanted to meet him. Fernando then turned from his telephone and shouted out, “Gary, do you want to meet him somewhere?” Sullivan then said, “Why don’t you just come over first?” Fernando then said to Sullivan, “We will pick you up.” Fernando asked Sullivan for the address. Sullivan told him 808 Imperial Avenue. Once again, Sullivan told Fernando to “come on by” because it is hard for him to leave while he is waiting for phone calls. Fernando assured him, “alright, don’t worry then we will go to your office.” Two minutes later FBI agents observed a red Dodge with a Hertz rental sticker on its rear bumper arrive at 808 Imperial Avenue. Agents observed two unknown males exiting the vehicle, being met by Michael Sullivan in front of the “Conceptual Artists” building, then entering the premises after a short period. At 12:47 p.m. the two unknown males left “Conceptual Artists.” The red Dodge had earlier appeared at “Conceptual Artists” on August 3. FBI agents observed the same red Dodge at the residence of 6825 Luciérnaga Court, Carlsbad, California, the location of the telephone number utilized by Fernando (LNU).
On August 3, 1984, Sullivan and Steve Crogstad spoke twice. At 3:00 p.m., Sullivan told Crogstad he wanted his money. Crogstad said that he knew Sullivan wanted money, but that he had been reluctant to call the office because he had been told not to call the office. Ten minutes later Crogstad called Sullivan and asked if he could come to Sullivan’s office and bring the money. Sullivan told him to come over and that he would wait for him there until 3:30 p.m. At 3:50 p.m. on that same day FBI agents surveilling the “Conceptual Artists” office observed a yellow Toyota Célica driven by a white male and an unknown female. The car stopped at “Conceptual Artists.” Both people entered the building. Seventeen minutes later, the two exited along with Sullivan, who was observed talking to the unknown male.
In response to a conversation they had half an hour earlier, Ken Clarke called Sullivan on August 10, 1984, and told him that
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he would be meeting some people at 8:00 p.m. that evening. Sullivan told Clarke to come to his office before the meeting. That afternoon FBI agents observed Clarke entering the “Conceptual Artists” office.
On August 13, 1984, Sullivan telephonically arranged with Jackson to meet at his office the following morning. In response, Jackson phoned his partner Bob Shine to go to “Conceptual Artists” to meet Sullivan to pick up cocaine, which Sullivan had received from Fernando. On August 14, 1984 at 1:12 p.m., FBI agents observed Bob Shine arrive at “Conceptual Artists” and enter the premises. At one point, the agents observed Sullivan and Shine leaving the premises and walking to a 1984 Oldsmobile automobile, which was parked approximately one block west. Sullivan and Shine entered the car briefly. Sullivan exited the car carrying a gym bag. Sullivan gave this gym bag to Bob Shine, who then proceeded to his car and left the area. The FBI later checked California Department of Motor Vehicle records which disclosed that the 1984 Oldsmobile was owned by the Hertz Rental Car Company at the Los Angeles International Airport.
Explaining the need for interception of wire communications from Sullivan’s residence, Agent Walker notes that pursuant to Order D, Sullivan has been intercepted on a daily basis utilizing his home phone to communicate with others in his cocaine distribution organization. Agent Walker states that Sullivan has used this residence phone to carry on numerous conversations concerning his cocaine operation with Tom Pool, Tim Halley, Frank Jackson, Fernando, Tony, Ken Clarke, Lorrie Clarke, Steven Crogstad, John Kerr, and Kathy Davis. Conversations referring to Sullivan’s problem with Clarke and his debt to Fernando of $189,000 have been intercepted from this phone. Sullivan has also used his residence phone to have drug-related conversations with Frank Jackson, whom Sullivan supplies, and Tom Pool, whose role in the operation is not yet clear. Sullivan also has daily conversations with his girlfriend Kathy Davis in which he keeps Davis apprised of his situation with Ken Clarke and Fernando.
Agent Walker refers to eight conversations intercepted on Sullivan’s residence phone which support his conclusion that Sullivan uses his home phone to carry on drug-related conversations. Three of these conversations between Ken Clarke and Sullivan concern the debt Clarke owes to Sullivan. On August 10, 1984, Kathy Davis called Sullivan at 7:45 a.m. Davis told Sullivan that she had given away all the “stuff” and that she needs some more. Sullivan said he didn’t have any right now either, but that he soon would have some. Later that evening, Sullivan called Kathy Davis and told her that he was going to see Ken that evening to take care of the situation. On August 15,1984, Halley and Sullivan had a conversation over Sullivan’s residence phone during which Halley told Sullivan that he had just gotten out of the hospital and was told by the doctor to stay home for a few days. Sullivan told Halley to rest and to get “all the books straight.” In response, Halley told Sullivan that “they’re straight.” Immediately following that call, Sullivan received a call from Gary Wooten. Sullivan told Wooten that he was “back working again” and Wooten told Sullivan that he needed “to come get some money” from him. Wooten also said that he had to go collect money from a guy that night. Sullivan asked him if he was going to “kick butt?” Wooten said that he was. Sullivan told Wooten that he had a guy in El Centro who owed him money, but that he wasn’t worried about the money, but was worried because the guy had a “big mouth.” Sullivan told Wooten that he would pay him $1,000 if Wooten and Jerome would “scare the shit out of” this guy in El Centro. Wooten assured Sullivan that he could “take care of him.” Earlier in the conversation, Wooten told Sullivan that he was going to see a guy that owed him money and “crack a few ribs.”
Agent Walker’s affidavit also addresses the need to intercept communications on the phone registered to Donna Ledgard at 6827 Luciérnaga Court and used by Fer
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nando. Agent Walker recounts that on July 27, 1984, the FBI conducted a utility check with San Diego Gas & Electric which disclosed that service records at that address were in the name of Fernando Jackson. The records disclosed that Fernando Jackson listed a previous address of 814 Val Sereno, Encinitas, California (Val Sere-no is the street on which Frank Jackson lived at that time.) Agent Walker opines that Fernando Jackson is not the true name of the individual living at Luciérnaga Court. Interceptions pursuant to Order D show that Michael Sullivan speaks to Fernando on a daily basis. The calls are usually attempts by Sullivan to placate Fernando by demonstrating that he is making an effort to raise money. These calls also demonstrate that a man named Tony associates with Fernando and answers this residence phone. Fernando sent Tony to Sullivan’s house on one occasion. Agent Walker includes ten examples of conversations of this nature. On July 25 and August 4 and 5, 1984, Sullivan assured Fernando over Fernando’s residence phone that he was coming up with some money. On August 4, 1984, at 1:51 p.m. Sullivan placed a call to Fernando at that residence phone. Sullivan spoke to an unknown male with an hispanic accent and asked the unknown male if his partner was there. The man told Sullivan that his partner was not there, but would be by shortly. Sullivan told the unknown male that Fernando was supposed to come to see Sullivan that afternoon and Sullivan left word that Fernando should not come by until 4:00 p.m. Sullivan invited the unknown male to accompany Fernando at that time. At approximately 3:00 p.m. on August 4, 1984, an FBI agent surveilling the Luciérnaga Court residence observed a silver 1984 Chrysler leaving the residence. The Chrysler traveled to Michael Sullivan’s residence and was observed at that residence driven by an hispanic looking male. The FBI contacted the California Department of Motor Vehicles and ascertained that the silver 1984 Chrysler was registered to the Hertz Agency located at the Los Angeles Airport.
At 9:13 a.m. on August 10, 1984, Sullivan called Fernando at the Luciérnaga Court residence phone. Fernando told Sullivan that Tony was driving to Sullivan’s house soon. Four minutes later, Tony used the telephone at Michael Sullivan’s residence to call Fernando at Fernando’s residence. Tony and Fernando then had a conversation in Spanish during which Tony asked Fernando if Tony’s brother had called. Agent Walker’s affidavit also analyzes information derived from pen register surveillance conducted on the “Conceptual Artists” phones discussed earlier in the affidavit. He notes that the pen registers disclose almost daily calls being made from “Conceptual Artists” to Fernando’s residence phone. Agent Walker also notes that since July 23,' 1984, physical surveillance has been conducted of the Luciérnaga Court residence. FBI surveillance has spotted four different Hertz rental cars parked at the premises and these rental cars have all been found to be registered to the Hertz Corporation at the Los Angeles International Airpot. Lastly, Walker notes that on August 14, 1984, a court-authorized pen register was placed on Fernando’s residence phone. According to this pen register, two calls were made to Peru and three calls were made to unknown numbers in Florida on that date.
Agent Walker’s affidavit addresses the probable cause for interception of Thomas Pool’s residence phone. Conversations intercepted over Jackson’s home phone began to disclose for the first time that Tom Pool is a major participant in Sullivan’s operation. Agent Walker believes that Pool’s role in the operation is not yet clearly defined, but it is obvious that Pool ranks higher in the organization than does Frank Jackson or John Kerr. Pursuant to Orders C and D, conversations between John Kerr and Tom Pool were intercepted on an almost daily basis. Many of these conversations were calls to Pool’s residence telephone and generally concerned efforts by Pool and Kerr to determine if Mike Sullivan had received any cocaine. Agent Walker references the May 1 conversation between Sullivan and Jackson set forth in Applica
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tion C and discussed in this decision
supra
at 30. He also refers to the May 1 meeting between Jackson and Pool at the Brigantine Restaurant. Agent Walker also refers to six conversations intercepted pursuant to Order C and described in Application D in which Tom is clearly identified as an associate of Sullivan’s.
On July 27, 1984, Kerr placed a call to Tom Pool at Pool’s residence. Pool told Kerr that he had been to Mike Sullivan’s office but that “nothing was going on.” On July 29, 1984, Sullivan called Pool at Pool’s residence. They discussed Sullivan’s problem with Ken Clarke and Sullivan complained to Pool that Clarke still owed him $140,000 and that Sullivan may have to “use some muscle” to get his money. On July 30, 1984, Kerr called Pool at his residence, and they discussed the fact that they were both waiting for “something to come in.”
On August 3, 1984, Sullivan told Pool that “things were picking up.” Pool told Sullivan that he had “them kind of things, too.” Sullivan said he had “a couple of things to talk about” to Pool. Pool said “I got some of those little coupons.” Sullivan then inquired if they were “just personal level?” Pool said they were and the two of them discussed the quality of the “personal coupons” and compared them to a fine wine. Pool told Sullivan he might drop by later and informed Sullivan that if he was not at his own home later, he would have his pager on.
At 8:22 a.m. on August 8, 1984, Sullivan called Pool at his residence and they agreed to meet later. They conversed a half an hour later and agreed to meet that morning at “Carlos and Annie’s” Restaurant in Del Mar, California. FBI agents surveilled the restaurant and at 9:35 a.m. observed Pool and Sullivan meeting there. At 10:05 a.m., Pool and Sullivan left the restaurant and entered Pool’s car where they remained briefly. After a short time, Sullivan left Pool’s vehicle carrying something in his hand and returned to his own car.
On August 10, 1984, Sullivan called Pool at home and they discussed the situation with Ken and Fernando. At 1:58 p.m. on August 14, 1984, Pool called Sullivan who told him that he had already put a call in to Dave to let him know how things were going. Pool asked what “Lonnie was up to.” Sullivan explained that Lonnie had helped get things rolling by coming up with the final $20,000 that Sullivan needed to settle things. Pool recommended that they keep more than they did the last time and Sullivan agreed that he would set “a whole bunch aside” for Pool when he gets back. Sullivan noted that Fernando “had upped the price a little.” Pool inquired what kind they were talking about. Sullivan replied “box.” Later in the conversation, Pool remarked that it looks like “we’re up there in price again.” Sullivan agreed, but counselled “at least we’re busy.” Sullivan asked Pool how things were going “back there” and said “you got us the Gulf yet ... you got us control of the Gulf yet?” Pool said “just about ... I’m taking over.” Sullivan then said “well, just look at it this way, at least we got something to do all our own shit with.” Pool then said that Lonnie was “part of my flow, there he’s going to realize his place.”
Application E also requests continued surveillance of John Kerr’s residence phone. Agent Walker explains that the extension of the Kerr wire tap authorized in Order D provided interceptions and further clarified Kerr’s role in the conspiracy as a multi-kilogram dealer who is supplied by Sullivan. Kerr has almost daily conversations with Tom Pool and these conversations have assisted in clarifying Pool’s role in the operation. These conversations have disclosed that Pool is Sullivan’s partner. Once Kerr is supplied cocaine by Sullivan, Kerr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2311913. Public record. Not legal advice.