Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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NESCI, ST. LOUIS & WEST, P.L.L.C. 216 North Main Avenue Tucson, Arizona 85701 Telephone (520) 622-1222 Joseph P. St. Louis Arizona State Bar No. 11728 Pima County Computer No. 54638 Attorney for Defendant

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. PAUL EPPINGER (4), et. al. Defendants. Defendant PAUL EPPINGER, by and through counsel undersigned, on behalf of himself and his co-defendants, hereby submits his Memorandum regarding the scope of the hearing to be held in this matter, as set forth in the attached Memorandum of Points and Authorities, incorporated herein by this reference. DATED this 25th day of October, 2005. NESCI, ST. LOUIS & WEST, P.L.L.C. By: /s/ Joseph P. St. Louis Joseph P. St. Louis Attorney for Defendant Case No. CR-0730-PHX-SRB DEFENDANT'S MOTION REGARDING THE SCOPE OF THE WIRETAP EVIDENTIARY HEARING

Case 2:03-cr-00730-SRB

Document 1310

Filed 10/25/2005

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NESCI, ST. LOUIS & WEST, P.L.L.C. 216 North Main Avenue Tucson, Arizona 85701 Telephone (520) 622-1222

Memorandum of Points and Authorities Introduction: Title 18 U.S.C. § 2518(1)(c) provides that each application for a wiretap authorization shall include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Title 18 U.S.C. § 2518(3)(c) provides that in issuing a wiretap authorization order, the district court must determine whether "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." This Court has previously determined that defendants are entitled to a hearing on whether the wiretap obtained in this case was actually necessary. Legal Discussion: The government must overcome the statutory presumption against granting a wiretap application by showing necessity. See United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974); United States v. Bailey, 607 F.2d 237, 241 n. 11 (9th Cir.1979), cert. denied sub nom. Whitney v. United States, 445 U.S. 934, 100 S.Ct. 1327, 63 L.Ed.2d 769 (1980). This showing must be made by alleging that would render normal investigative techniques ineffective, or the application must be denied. See United States v. Abascal, 564 F.2d 821, 825-26 (9th

Cir.1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1583, 55 L.Ed.2d 804 (1978); United States v. Kerrigan, 514 F.2d 35, 38 (9th Cir.) (per curiam), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975). Specificity is required "to prevent the government from making general allegations about classes of cases and thereby sidestepping the requirement that there be necessity in the particular investigation in which a wiretap is sought." U.S. v. Ippolito, 774 F.2d 1482, 1486 (9th Cir. 1985). The Court in Ippolito went on to note: Although the government need not pursue every alternative means of investigation, neither should it be able to ignore avenues of investigation that appear both fruitful and cost-effective. It is not unreasonable to expect the government to utilize those

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NESCI, ST. LOUIS & WEST, P.L.L.C. 216 North Main Avenue Tucson, Arizona 85701 Telephone (520) 622-1222

methods that appear to be potentially productive. We would flout the statutory intent that wiretaps be used only if necessary, were we to sanction a wiretap simply because the government pursued some "normal" investigative strategies that were unproductive, when more fruitful investigative methods were available. In effect, the government would be able to secure a wiretap in every case, even where a normal strategy would be likely to achieve the same result without resort to the serious intrusion that a wiretap necessarily entails. U.S. v. Ippolito, supra, 774 F.2d at 1486. Our Court of Appeals has been clear that a defendant challenging the necessity of the government obtaining a wiretap is entitled to a hearing to establish that there were material omissions or misstatements. Taken together, §§ 2518(1)(c) and (3)(c) require a full and complete statement establishing necessity. The purpose of these requirements is to ensure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Thus, we require a full and complete statement of specific allegations indicating why normal investigative procedures failed or would fail in the particular case. See United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir.1985). Beyond the specificity requirement, we have adopted a "common sense approach" in which the reviewing court uses a standard of reasonableness to evaluate the government's good faith effort to use alternative investigative means or its failure to do so because of danger or low probability of success. Id. In addition to assessing the application for an adequate showing of necessity, the suppression court must examine it to see whether it contains material misstatements or omissions regarding necessity. Ippolito, 774 F.2d at 1485-86. If an application contains inaccuracies or significant omissions, the court must determine the facts relying on credible evidence produced at the suppression hearing to determine whether a "reasonable [issuing] judge could have denied the application because necessity for the wiretap had not been shown." Id. at 1486-87. U.S. v. Blackmon, 273 F.3d 1204, 1207-1208 (9th Cir. 2000). This Court has already recognized that Defendants are entitled to a hearing on whether the wiretapped obtained in this case was necessary. As such, defendants are entitled to a Blackmon hearing on whether the officers who swore out the affidavit made materials omissions or misstatements regarding necessity. At the conclusion of the hearing, following the Ninth Circuit authority cited above, this Court must then determine the facts and whether if the issuing judge had known the true facts he could have denied the application, finding that necessity had not been shown.

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NESCI, ST. LOUIS & WEST, P.L.L.C. 216 North Main Avenue Tucson, Arizona 85701 Telephone (520) 622-1222

RESPECTFULLY SUBMITTED this 25th day of October, 2005.

NESCI, ST. LOUIS & WEST, P.L.L.C. By: /s/ Joseph P. St. Louis Joseph P. St. Louis Attorney for Defendant

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NESCI, ST. LOUIS & WEST, P.L.L.C. 216 North Main Avenue Tucson, Arizona 85701 Telephone (520) 622-1222

CERTIFICATE OF SERVICE I hereby certify that on October 25, 2005, I served the attached document on the Court and on all the following parties: Gregory Fouratt Steven Yarbrough Glenn McCormick James Belanger Billy Blackburn Kari Converse Carmen Fischer Jerry Herrera Barbara Hull Gregory Kuykendall Daniel Maynard James Sun Park Joe Romero Peter Schoenberg John Sears Joseph P. St. Louis Michael Terribile I also hereby certify that on October 25, 2005, I sent a copy of this document by hand-delivery to: Honorable Susan R. Bolton United States District Court 401 West Washington Street Phoenix, AZ 85003 Capital Case Staff Attorney 401 West Washington Street Phoenix, AZ 85003 /s/ Michael B. Bernays

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