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United States v. Ieremia

United States District Court, D. Hawaii

November 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JEREMIAH MATAU, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

          Derrick K. Watson, United States District Judge.

         Defendant Jeremiah Matau is charged with conspiracy to distribute 50 grams or more of methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A). Indictment, Dkt. No. 1.

         On June 13, 2016, and July 12, 2016, pursuant to Title 18, United States Code, Section 2518, district court judges approved orders for wiretaps on several telephone numbers as part of the investigation into Matau and his co-defendants. Motion to Suppress Evidence (Motion), Dkt. No. 515, at 1. On October 9, 2018, Matau filed a Motion to Suppress Evidence, challenging the sufficiency of the affidavits filed in support of those wiretap applications and the necessity of those wiretaps in the investigation that led to Matau's arrest. Id. The Government filed its Opposition on October 17, 2018. Government's Memorandum in Opposition (Opp.), Dkt. No. 525. Matau did not reply. Counsel for both sides notified the court that they did not have witnesses or evidence to present at a hearing scheduled for October 22, 2018 and waived oral argument. Accordingly, with the agreement of counsel, the hearing was vacated. Dkt. No. 533.

         Having completed review of the arguments presented in the parties' briefs, and the record herein, the Court finds that the two relevant affidavits and warrant applications meet the necessity requirement of Sections 2518(1)(c) and 2518(3)(c). Matau's Motion to Suppress is therefore DENIED.

         BACKGROUND

         In June 2016, the Government was in the midst of a two-year investigation into a narcotics conspiracy involving dozens of individuals, including Matau, Laauli Amani and Jeremiah Ieremia, a co-defendant in the instant case. Opp. at 1; Gov't Ex. A. On June 13, 2016, the Government applied for wiretap authorization, pursuant to 18 U.S.C. §§ 2516 et seq., for telephone numbers purportedly used by these individuals. Motion at 1.

         More specifically, the application requested permission to continue a wiretap of a telephone number used by Amani (identified as “TT11”), then already under surveillance pursuant to a May 4, 2016 wiretap warrant. June 13, 2016 Affidavit in Support of Application for Order Pursuant to 18 U.S.C. § 2516 (June Affidavit), ¶ 5. The application also requested that surveillance be initiated on a telephone number purportedly used by Ieremia (identified as “TT13”). Id. In support of the application, the Government submitted an affidavit from Jeffrey Koch, a Special Agent (SA) with the Federal Bureau of Investigation (FBI). Id. In the affidavit, SA Koch states that he is a case agent on the investigation into a drug conspiracy involving Matau, Amani, Ieremia, Daryl Kuresa and several others. Id. ¶ 4. SA Koch also describes, over nearly thirty pages, the various law enforcement techniques employed in the investigation of this conspiracy as well as the law enforcement techniques purposefully not used in the investigation. Id. ¶¶ 128-159. On June 13, 2016, Judge Seabright approved the wiretap order for continuation of surveillance on TT11 and initiation of surveillance on TT13. Opp. at 1.

         On July 12, 2016, the Government filed a renewal application to further continue surveillance on TT11 and to initiate surveillance on four additional telephone numbers, including two purportedly used by Ieremia (identified as “TT14” and “TT15”).[1] July 12, 2016 Affidavit in Support of Application for Order Pursuant to 18 U.S.C. § 2516 (July Affidavit), ¶¶ 8-10. In the July Affidavit, SA Koch once again describes at length the law enforcement investigative techniques used, certain techniques not used, and the reasons those techniques were not used. Id. ¶¶ 191-232. In addition, the July Affidavit includes new information learned since the Government's June 2016 application, including that Ieremia was using a new telephone number. Id. ¶ 155. On July 12, 2016, this Court signed the order granting the wiretap authorization. Opp., Gov't Ex. C at 175.

         During the course of surveillance of TT13 pursuant to the June 13, 2016 Order and TT14 pursuant to the July 12, 2016 Order, law enforcement agents recorded conversations in which Matau was heard speaking. Motion at 2. Matau asserts, and the Government does not refute, that the Government intends to introduce at trial evidence of some of these conversations or other information derived from the surveillance of TT13 and TT14. Id. On October 9, 2018, Matau filed the instant Motion. Dkt. No. 515.

         STANDARD OF REVIEW

         Taken together, “§§ 2518(1)(c) and (3)(c) require a showing of necessity before a district court can issue a wiretap order.” United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988). As such, “the Government must show that every wiretap it seeks is necessary.” United States v. Christie, 825 F.3d 1048, 1066 (9th Cir. 2016).

         In United States v. Rodriguez, the Ninth Circuit describes the necessity analysis as a two-part assessment: First, under 18 U.S.C. § 2518(1)(c), a wiretap application must include a “full and complete statement” as to the “facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, ” including whether traditional investigative procedures (1) have been tried and failed; (2) reasonably appear unlikely to succeed if tried; or (3) are too dangerous to try. 851 F.3d 931, 938. The court reviews de novo whether the application includes such a statement. Id.

         Second, if the affidavit meets the “full and complete statement” requirement, the court then reviews the issuing court's conclusion that the wiretap was necessary. Id. The issuing judge's decision that the wiretap was necessary is reviewed for abuse of discretion. United States v. Lynch, 437 F.3d 902, 912 (9th Cir. 2006) (en banc); United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir. 1986)).

         DISCUSSION

         Matau challenges both the June and July 2016 wiretap orders on the basis that the two related applications fail the combined Sections 2518(1)(c) and 2518(3)(c) necessity requirement. In particular, Matau argues that the Government's affidavits did not sufficiently explain what traditional law enforcement techniques had been used, and even where they did, portions of the affidavits employed common verbiage in describing those techniques, copying directly from affidavits in support of previous wiretap applications. Motion at 2-6. Second, Matau argues that the wiretaps were not necessary because other techniques could have been used to gather information about Ieremia. Motion at 6-9. Because neither contention has merit, the Motion to Suppress is DENIED.

         A. The Affidavits Provide a Full and Complete Statement Regarding Traditional ...


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