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United States v. Arellano

United States District Court, D. New Mexico

June 1, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT ARELLANO, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendant Robert Arellano's motion to suppress the intercepted calls and their fruits (Doc. 25), and Mr. Arellano's motion to suppress the statements of another individual, Anthony Gaines, from excerpts of the recorded calls (Doc. 61). The Court denies the motion to suppress the intercepted calls, but grants in part the motion to suppress Mr. Gaines's statements from the excerpts of recorded calls.

         FACTS

         On October 6, 2015, law enforcement agents submitted to the Superior Court of New Jersey an ex parte application for a wiretap order. The agents wanted to surveil Anthony “Monte” Gaines and “other identified and unidentified individuals” for evidence of potential drug law violations.[1] The defendant, Robert Arellano, was not mentioned in the affidavit.

         Although the affidavit explained that “extrinsic minimization” is the “cutting back [of] the hours of interception, during the period of wire and electronic interception, ” the affidavit did not explain when or how extrinsic minimization would be used. (Doc. 25, Ex. 1 (First wiretap affidavit) at 101.) The affidavit also mentioned “intrinsic minimization, ” but only to say that intrinsic minimization is not feasible for intercepted electronic communications like text messages. (Id. at 104.) There was no explanation of what intrinsic minimization entailed, nor was there a description of when or how the agents would use intrinsic minimization.

         The New Jersey Superior Court entered the order that same day, finding probable cause to believe that the individuals listed in the affidavit had violated the specified drug laws. In its order, the New Jersey Court stated that “the interception shall end as soon as practical and be conducted in such a way as to minimize or eliminate the interception of communications other than the type described herein by making reasonable efforts, whenever possible, to reduce the hours of interception authorized by this Order . . . .” (Doc. 25, Ex. 2 (Wiretap Order) at 7.)

         On October 8, 2015, agents intercepted a call between Mr. Gaines and Mr. Arellano. According to Mr. Arellano, the call lasted about 42 minutes and did not involve the drug offenses justifying the wiretap. The call did, however, involve discussion that implicated dog fighting.

         On notice that agents may have captured “other crime evidence, ” a prosecutor with the state of New Jersey wrote a letter to the judge supervising the wiretap. The letter, dated October 13, 2015, contains the following information:

• Law enforcement intercepted calls that apparently relate to dog fighting.
• The calls are between Mr. Gaines and “an unknown individual who appears to be from New Mexico.”

• “There have been other calls containing what [law enforcement] believe[d] to be CDS[2] Distribution pertinent conversations which include references to dog fighting.”

• New Jersey has no statute barring dog fighting, except for perhaps cruelty to animals, which law enforcement cannot investigate with a wiretap.
• The New Jersey prosecutor “had instructed” monitors to “minimize calls related to dog fighting unless there is also a CDS pertinent reason to monitor the call.”
• But “upon further consideration, ” the prosecutor noted that “dog fighting is customarily associated with gambling, ” which law enforcement may investigate with a wiretap.
• The prosecutor notified the U.S. Attorney's Office.
• The prosecutor promised to notify the Court if there was “a change in circumstances necessitating an amendment to the [wiretap order].”

(See Doc. 25, Ex. 4 (Letter to Judge).)

         The prosecutor never sought an amendment to add gambling as an offense under investigation. Following the letter, and before the 30-day wiretap period ended, the government intercepted at least some parts of four more calls, on October 19, 23, 25, and 30, 2015. (See Doc. 25, Ex. 3 at 1-3.)

         On November 4, 2015, law enforcement sought to extend the wiretap for another 30 days, submitting an ex parte application for an extension order. The affidavit did not mention Mr. Arellano, dog fighting, or gambling. The Superior Court of New Jersey entered an extension order, which contained the same minimization language as the previous order authorizing the wiretap. That same day, the government intercepted another call between Mr. Arellano and Mr. Gaines.

         On November 19, 2015, state prosecutors asked the judge supervising the wiretap for an order to disclose, which would allow them to share other crime evidence obtained from the wiretap with other law enforcement agencies. Specifically, state prosecutors wanted to share with federal agents and prosecutors all orders, affidavits, and “ ‘contents of conversations and data intercepted throughout the course of the investigation' for the purpose of investigating and presenting to a grand jury” evidence of certain crimes, including violation of 7 U.S.C. § 2156, which prohibits animal fighting ventures. (Doc. 29 at 3.)

         The supervising judge authorized the requested disclosure. Although the supervising judge said that she “made findings of fact and conclusions of law, ” she did not specify her findings and conclusions. (See Doc. 29, Ex. 2 at 3.)

         Following disclosure, federal agents investigated Mr. Arellano, culminating in a May 20, 2016 application for a search warrant to search Mr. Arellano's house. The application stated that there was probable cause to believe that there would be evidence of dog fighting in Mr. Arellano's house. (Doc. 29, Ex. 7 (Search warrant application) at 17.) This conclusion relied heavily on what the government claimed to be lawfully-intercepted calls between Mr. Arellano and Mr. Gaines. But contrary to Mr. Arellano's belief, the application also relied on evidence apart from the intercepted calls.

         On “Peds Online, ” a website that dog fighters use to post breeding information to prove and verify dog lineage, the government found about 80 dog pedigrees for fighting dogs that identify Mr. Arellano as either the breeder or owner. (See Id. at 12-13.) Eleven of the 80 pedigrees contained pictures of dogs, and scars or injuries are visible in 6 of the photographs. (Id. at 13.) Some photographs also have handwritten notations, such as “2xW, ” “5xw, ” “CH, ” or “GR CH.” (Id.) Steve Romero, Special Agent with the U.S. Department of Agriculture Office of Inspector General, swore that these notes refer to the dogs having won multiple dog fights. (Id.)

         Several pedigrees from Peds Online that identified Mr. Arellano as the owner or breeder “contained the dog ‘CH Wood's Miss Pool Hall Red 5xW ROM' in the bloodline.” (Id. at 14.) In an intercepted call between Mr. Gaines and “Person #1, ” Mr. Gaines references his “Arellano dog . . . my little Pool Hall bitch.” (Id.) In another intercepted call, between Mr. Gaines and “Person #2, ” Mr. Gaines told Person #2 that “he has ‘Pool Hall stuff' from the man he gets his dogs from in New Mexico.” (Id.)

         In yet another intercepted call, between Mr. Gaines and “Person #3, ” Mr. Gaines tells Person #3 that he was “in possession of a female dog he got from [Mr. Arellano].” (Id.) Mr. Gaines also “described the pedigree of one of his dogs to an unknown male and said she came from [Mr. Arellano].” (Id.) And Mr. Gaines told “Person #5” that “he pays [Mr. Arellano] several hundred dollars per dog.” (Id. at 15.)

         Mr. Gaines told “another dog fighter on October 20, 2015[, ]” that Mr. Arellano “just put . . . one through the air.” (Id. at 16.) On the basis of intercepted communications, Special Agent Romero sought and obtained air waybills that show Mr. Arellano shipped dogs through Delta Air Lines. (Id. at 15-16.)

         Agents also conducted ground and aerial surveillance of Mr. Arellano's house. They saw “nine small square chain-link fence dog enclosures, each separated from the other by at least several feet.” (Id. at 16-17.) They saw dogs in four of the enclosures, as well as dog houses in three of the enclosures. (Id. at 17.) The ground in the area was worn in an arc pattern, which Special Agent Romero said was indicative of a “chain spot, ” or a radius-like disruption to the ground resulting from a dog dragging on a chain to which it is tethered. (Id.)

         After viewing the evidence presented in the warrant application, a magistrate judge approved the search warrant, and law enforcement searched Mr. Arellano's house on May 20, 2016. The agents seized all manner of evidence in Mr. Arellano's house, including photographs, videos, hard drives, and dogs.

         Mr. Arellano was arrested on June 1, 2016, on a complaint issued out of the U.S. District Court for the District of New Jersey, alleging that Mr. Arellano conspired with others to violate federal dog fighting prohibitions. (Doc. 25 at 8.)

         On May 9, 2017, the U.S. Attorney's Office in the District of New Mexico filed another indictment against Mr. Arellano, charging him with the possession of 13 dogs for purposes of having the dogs participate in an animal fighting venture. (Id. at 8-9.)

         On June 21, 2016, New Jersey prosecutors applied to the supervising wiretap judge for disclosure of the intercepted communication “to any attorney assigned to represent any defendant[] charged as a result of this investigation” or “for any other purposes pursuant to the prosecution of this matter.” (Doc. 29, Ex. C at 6.) The New Jersey court granted the application. (Doc. 29, Ex. D.)

         At trial, the government wants to introduce excerpts of the October 8, October 19, and October 30 calls ...


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