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United States v. Concepcion, No. 08-3785-cr (2d Cir. August 31, 2009) McLaughlin, Calabresi, Sack, CJJ)

On this government appeal, the court reversed a district court order suppressing evidence obtained pursuant to a wiretap.


One of Concepcion’s former cellmates (the "CI") went to the FBI claiming that Concepcion planned to assist foreign terrorists in attacking the United States. Based on this, the government applied for and received authorization from Judge Marrero to tap Concepcion’s cell phone for 30 days. The wiretap uncovered no evidence of terrorism, but Concepcion’s telephone conversations led the FBI to believe that he was involved in drug trafficking.

After 30 days, the government submitted a second wiretap application to Judge Marrero that focused on this new evidence. As required under 18 U.S.C. § 2518(1)(c), the supporting affidavit detailed investigative techniques other than wiretaps that had either failed or were likely to fail. It alleged that the government could not use the original CI, because he was incarcerated. The FBI had tried to introduce an undercover agent through the CI, but Concepcion would not take the bait. And, since the government did not know any of Concepcion’s other associates, it could not investigate his activities through the use of other informants. The affidavit next reviewed the FBI’s "limited surveillance" of Concepcion; since none of his associates had been identified, the affidavit indicated that surveillance would be of "limited utility."

Based on this affidavit, Judge Marrero authorized a second wiretap. During the following month, the wiretap picked up additional conversations indicating that Concepcion was involved in a drug conspiracy. A few months later, Concepcion was arrested, and the case was assigned to Judge Scheindlin.

Judge Scheindlin granted Concepcion’s motion to suppress the wiretap evidence, holding that the government had failed to establish that alternative investigative techniques had failed or were likely to fail.

The Circuit’s Decision

The appellate standard of review is highly deferential, limited only to whether the "facts set forth in the application were minimally adequate to support the determination that was made." In this case, however, the court had to decide to which district judge this deference was owed, since Judge Marrero found the wiretap application sufficient, while Judge Scheindlin did not. The court did not definitively settle the question, because here the parties agreed during oral argument that the decision to be reviewed was that of Judge Marrero, and the court accepted the concession.

Next the court reviewed the wiretap statutes themselves, pausing to note the important privacy considerations that are incorporated into those rules. "[T]he question is not whether a wiretap provides the simplest, most efficient means of conducting an investigation; telephone surveillance may only be used when it is necessary to assist in law enforcement."

The facts here were unusual; the FBI "stumbled across" the drug activity during its fruitless terrorism investigation, leaving it with only two means of investigation other than wiretaps - the CI or physical surveillance. While characterizing the case as "exceptionally close," the court disagreed with Judge Scheindlin’s conclusion that the wiretap application was insufficient with respect to those investigative techniques.

The court agreed with the FBI that there was no reasonable way that the CI could be used to investigate Concepcion - Concepcion would not work with him because he was still incarcerated. This left the government only with "traditional surveillance."

As to this consideration, the court noted with displeasure that the supporting affidavit was "less than thorough." Many of the affidavit’s statements about surveillance - such as a claim that drug traffickers are "extremely surveillance conscious" - apply "to all drug cases." Moreover the affidavit did not detail the government’s specific attempts at surveillance. It simply alleged that they had been "numerous." "These general explanations leave a reviewing court to wonder how many times the [FBI] attempted surveillance, at what time, where exactly, and why the [FBI] could not ‘definitively identify’ any of Concepcion’s associates." It is not true that a wiretap is necessary "simply because other unknown individuals" are involved in a conspiracy. "[P]art of the reason law enforcement performs physical surveillance is to identify co-conspirators."

However, despite its defects, here the affidavit was "at least ‘minimally adequate to support’" Judge Marrero’s decision to grant the wiretap. It contained "just enough" facts to indicate that other techniques were not working and that, because of the unusual origins of the case, the FBI could not develop new leads in any other way.

The court accordingly reversed the suppression order, although it ended with a fairly strong admonishment to the government: "we do not endorse the effort put forth by the Government in its affidavit. A first read leaves the impression that the Government chose to reapply for the wiretap not because it was necessary, but because it was easier than beginning a new investigation." In the future, the government "would do well to spell out in more detail its investigative efforts" if it wishes to avoid "future suppression orders."

All of which is, of course, a cold comfort for Mr. Concepcion.



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