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United States of America v. David Curran

May 27, 2011

UNITED STATES OF AMERICA
v.
DAVID CURRAN, BRADLEY BARNDT, AND FRANCO BADINI



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

Presently before the Court for disposition is the MOTION TO SUPPRESS WIRETAP AND ELECTRONIC INTERCEPTIONS filed by Defendant David Curran (Document No. 488) and joined by Defendants Franco Badini (Document No. 496) and Bradley Barndt (Document No. 510) and the MOTION TO SUPPRESS RECORDINGS OF ELECTRONIC SURVEILLANCE filed by Defendant Bradley Barndt (Document No. 362). The government, with the Court‟s permission, filed an Omnibus Response to all pretrial motions (Document No. 521), including a specific response to Defendants‟ motions to suppress wiretap and electronic interceptions.

A hearing on pretrial motions filed by Defendants was scheduled and conducted by the Court on April 13, 2011. Each of the named Defendants, with counsel, was present in person. After initial remarks of the Court and statements of counsel for the government and each defendant, it developed that the Court did not need to conduct an evidentiary hearing on the motions to suppress wiretap evidence. The motions challenge the sufficiency of the information contained within the four corners of the Applications and Affidavits and have been thoroughly briefed.

The Investigation and Wiretap Intercepts

In January 2009, the Drug Enforcement Administration ("DEA") initiated an investigation into the drug trafficking organization allegedly led by Defendant David Curran ("Curran"). According to law enforcement, from January through May 2009, several informants had provided information which confirmed that Curran and several associates were trafficking in substantial quantities of cocaine in the Western Pennsylvania area and had been doing so for several years.

The government filed nine (9) applications for Title III wiretap intercepts on five telephones, four of which were being used by Curran. The initial wiretap was authorized by Judge Joy Flowers Conti on June 19, 2009, based on an Application from Assistant U.S. Attorney Craig W. Haller and a 52-page Affidavit from Detective Eric Harpster of the City of Pittsburgh Police Department, Weed and Seed Division, who is a federally deputized task force officer of the DEA. Judge Conti issued eight (8) subsequent Orders which authorized the continued interception of wire communications of Curran and others, based on follow-up Applications submitted by Assistant U.S. Attorney Craig W. Haller and Affidavits of Dominic J. Falascino, Task Force Officer for the DEA - Pittsburgh Office. Judge Conti issued the final Order authorizing wire intercepts on October 16, 2009. The Applications, Affidavits, and Court Orders have been provided to Defendants. (Miscellaneous Numbers 09-194 and 09-194(a) through 09-194(h).)

Defendants argue that the wiretap evidence should be suppressed because wiretaps were obtained in violation of 18 U.S.C. § 2518. In particular, Defendants argue that the Affidavits failed to satisfy the "necessity" requirement as they did not establish a sufficient factual predicate as to why other traditional, less-intrusive law enforcement techniques were not sufficient.

Defendants contend that the Affidavits contain only vague and conclusory allegations as to the events of this case. The government contends that its Applications and the underlying Affidavits properly complied with the requirements of the wiretap statute and that the Affidavits clearly reflect the investigative need for wiretap intercepts as normal investigative techniques appeared reasonably unlikely to succeed if tried.

Legal Standard

Before issuing an order authorizing a wiretap, it is required that "the judge determine[] on the basis of the facts submitted by the applicant . . . that normal investigative procedures have been tried and have failed[,] or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c). The United States Court of Appeals for the Third Circuit has emphasized that the statutory requirement of necessity does not mandate that the government exhaust all other investigative procedures before resorting to electronic surveillance. United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997). Instead, to authorize a wiretap, it is sufficient if there is evidence that "normal investigative techniques . . . reasonably appear to be unlikely to succeed if tried." Id. (quoting 18 U.S.C. § 2518(3)(c)).

To make such a showing, "[t]he government need only show a "factual predicate‟ sufficient to inform the [authorizing] judge why other methods of investigation are not sufficient." United States v. McGlory, 968 F.2d 309, 345 (3d Cir. 1992). In determining whether this requirement has been satisfied, a court "may properly take into account affirmations which are founded in part upon the experience of specially trained agents." Williams, 124 F.3d at 418. In this regard, "[t]he government‟s showing is to be "tested in a practical and commonsense fashion.‟" McGlory, 968 F.2d at 345 (quoting United States v. Vento, 533 F.2d 838, 849 (3d Cir. 1976)).

Discussion

On June 19, 2009, Judge Joy Flowers Conti authorized the interception of wire (telephone) communications of Curran and others, including individuals unknown at the time, occurring on cellular telephone number (724) 708-8235. Between July 14, 2009, and October 16, 2009, Judge Conti approved eight (8) additional applications based on follow-up Applications / Affidavits for the continued interception of wire communications of Curran and others. Pursuant to the Court‟s Orders, the DEA intercepted numerous telephone calls to and from Curran. Several of the intercepted telephone calls appear to involve the receipt of drugs by Curran from his suppliers, the redistribution of those drugs by Curran and his associates, and the collection of money by Curran for previously supplied drugs.

In authorizing the first interception, Judge Conti relied, in substantial, part, on the 52-page, sworn affidavit of Detective Eric Harpster of the City of Pittsburgh Police Department, Weed and Seed Division, who is a federally deputized task force officer of the DEA. The subsequent applications were each supported by the affidavit of Dominic J. Falascino, Task Force Officer for the DEA - Pittsburgh Office. As explained in the applications, the investigation involved an ongoing, wide-ranging narcotics conspiracy. Defendant Curran and his associates used certain telephones to discuss and complete drug transactions.

The initial application detailed the long-term and ongoing drug distribution activities of Defendant Curran and his associates; the recent interaction between Defendant Curran and members of the Bosnian drug trafficking organization that was supplying him with cocaine; contemporaneous intercepted communications between members of the Bosnian organization concerning their customers, including Defendant Curran; and a list of contacts between Defendant Curran‟s telephone, the members of the Bosnian organization, and Defendant Curran‟s other associates. The ...


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