United States District Court, D. Montana, Billings Division
SUSAN P. WATTERS, District Judge.
Defendant Jason Neel ("Neel") has filed a Motion to Suppress Title III Wiretap Evidence and for Franks Hearing (Doc. 244). In part of his motion, Neel seeks a Franks hearing to determine whether law enforcement intentionally or recklessly omitted evidence in their applications for wiretap warrants that could impeach the credibility of a Confidential Human Source ("CHS"). Co-defendant Mario Villegas ("Villegas") joins the motion (Doc. 249). The Court previously set a hearing to consider all of the arguments set forth by Neel and Villegas. (Doc. 254). The Court now finds that Neel and Villegas are not entitled to a Franks hearing and denies those portions of their motions.
A. The investigation
This Court authorized three wiretaps in this case. The Court signed the first authorization on January 23, 2014, which allowed law enforcement to intercept calls involving two of co-defendant Casey Fleming's ("Fleming") phones. On February 3, 2014, this Court authorized a wiretap on Neel's phone. On February 15, this Court authorized a wiretap on co-defendant Desiree Jimenez's phone. On February 21, 2014, this Court authorized a 30-day wiretap extension on one of Fleming's phones. Unless otherwise noted, the following information is taken from the wiretap applications. This recitation is not an exhaustive review of the alleged facts, but rather is intended to put the Franks arguments in context.
At the time of the investigation, Neel was incarcerated in a California prison on a murder conviction. Through contraband cell phones, Neel directed a drug trafficking organization. In late September 2013, Neel called a CHS and informed him that co-defendant Fleming was driving to Billings to distribute methamphetamine. The CHS contacted Fleming, and Fleming told the CHS that he was going back to California but that he would soon return to Montana with more methamphetamine.
The CHS remained in contact with Neel and Fleming. Some of the CHS's calls with Neel and Fleming were consensually recorded. For example, in a recorded call, Fleming instructed the CHS to send him drug proceeds through Green Dot or MoneyGram. The investigating agents also consensually recorded calls where the CHS spoke with Neel and Fleming about shipping drugs through the mail.
In early November 2013, the CHS notified the agents that Fleming had returned to Billings. The CHS also relayed information that Fleming was dealing drugs out of a trailer. Law enforcement did a drive-by surveillance of the trailer and observed a car rented by Fleming parked outside.
Law enforcement asked the CHS to introduce Fleming to an undercover agent ("UCA"). On November 14, the CHS called Fleming and tried to set up a drug deal from Fleming to the UCA. Fleming said he was out of town, but he arranged for the CHS and the UCA to purchase methamphetamine from "Dave" in Roundup. "Dave" was later identified as co-defendant David Goffena ("Goffena"). The CHS and the UCA drove together to Roundup and purchased ½ ounce of methamphetamine from Goffena.
On November 15, the CHS tried to set up another sale of methamphetamine from Fleming to the UCA. Fleming agreed to sell the UCA ½ ounce. That day, the UCA met Fleming at a prearranged meeting place and purchased ½ ounce of methamphetamine. Fleming gave the UCA his phone number. Fleming also told the UCA that he purchased his drugs from a massive methamphetamine laboratory in southern California.
From that point, the wiretap applications scarcely mention the CHS. The UCA purchased methamphetamine from Fleming on several occasions. The UCA developed a good rapport with Fleming, and Fleming began giving the UCA 2 oz. of methamphetamine at a time for redistribution. Law enforcement obtained a search warrant for Fleming's text messages, which revealed discussions with Neel regarding drug distribution. Calls recorded pursuant to the wiretap orders produced incriminating evidence against Neel and Villegas.
B. The CHS's credibility
In each of the wiretap applications, the agents discussed using the CHS. The agents provided the CHS with monetary compensation in addition to purchasing for him "a cell phone, phone cards, and two cheeseburgers." Law enforcement noted that the CHS had previous felony convictions for grand theft and possession of a controlled substance. Each application also stated the following:
Also of importance, on December 26, 2013, the CHS voluntarily disclosed to Agents that he/she had a heroin addiction in the past but had been clean for several years. On or about, December 20, 2013, the CHS succumbed to his/her addiction and used heroin for three days. The CHS does not believe he/she will succumb to the addiction again. However, if the CHS uses heroin again, Agents may not be able to use the CHS in the ...