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United States v. Montemayor

United States District Court, N.D. Georgia, Atlanta Division

June 2, 2017

UNITED STATES OF AMERICA,
v.
CARLOS MONTEMAYOR, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Carlos Montemayor's(“Defendant” or “Montemayor”) Objections [257] to Magistrate Judge Janet F. King's Order [253] granting the Government's Motion to Disqualify [196] Richard A. Rice, Jr. (“Mr. Rice”) as Defendant's attorney in this action.

         I. BACKGROUND

         Defendant was charged in 2009 in a multi-count indictment alleging Conspiracy to Possess with Intent to Distribute at Least Five Kilograms of Cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii), and 18 U.S.C. § 2; Conspiracy to Import at Least Five Kilograms of Cocaine, in violation of 21 U.S.C. §§ 963, 960(b)(1)(B)(ii), and 18 U.S.C. § 2; Possession with Intent to Distribute at Least Five Kilograms of Cocaine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A)(ii); and Conspiracy to Commit Money Laundering, in violation of 18 U.S.C. § 1956(h). Defendant was arrested in Mexico on November 23, 2010, and extradited to the United States on or about September 30, 2015.

         From the Spring of 2003 to February 2008, Mr. Rice served as an Assistant United States Attorney (“AUSA”) for the Northern District of Georgia, in the Narcotics/Organized Crime and Drug Enforcement Task Force (“OCDETF”). The charges against Defendant are the result of an investigation conducted while Mr. Rice was an AUSA. The Government argues that, although the investigation was led by AUSA John Horn (“Mr. Horn”), Mr. Rice was the lead AUSA on a simultaneous investigation that was, at the time, related. The Government contends that the overlapping targets of, and the coordination between, the two investigations to determine the roles of the targets and prosecution strategy, exposed Mr. Rice to confidential information and strategy about the investigation of Montemayor. The Government asserts further that Mr. Rice, as an AUSA, requested records related to evidence the Government intends to introduce against Montemayor at trial. Because Mr. Rice played a personal and substantial role in the investigation that led to the indictment and prosecution of Montemayor, the Government argues that Mr. Rice is prohibited from representing Montemayor in this case.

         A. The Valencia Investigation

         In October 2004, the United States Attorney's Office (“USAO”) began investigating Edwar Valencia-Gonzalez (“Valencia”) and his drug trafficking and money laundering organization (“Valencia DTO”). The investigation resulted in the indictment of Defendant Montemayor and others in this case.[1] Mr. Horn was the lead prosecutor assigned to the investigation and prosecution of the case.

         On March 15, 2005, agents searched two stash houses associated with Valencia and seized funds and large quantities of cocaine.

         In June 2005, a court authorized the first of eight (8) Title III (“TIII”) wiretaps in connection with the Valencia DTO investigation. On June 10, 2005, a wiretap was authorized for a device associated with Valencia. This resulted in the identification of (1) a Mexican source of supply, Juan Montemayor (“Juan”), Carlos Montemayor's brother and a co-defendant in this case; and (2) Romero Roel Martinez (“Martinez”), an intermediary in the organization who was indicted in an earlier related case.[2] As a result of a July 15, 2005, wiretap order regarding devices associated with Valencia and Martinez, agents determined that Carlos Montemayor and Juan together supplied drugs to the Valencia DTO and laundered funds accumulated in drug trafficking activity. (Order at 3-4).

         B. The Gotti Investigation

         Beginning in April 2005, Mr. Rice was overseeing the investigation and prosecution of another drug trafficking organization (“Gotti DTO”), the primary target of which was Javier Alvarez-Lopez, a/k/a Gotti (“Gotti”). Mr. Rice was working with a group of Drug Enforcement Administration (“DEA”) agents different from the group working on the Valencia DTO investigation.[3]

         On May 10, 2005, Mr. Rice obtained the first TIII authorization in the Gotti DTO investigation. The affidavit in support of the application set out background information about the organization, including that agents had identified Valencia as a drug trafficker and had seized large quantities of drugs and funds associated with him in March 2005, and that a summary of telephone toll records showed a number of communications, the contents of which were unknown, between Valencia and Gotti in the Spring of 2005. Valencia was identified as a target of the Gotti DTO investigation. In the application, Mr. Rice stated, in pertinent part, that he had “discussed all of the circumstances of the [listed offenses] with [the affiant], who, along with other law enforcement officers, has conducted th[e] investigation[, ]” that he “also received the Affidavit of [the affiant, ]” and “upon information and belief, ” that there was probable cause to believe the targets had committed the identified offenses, that the wire communications would produce evidence of those offenses, as specified, and that the “affidavit contains a full and complete statement” establishing necessity for the wire intercept being sought. Mr. Rice certified, under penalty of perjury, that the contents of the application he signed were true. (Id. at 5-6).

         On June 8, 2005, and July 8, 2005, Mr. Rice submitted and obtained additional TIII wiretap applications and affidavits. These applications continued to identify Valencia as a target of Mr. Rice's Gotti DTO wiretap investigation.[4] (Id. at 6).

         C. Additional Wiretap Applications

         1. July 15, 2005, Valencia DTO Application

         The Valencia DTO wiretap applications also identified Gotti as a target of the Valencia DTO investigation. Notably, the July 15, 2005, affidavit in support of a Valencia DTO wiretap application provided the prosecutors' and agents' understanding at that time of the relationship between the Valencia DTO and the Gotti DTO. The background section included the following information: although the Valencia and Gotti DTOs each had their “own SOS [source of supply] and distribution channels, ” Valencia and Gotti communicated with each other, and had been intercepted on the TIII authorizations discussing drug distribution; the DTOs had at least one common SOS but also had separate SOS; the DTOs used some common resources, such as off-loading sites and drug stash houses; there appeared to be common targets, including “Ulysses;” and there was a “loose connection” between Valencia and Gotti, even though each was “operating independently.” (Id. at 6-7).

         2. July 27, 2005, Gotti DTO Application

         In the July 27, 2005, affidavit in support of a further wiretap application in the Gotti DTO investigation, the affiant identified, in the “necessity” section of the affidavit, three (3) drug trafficking cells operating in the metropolitan Atlanta area, including the Gotti DTO and the Valencia DTO. The affidavit also stated that: in the past, the DTOs had a common SOS, but now, each had its separate SOS; there was “limited” communication between Gotti and Valencia when using the same SOS or when one DTO needed to “borrow” drugs from the other because of a shortage; the DTOs used some common resources, such as off-loading sites and stash houses; and there appeared to be common targets, including “Ulysses.”[5] (Id. at 7).

         The overlap in the investigations required discussion in the wiretap applications about the impact of each investigation on the necessity for the TIIIs for both the Valencia DTO and the Gotti DTO investigations. Mr. Horn stated that the two DEA groups conducting the investigations disagreed about the relative roles of Valencia and Gotti, and whether one was the customer of the other, and, if so, should priority be given to the investigation of the DTO that included the source of supply. (Horn Decl. ¶¶ 15-16). Mr. Horn and Mr. Rice recall at some point attending a joint meeting of both DEA groups to discuss issues arising out of the investigations. (Id. ¶ 18; Rice Decl. ¶ 28). According to Mr. Rice, the meeting focused on whether the target Ulysses was the same individual in each investigation. (Id.). Mr. Rice states that he ensured that there would be no overlap in the investigations and he left before any substantive discussion about the investigations. (Id.).

         The August 4, 2005, September 2, 2005, September 16, 2005, and September 30, 2005, TIII applications and supporting affidavits in the Gotti DTO investigation continued to identify Valencia as a target of the Gotti DTO investigation. The August 12, 2005, August 26, 2005, September 14, 2005, October 9, 2005, and November 10, 2005, TIII applications and supporting affidavits in the Valencia DTO investigation continued to identify Gotti as a target of the Valencia DTO investigation. The affidavits in both investigations provided similar discussions of the linkage between the Valencia DTO and Gotti DTO. (Order at 8-9).

         There were ongoing drug transactions and communications between Valencia and Gotti into the Fall of 2005. The October 9, 2005, TIII application and supporting affidavit in the Valencia DTO investigation for a new device obtained by Valencia relied, at least in part, on intercepts of Valencia who used the new device to communicate with Gotti. Those intercepts-obtained from monitoring a device used by Gotti-were the product of a wire intercept application presented by Mr. Rice. The last affidavit in support of a TIII application for the Valencia DTO investigation, dated November 10, 2005, referenced Gotti's arrest on October 12, 2005, and stated that the agents hoped to interview him about Valencia, but noted that they did not expect Gotti would have information about Defendant Montemayor. (Id. at 9).

         D. Pen Register Applications in the Valencia Investigation

         In late July and early August, 2005, Mr. Horn asked Mr. Rice to assist with the Valencia DTO investigation while Mr. Horn was out of the office. (Horn Decl. ¶¶ 36-41). On July 27, 2005, Mr. Rice, on Mr. Horn's behalf, signed and submitted to the magistrate judge a request for a pen register on a device used by Martinez. Mr. Horn prepared the pen register request. (Order at 10).

         On July 28, 2005, Mr. Rice worked with agents to prepare and submit another pen register and cell site request for the same device used by Martinez. Together with the July 27, 2005, pen register, agents received information about calls between Martinez and Montemayor discussing drug activities, as reflected in a later TIII wire intercept application and supporting affidavit in the Valencia DTO investigation. (Id.).

         On August 4, 2005, Mr. Rice again worked with agents to prepare a pen register and cell site request for a device used by Valencia. It appears that this request was not submitted to the magistrate judge. In both applications, Mr. Rice certified that he had discussed the applications with the investigating agent.[6] (Id.).

         E. Attorney Declarations

         Mr. Horn and Mr. Rice also provided declarations describing their roles in the investigations and the Narcotics/OCDETF Section of the USAO. Mr. Horn stated that the Section held a weekly meeting of all its attorneys, which Mr. Rice usually attended. The attorneys discussed pending investigations and cases, and, in 2005, Mr. Horn “openly shared” information about the Valencia DTO investigation. (Horn Decl. ¶ 7). Mr. Rice recalled that, at these weekly meetings, the attorneys shared only “general information” that “generally consisted of basic information . . . contained in discovery materials.” (Rice Decl. ¶¶ 33-34).[7]

         The attorneys also provide different accounts of their discussions about the investigations and preparing the TIII applications and supporting affidavits containing information about the other's investigation. Mr. Horn recalls talking with Mr. Rice about the tension between the DEA groups, whether targets were overlapping, and about the Valencia DTO investigation generally.[8] (Horn Decl. ¶¶ 6, 12, 14-19). Mr. Horn summarized an AUSA's responsibility when preparing a TIII application and the supporting affidavit, and supervising a wiretap investigation, including: ensuring the accuracy of the applications and supporting affidavits, complying with statutory requirements, and certifying under oath that he or she has reviewed and discussed the affidavit with the affiant. (Id. ¶¶ 11-12). Mr. Horn stated that, before including information about another AUSA's investigation in a TIII application and supporting affidavit, an AUSA discusses with the other AUSA the information to be included. He and Mr. Rice did so in the Valencia DTO and Gotti DTO investigations. (Id. ¶¶ 14, 19).

         Mr. Rice stated that he prepared TIII applications and supporting affidavits, including those used in this case, based mostly on templates which were modified in the “prior applications” and “necessity” sections to fit the specific facts of the case. (Rice Decl. ¶ 6). Mr. Rice denied having any “strategic discussions” with Mr. Horn regarding the Valencia DTO and Gotti DTO investigations. Mr. Rice asserts Mr. Horn provided him with text concerning the Valencia DTO investigation, which Mr. Rice then simply “cut and pasted” into the Gotti DTO TIII applications and supporting affidavits. (Id. ΒΆΒΆ 21-23). For the discussion about the Gotti DTO's connection to the Valencia DTO ...


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