At least two other district courts have also found Danovaro more persuasive than Arreguin. See United States v. Coles, No. 05-440, 2007 WL 2916510, at *2 (E.D.Pa. Oct.4, 2007) ("The Arreguin court's analysis has the appeal of simplicity, as it confines its assessment to the statutory text and draws its conclusions based on what it regards as clear Congressional intent. We do not agree with the Eastern District of California, however, that Congressional intent on this question is so self-evident. Moreover, we are concerned that the Arreguin court and the Defendant, to the extent he urges the adoption of its analysis, embraces a sort of formalistic approach to Title III that lias been rejected by the Third Circuit."); United States v. Freeman, No. 06 205-03, 2008 WL 879966, at *2-3 (E.D.Pa. Mar.31, 2008) ("Like the court in Coles, I find it unwise to rely solely on the textual peculiarities of Title III to conclude that Congress's intent was that the informer's privilege not apply to disclosures pursuant to ยง 2518(9).
At least two other district courts have also found Danovaro more persuasive than Arreguin. See United States v. Coles, No. 05-440, 2007 WL 2916510, at *2 (E.D.Pa. Oct.4, 2007) ("The Arreguin court's analysis has the appeal of simplicity, as it confines its assessment to the statutory text and draws its conclusions based on what it regards as clear Congressional intent. We do not agree with the Eastern District of California, however, that Congressional intent on this question is so self evident.
After a thorough review of the arguments and evidence, we denied his motion. United States v. Coles, No. 05-440, 2007 WL 2916488, at *1 (E.D. Pa. Oct. 4, 2007). Now, Defendant asserts that there was a different Title III error because the May 16, 2005, authorization for interception of wire communications signed by Deputy Assistant Attorney General Joseph F. Blanco failed to identify Defendant's phone by its UFMI number; it only approved the interception in reference to Defendant's telephone number-(267) 784-3964-and International Mobile Subscriber Identifier (โIMSI numberโ)-316010002062652.
Id.Another significant district court decision on this issue is United States v. Coles , 2007 WL 2916510 (E.D. Pa. Oct. 5, 2007). There, the court noted that while "[t]he Arreguin court's analysis has the appeal of simplicity," it did not agree "that Congressional intent on this question is so self-evident."
Id. See United States v. Brown, No. 12-CR-243, 2013 WL 1308291, at *3-4 (M.D.Pa. Mar. 28, 2013); United States v. Scott, 673 F.Supp.2d 331, 340-41 (M.D.Pa. 2009); United States v. Coles, No. 05-CR-440, 2007 WL 2978346 (E.D.Pa. Oct. 5, 2007); but see United States v. Stanton, No. 11-CR-57, 2013 WL 529930, at *7-8 (W.D.Pa. Feb. 11, 2013); United States v. Lashley, No. 09-CR-307, 2011 WL 5237291, at *11-12 (E.D.Pa. Nov. 3, 2011); United States v. Harris, No. 07-CR-355, 2008 WL 3545827, at *13 (W.D.Pa. Aug. 12, 2008); United States v. Flood, No. 04-CR-36, 2007 WL 1314627, at *2 (W.D.Pa. May 4, 2007). In this case, the Government argues that bifurcation of Count V is inappropriate because the evidence of Mr. Handy's prior conviction would nevertheless be admissible on the controlled substance-related counts as evidence relevant toward proving his identity.
Title III interceptions are often sought to aid investigations into large scale conspiracies, including RICO conspiracies. See, e.g., Heilman, 377 F. App'x at 174-75; United States v. Gray, 521 F.3d 514, 528 (6th Cir. 2008); United States v. Luong, 215 F. App'x 639, 645-46 (9th Cir. 2006); United States v. Miller, 116 F.3d 641, 660 (2d Cir. 1997); United States v. London, 66 F.3d 1227, 1232 (1st Cir. 1995); United States v. Farmer, 924 F.2d 647, 652 (7th Cir. 1991); United States v. Van Horn, 789 F.2d 1492, 1497-98 (11th Cir. 1986); Vento, 533 F.2d at 850; Armocida, 515 F.2d at 35; United States v. Coles, No. 05-440, 2007 U.S. Dist. LEXIS 74571, at *9-14 (E.D. Pa. Oct. 4, 2007). Unlike other crimes which "come[] to an end upon the capture of the criminal," conspiracies present "special dangers" that provide the Government with "more leeway in its investigative methods."
Following Busic, courts in this circuit have opted to bifurcate the counts for trial when evidence of prior convictions was not admissible as to the other counts. See, e.g., United States v. Coles, No. 05-440, 2007 WL 2978346 (E.D. Pa. Oct. 5, 2007). Conversely, courts have refused to either sever or bifurcate when evidence of the prior offenses could be admitted at trial on the other counts.
Title III prevents electronic surveillance from being "routinely employed as the initial step in criminal investigation." Id.; see United States v. Coles, 2007 U.S. Dist. LEXIS 74571 at *10 (E.D. Pa. Oct. 4, 2007). To satisfy the "necessity" requirement, a "factual predicate" must exist in the Government's affidavit "to support a finding that normal investigative procedures are unlikely to be successful."
Consequently, Arreguin concluded that because Congress did not expressly preserve the informer's privilege, it did not intend for this privilege to apply to disclosures required by ยง 2518(9).Id. at 1062. Finally, in United States v. Coles, Crim. A. No. 05-440, 2007 U.S. Dist. LEXIS 74558 (E.D. Pa.) (Surrick, J.), the Government produced wiretap applications and supporting affidavits, but redacted information regarding the identity of the confidential informants referenced in the affidavits. In addressing the propriety of this redaction, the Coles court disagreed with theArreguin court's conclusion that Congress's intent was obvious from its failure to mention the informer's privilege in Title III.