Conclusion
For the reasons stated above, the Court denies defendant’s motion to suppress and his

motion for an evidentiary hearing [docket items 17-2, 18-1, 18-2].

MATTHEW F. KENNELLY
United States District Judge
Date: August 19, 2002

13



involved in criminal activity along with a drug dealer known as “Casper,” who Loll said had
been identified via prison and telephone records as Juan Martir. Martir was identified as being in
federal custody in Florida pending trial on drug charges. CS #1 reported that he had been told
that Martir was paying Medzianowski for protection of his drug trafficking operation, and that
Martir and Medzianowski were involved in robbing and extorting drug dealers, including Otero.
According to CS #1, he had been told that because Martir was in jail, Medzianowski was
assisting him in running drugs, by escorting Martir’s girlfriend and courier, Cindy Rodriguez,
from O’Hare Airport to a safe house in Chicago when she came to Chicago with drugs. Otero
had reported to CS #1 that Medzianowski had “fixed” criminal cases against gang members in
retum for money, and that in one specific case, Medzianowski had approached the arresting
officer and had offered him money to fix the case. Padilla had reported to CS #1 that he and
Medzianowski had robbed drug dealers together. CS #1 also provided details about phone
numbers used by Otero,

CS #2 was described as a person who had been incarcerated in the Miami Fedcral
Detention Center on drug charges from October 1997 through August 1998, when he was
released on bond to facilitate his cooperation with federal agents in Florida, who believed him to
be reliable. CS #2 was Martir’s cell mate at FDC Miami for a four month period in 1998; he
reported that during that time, Martir had confided in him to try to recruit him into his
organization. According to CS #2, Martir said that he was a high ranking official in a street
gang, responsible for transporting cocaine to Chicago with assistance from Medzianowski and
others. Martir told CS #2 that his girlfriend Cindy Rodriguez would bring kilogram quantitics of

cocaine to Chicago and that Medzianowski and his partner, a police officer named John, would



hit” in cooperating with prosecutors. For these reasons, and because the underlying statements
were quoted, the application’s characterization could not have been material to the issuance of
the Title ILI order.

The inclusion of information regarding a purported informant-policc officer relationship
between Martir and Medzianowski — a fact that Jarding alleges was intentionally omitted — would
not have undermined the showing of probable cause. As the government correctly notes, the
existence of such a relationship in no way precluded the existence of a parallel, illegitimate
relationship between the two men, nor would it have colored in any appreciably different way the
conversations disclosed in the application.

Jarding also attacks the application’s alleged omission of Martir’s concern that be had not
yet received a grant of immunity in connection with his cooperation with Florida prosecutors, a
fact that Jarding says would have helped explain the guarded language that Martir used on the
telephone. But the quoted excerpts mentioned this very fact. And assuming that a lack of proper
cmphasis of an included fact could give rise to a viable Franks issue, inclusion of a more specific
discussion of the fact that Martir did not have a signed deal and thus had no protection against
use of information he provided would not have in any way undercut the application’s showing of
probable cause.

Jarding next argues that the application omitted a fair discussion of the “dynamics” of
Martir’s cooperation, specifically that Martir was concerned about cooperating against his co-
defendants in the pending Florida case and was more desirous of cooperating against people in
Chicago through Medzianowski, who he served as an informant. This, Jarding claims, would

have served to explain why Martir was talking to Medzianowski about criminal activity in



expressed concern about giving up “Frankie,” indicating that he needed to provide
the prosecutors with a name to “collaborate [sic] one thing.” In response,
Medzianowski suggested (bat Martir provide the prosecutors with the name of
someone who was already dead.

- Discussion about Medzianowski taking care of Dennis (Martir’s son).

- A request by Medzianowski for advance information about who Martir was
naming to the Flonda federal prosecutors.

- Medzianowski reporting that Nelson Padilla was aware Martir was cooperating,
and discussing the possible risks to Martir and his relatives from Padilla.

- Martir suggesting that he was not planning to cooperate fully with the Florida
fedcral prosecutors but rather would hold back some information and names.

- Martir discussing the need to “tak[e] care of” a person who was a possible source
of information against them.

- Martir indicating that he wanted to keep the authorities from knowing about
Medzianowski, saying that he would avoid giving information about “those that 1
know I’m not to hit,” and telling Medzianowski, “You know I’m a friend for life.”

This information, taken collectively, was indicative of an illegitimate criminal relationship
between Medzianowski and Martir, as opposed to a legitimate police officer - informant
relationship.

Loll also reported that telephone records reflected that Medzianowski had been placing

telephone calls to some of the same people in Chicago as Martir, and specifically that

Medzianowski had been placing calls to people identified as criminal associates of Martir and



escort her to a “stash house.” Martir reported that his former girlfriend Yolanda (identified by
phone records, according to Loll, as Yolanda Navarro) maintained the stash house. He also told
CS #2 that he had a child with Yolanda whose name was Dennis. According to CS #2, Martir
said that Mcdzianowski had his own drug distribution organization through which he sold at the
wholesale and retail level cocaine given to him by street gang members in return for protection.
Martir was said to have told CS #2 that Medzianowski’s retail operation included a strect corner
at which $65,000 to $75,000 per day worth of crack cocaine was sold. CS #2 stated that Martir
had told him that before Martir’s incarccration, a man named Franky had transported cocaine to
Chicago, but that Franky was now working on his own due to Martir’s incarceration, including
supplying cocaine to Medzianowski at a discount. CS #2 also reported that Martir had told him
that Medzianowski had a crew of police officers who stole from drug dealers and that he and
Medzianowski were currently planning a robbery of a rival dealer, Martir also identified Nelson
Padilla as a gang member who was a close associate of Martir and Medzianowski. Finally,
Martir reported that he communicated with Medzianowski via the telephones at FDC Miami,
knowing that the conversations were tape recorded and thus trying to make it appear (hat he was
a legitimate source of information for Medzianowski. Agent Loll reported that there was no
evidence that CS #2 knew CS #1 or that he had known Martir before they were jailed together.

Loll reported that between July 7 and August 18, 1998, Martir had made 20 telephone
calls to Medzianowski from the FDC Miami telephones, all of which were consensually recorded
pursuant to Bureau of Prisons policy. Excerpts of certain conversations were set forth in the
application. They reflected, among other things, the following:

- Martir, who stated that was cooperating with federal prosecutors in Miami,



from Medzianowski’s telephones likely would reveal evidence of criminal activity. For these
reasons, the Court holds that the application established probable cause as required by the Fourth
Amendment and Title Lil.

3. Franks v, Delaware

Jarding argues that the Title II] application included misrepresentations and omitted
material facts. A warrant (hat is issucd as a result of material and deliberate false statements or
omissions cannot stand. See Franks v. Delaware, 438 U.S. 154, 165 (1978). To obtain a hearing
under Franks, a defendant must make a substantial preliminary showing that the warrant
application contained a false statement or material omission; that this was done knowingly or
with reckless disregard for the truth; that, in the case of a false statement, the affidavit does not
establish probable cause if the false statement is excised; and that, in the case of an omission, the
affidavit would not support a finding of probable cause if the omitted material were included. Jd.
at 155-56; United States v. McNeese, 901 F.2d 585, 593-94 (7th Cir, 1990); United States v.
Williams, 737 F.2d 594, 604 (7th Cir. 1984). See also United States v. Jackson, 65 F.3d 631, 635
(7th Cir. 1995).

Jarding argues that the application falsely claimed that Martir had assured Medzianowski
that he would not let the authoritics know that the latter was a corrupt police officer. Jarding is
correct that these words arc not contained in the conversation excerpts that were provided with
the application or in any other conversation identified to this Court. But the application's claim
was plainly a characterization, not a quote. And in this Court’s view, it was a fair and reasonable
characterization of Martir’s comments, taken in context, about being a “friend for life” of

Medzianowski and his understanding that there were persons that Martir knew he was “not to



‘Minute Order Form (06:92)

United States District Court, Northern District of [llinois

Namcat ined snd | Matthew F, Kennelly | Stn Soest
CASE NUMBER 01 CR 818 DATE 8/19/2002
CASE USA vs. William Jarding
TITLE

[In the following box (u) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY;

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) (ra) Brief in support of motion duc

(3) Q Answer bricf to motion due__. Reply to answer brief due

4 O Ruling/Hearing on set for, at

(5) o Status hearing[held/continued to] [set for/re-set for]on___—s set fora

(6) O Pretrial conference[held/continucd to] [set for/re-set for]on_——set for at_
(7) o Trial[set for/re-set for]on___at

(8) Oo [Bench/Jury trial] [Hearing] held/continued tot

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) Local Rule 41.1 CIFRCP41(a\(1) CO) FRCP4I(a)(2).

qo [Other docket entry] For the reasons set forth on the attached order, the Court denies defendant’s
motion to suppress and his motion for an evidentiary hearing (17-2,18-1,18-2),

(1) = [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

“Docuitent

No notices required. number of otives,

ua 2 3 2002

date docketed

Notices mailed by judge’s statf.

Notified counsel by telephone.

a | Docketing to mail notices,

Mail AO 450 form.

Copy to judge/magistrute judge.

date mailed notice
courtroom

oR deputy's
initials

Date/time received in
central Clerk’s Office mailing deputy initlals



In any event, because CS #1's information was corroborated by other information in the
application, the omission of his criminal history was not material.

Finally, the fact that Medzianowski had, some years carlier, been investigated for robbing
drug dealers without any charges being brought would have had no bearing whatsoever on the
existence of probable cause al the time of the Title III application, The omission of that fact was
completely immaterial.

The Court has also considered the cumulative cffect of the alleged misrepresentations and
omissions. Together, the mattcrs raised by Jarding do not undermine the basis for probable cause
established by the application. For these reasons, the Court determines that Jarding has failed to
make the showing necessary to entitle him to a hearing under Franks v. Delaware.

4, Necessity

As indicated earlier, before issuing an order authorizing a Title II intercept, the judge
reviewing the application must determine that “normal investigative procedures have been tned
and have failed or reasonably appear to be unlikely to succeed if'tricd or to be too dangerous.”

18 U.S.C. §2518(3)(c).. The purpose of this requirement is to ensure that wiretapping is not
routinely used as an initial step in criminal investigations. United States v. Giordano, 416 U.S.
505, 515 (1974). It does not, however, require that wiretaps be used “only as a last resort.”
United States v. Thompson, 944 F.2d 1331, 1340 (7th Cir. 1991). Accordingly, the government
is not required to show that it has exhausted other investigative alternatives in order to satisfy
§2518(3)(c), but rather “only that the success of other methods of investigation appear unlikely.”
Id. Common-sense rationales can satisfy the government’s burden. See United States v, Adams,

125 F.3d 586, 595-96 (7th Cir. 1997).

11



Chicago. Again, the Court disagrees. First of all, Jarding fails to show that Martir was not
cooperating in Florida; according to the goverment, his plea agreement had been signed in late
July 1998, before the Title Lil application was filed, and Martir was, at that point, cooperating
with the Florida prosecutors concerning his case there. Second, Jarding fails to show that this
alleged misplacement of emphasis in any way affected, or could have affected, the determination
of probable cause. It would not have colored in any appreciable way the inculpatory
conversations between Martir and Medzianowski, nor would it have undermined the import of
the other information supplied to support of the application.

Jarding also argues that the government falsely characterized Medzianowski’s comment
about naming dead persons as a proposal to give false information, rather than as the “joke” that
he says it was. But the actual passage was quoted in context in the application, thus the
reviewing judge was able 1o draw his own conclusions. As noted earlier, the Court believes that
Medzianowski’s comment is fairly read as a suggestion that Martir provided false information to
the authorities in order to protect their criminal associates.

The Court also rejects Jarding’s argument that the omission of CS #1's criminal history
was material to the finding of probable cause. First of all, there is no evidence that the
government had actual knowledge of CS #1's criminal history. But even assuming that it did, or
that it recklessly disregarded his criminal history, the omission was not material. The application
identified CS #1 as a street gang member, and it is relatively apparent to any reader familiar with
the criminal justice system — including, of course, Chief Judge Aspen — that he therefore was
likely to be regularly engaged in criminal activity. Under the circumstances, whether CS #1 had

in the past been convicted of such activity was not significant to the showing of probable cause.

10



Medzianowski.

In arguing that probable cause was lacking, Jarding attempts to compartmentalize the
various aspects of the application, analyzing each separately in an attempt to show that it did not
establish probable cause. That is not the correct approach. See, e.g., Leisure, 844 F.2d at 1354-
55. Though it is likely that the statements of either of the government’s informants, standing
alone, would not have supported a finding of probable cause, those statements did not stand
alone. See United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996). First of all, the
statements of CS #1 and CS #2 corroborated each other with respect to Martir’s involvement in a
drug trafficking operation, Medzianowski’s illicit assistance to that operation, identification of
the criminal associates of Martir and Medzianowski, and the involvement of the two men in
other criminal activity (namely, robberies of drug dealers). Second, the phone records previously
discussed reflected a steady flow of communications between Medzianowski and persons
identified by the confidential sources and in the Martir-Medzianowski conversations as criminal
associates of the two; this likewise supported an inference of ongoing criminal activity in which
Medzianowski was participating. See, e.g., United States v. Gonzalez, 866 F.2d 781, 787 (Sth
Cir. 1989); United States v. Shipp, 578 F. Supp. 980, 986 (S.D.N.¥. 1984). And third, the
conversations between Martir and Medzianowski were indicative of an illicit relationship,
particularly those discussions that were reasonably interpreted as suggestions that Martir should
provide incomplete or inaccurate information to the Florida federal prosecutors and that Martir
would protect Medzianowski from exposure. All told, the evidence described in Loll’s affidavit
was more than sufficient to reveal a reasonable probability of criminal activity involving Martir,

Medzianowski, and others, as well as a reasonable basis to believe that interception of calls made



2. Probable cause

The standard for probable cause under Title II is identical to that under the Fourth
Amendment. F.g., United States v. Leisure, 844 F.2d 1347, 1354 (8th Cir. 1988). Probable
cause exists when the totality of the circumstances reveals a reasonable probability of criminal
activity. United States v. Levy, 990 F.2d 971, 973 (7th Cir. 1993); United States v, Dorfman, 542
F. Supp. 345, 359 (N.D. Ill. 1982), aff'd sub nom. United States v. Williams, 737 F.2d 594 (7th
Cir. 1984), The affidavit submitted in support of the Title LU application must contain facts
sufficient to warrant a person of rcasonable caution to belicve that criminal activity is afoot and
that evidence of that activity will be captured via the intercept. 18 U.S.C. §2518(3);
Dorfman, 542 F. Supp. at 359. The Court must examine at the totality of the circumstances, see
Mlinois v. Gates, 462 U.S, 213, 230-32 (1983), and should not treat as a separate universe each
aspect of the showing made in the application. Leisure, 844 F.2d at 1354-55, And the possibility
of an innocent explanation for the activity described in the application does not negate probable
cause, so long as there is a reasonable probability of criminal activity. Levy, 990 F.2d at 973.

Looking at the totality of the circumstances described in the affidavit of FBI Agent
Patrick Loll submitted in support of the application, there was probable cause to believe that
Medzianowski was involved in criminal activity within the scope of 18 U.S.C. §2516 and that
interception of his communications would capture evidence of that activity.

Loll’s affidavit described information the government had received from two confidential
sources, identified as CS #1 and CS #2. CS #1 was identified as a strect gang member who had
previously provided reliable information. CS #1 reported information that he had leamed from

two individuals, Rolando Otero and Nelson Padilla. According to CS #1, Medzianowski was



Medzianowski’s case denied the motion, though without a written ruling and evidently without a
contemporaneous oral explanation of the grounds for the denial. For the reasons set forth below,
the Court rejects Jarding’s arguments and denies his motion to suppress.
1, Introduction

Title TIT gencrally prohibits interception of wire and electronic communications except as
authorized under the statute. 18 U.S.C. §2511. Section 2518 provides the requirements that
govern applications for and entry of orders authorizing intercepts. The application must be made
in writing under oath and must include, among other things, “full and complete statement[s]” of
the facts and circumstances relied on by the applicant to justify his belief that an order should be
issued, whether other investigative proccdures have been tried and failed or why they reasonably
appear to be too dangcrous or unlikely to succeed if tried, and the facts concerning all previous
applications made to any judge for authorization to intercept communications involving any of
the persons, facilities, or places described in the application. /d. §2518(1). Before granting
authorization, the judge must determine that there is probable cause to believe that a person is
committing, has committed, or is about to commil one of the offenses listed in 18 U.S.C. §2516;
that there is probable cause to believe that communications concerning that offense will be
obtained through the interception; that normal investigative procedures have been tried and have
failed or reasonably appcar to be too dangerous or unlikely to succeed if tried; and that there is
probable cause to believe that the facilities from which the communications are to be intercepted
are being or are about to be used in connection with the offense, or are listed to or commonly

used by a person identified in the application. Id. §2518(3).



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA

vs. Case No. 01 CR 818

ween

WILLIAM JARDING

DOCKETED

AUG
MEMORANDUM OPINION AND ORDER ® 3 2002

MATTHEW F. KENNELLY, District Judge:

Defendant William Jarding is charged with possession and transfer of stolen ammunition
in violation of 18 U.S.C. §922(j) and with having conspired with Joseph Medzianowski, then a
Chicago police officer, to receive, possess, and transfer stolen ammunition in violation of 18
U.S.C, §371. Jarding was a Cook County correctional officer at the time of the alleged offenses.
The charges arisc in part from telephone conversations between Jarding and Medzianowski that
were intercepted as a result of an order issued by then-Chief Judge Marvin Aspen under Title IT
of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C, §2518, authorizing
interception of communications to and from telephone numbers subscribed to by Medzianowski.
Medzianowski was prosecuted separately for these and other offenses.

Jarding has moved to suppress the fruits of the Title III intercept. He argues that the
application submitted in support of the Title III intercept failed to establish probable cause; failed
to establish “necessity” for the intercept as required by Title IT; contained knowing material
misrepresentations supporting the claim of probable cause; and knowingly omitted material facts
that would have undermined probable cause. Medzianowski made a similar motion in his

separate case, which Jarding has adopted in its cntirety. ‘The judge presiding over

a4



In this case, the government established its burden of showing that normal investigative
methods reasonably appeared unlikely to succeed. There was a rcasonable basis to believe that
interviewing the alleged participants in the criminal enterprise would not prove fruitful and
“would both alert them (and possibly others higher up in the conspiracy) or would require grants
of immunity.” Adams, 125 F.3d at 595, Martit, a possible candidate for a direct approach
because he was already facing federal criminal charges, had demonstrated on the previously
recorded conversations an ongoing loyalty to Medzianowski that he was evidently willing to
preserve despite the fact that he likely would have stood to benefit in terms of his ultimate
sentence in Florida if he had disclosed his criminal activities with Medzianowski. Surveillance
might have disclosed some contacts between the conspirators, but it likely would have shown
nothing more than their association — a fact already established by the phone records the
investigators had obtained — as contrasted with the evidence of knowledge and participation that
their conversations might disclose, Issuance and execution of search warrants would have
disclosed the government’s investigation of the criminal enterprise, and in any event there was no
reason to believe that evidence of a conspiracy — beyond mere possession of narcotics — would
havc been revealed via search warrants. And there was no basis to believe that the government
could recruit any participant as a confidential source — and again, an unsuccessful attempt to do
so would have disclosed the existence of the investigation and allowed the conspirators to
attempt to conceal their involvement.

Based on the application and common sense, these and other normal investigative
procedures reasonably appeared to be unlikely to succeed. The Court rejects Jarding’s argument

that the Title III application failed to establish the requisite necessity for wiretapping.

12