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United States v. Flynn

United States District Court, D. Massachusetts

December 12, 2018

UNITED STATES OF AMERICA
v.
RYAN FLYNN, Defendant.

          ORDER AND MEMORANDUM ON DEFENDANT'S MOTION TO SUPRESS (Docket No. 56)

          TIMOTHY S. HILLMAN DISTRICT JUDGE

         Ryan Flynn (“Defendant”) moves this Court to suppress the evidence obtained as a result of the interception of wire communications and the search of Defendant's home. For the reasons stated below, Defendant's motion (Docket No. 56) is denied.

         Background

         In 2016 and early 2017, Police believed Vito Nuzzolilo was involved in dealing large quantities of heroin and cocaine in and around Worcester, Massachusetts. Before obtaining a wiretap from this Court, the Government had investigated Nuzzolilo for almost a year. (Docket No. 61-2 ¶ 20) (“Wiretap Aff.”). During this period, the Government utilized a variety of investigative methods including: physical surveillance, audio and video surveillance, telephone toll records, pen register and trap-and-trace information, telephone subscriber information, GPS tracking, statements of confidential sources, monitored and/or recorded phone calls, and queries of law enforcement records and intelligence databases. Id. ¶ 17.

         Investigators learned that Nuzzolilo primarily distributed drugs from his top-floor apartment on Grafton Street in Worcester (“Grafton Apartment”). (Docket No. 61-1 ¶¶ 6-7) (“Apt. Aff.”). Further, Nuzzolilo and his associates accessed the Grafton Apartment from a rear entrance via a parking lot. Wiretap Aff. ¶ 65. This parking lot was fenced and/or walled on all sides, and Nuzzolilo maintained video surveillance of the area. Id.; Apt. Aff. ¶ 10.

         The confidential informant was able to learn that Nuzzolilo had sources in New York and Boston. Wiretap Aff. ¶ 61. In addition, the informant made a number of controlled purchases. For instance, on July 20, 2016, the informant met with Nuzzolilo at the Grafton Apartment and purchased 10 grams of heroin. Id. ¶ 28. On August 5, 2016, the informant made another purchase of 30 grams of heroin from Nuzzolilo's partner, Kristin Little. Id. ¶ 30-33. On December 6, 2016, the informant again purchased 20 grams of heroin from Nuzzolilo. Id. ¶ 37-39. Finally, on January 30, 2017, the informant purchased another 20 grams of heroin from Nuzzolilo. Id. ¶ 40-43.

         In April 2017, because investigators lacked detailed knowledge of Nuzzolilo's sources of supply, the Government sought and obtained a wiretap authorized by this Court on Nuzzolilo's cell phone to learn more about how and from whom he acquired drugs.

         The Government alleged that the cooperation of the informant alone, or in conjunction with other investigative means short of the interception of electronic and wire communications, would not be sufficient to meet the goals of the investigation. Id. ¶ 61. The Government noted that although the informant bought drugs from Nuzzolilo, the informant was unlikely to fully infiltrate or understand the operations of the wider drug trafficking organization. Id. For instance, the informant was “not privy to information such as the actual identify of NUZZOLILO's sources of supply, the distribution network of the Target DTO, or the organization structure of the Target DTO.” Id.

         In addition to the inability of the informant to provide more information about Nuzzolilo's supply chain, the affiant noted difficulties conducting physical surveillance and related investigative techniques at the Grafton Apartment. Wiretap Aff. ¶¶ 65-71; 92-93. According to the Government, the layout of the Grafton Apartment and its enclosed parking lot-coupled with Nuzzolilo's video surveillance of the area-meant that efforts to conduct surveillance of those accessing the parking lot would have likely led to detection. Id. The Government argued, however, that “continued surveillance done in conjunction with electronic surveillance” would “lead to the development of evidence sufficient to prosecute multiple members” of the enterprise. Id. ¶ 71.

         Communications intercepted pursuant to the wiretap revealed that Nuzzolilo communicated with drug customers, often using coded language to refer to drugs. See, e.g., Apt. Aff. ¶¶ 19, 23, 41. Further, Nuzzolilo communicated with drug suppliers. Id. ¶¶ 25, 26, 28, 29, 33-35, 43. Interceptions revealed that the Defendant was one of these suppliers. See generally Docket No. 61-3 (“Flynn Aff.”). Defendant used a phone subscribed in the name Reid Marinelli. Id. ¶ 8. Agents confirmed that the communications were in fact from Defendant when “Marinelli” stated that he wanted to see Nuzzolilo on April 14, 2017 and updated Nuzzolilo on his whereabouts. Agents shortly thereafter observed the Defendant meeting with Nuzzolilo in a car outside of the Grafton Apartment. Id. ¶¶ 10-14.

         The Government developed a substantial amount of evidence from the wiretap demonstrating that Defendant supplied drugs to Nuzzolilo including:

• In April 2017, Nuzzolilo owed a substantial drug debt to Defendant, and Defendant made plans to collect the money from Nuzzolilo. Id. ¶¶ 10-13.
• On April 14, 2017, Defendant traveled to the Grafton Apartment, presumably in order to collect a portion of the money Nuzzolilo owed him. Id. ¶ 14.
• On April 22, 2017, Nuzzolilo informed Defendant that he was in the process of collecting outstanding drug debts and would soon have money to pay Defendant. Two days later, however Nuzzolilo informed Defendant that he needed more time to collect the money that he owed Defendant. Id. ¶¶ 15-16.
• On April 27, 2017, Nuzzolilo told Defendant that he had a lot of money (“paperwork”) and drugs (“stuff”). Nuzzolilo told Defendant that he was trying to sell the drugs in order to generate more money to pay Defendant. Defendant replied, “I just got people breathing down my neck buddy.” Id. ¶ 17.
• On April 30, 2017, Nuzzolilo informed Defendant that he was “almost finished” and that he needed to see Defendant the next day. In addition, Nuzzolilo asked Defendant to “be ready for me”-presumably asking Defendant to be prepared to re-supply Nuzzolilo. Defendant replied, “Ready when you are.” Id. ¶ 19.
• The next day, Nuzzolilo called Defendant to discuss an “issue” regarding “Thommy Walker, ” a “kid that works with me . . . up in Maine.” Id. ¶ 20. Nuzzolilo was apparently referring to Thomas Walker, who had been arrested on April 27, 2017 after leaving the Grafton Apartment and stopped with approximately 1.9 ounces of cocaine in his car. Apt. Aff. ¶¶ 15-18. During an intercepted call before this stop, Nuzzolilo agreed to provide two ounces of cocaine (“two onions”) to Walker and directed Kristin Little to distribute the cocaine to Walker. Id. ¶ 16. On May 1, 2017, when Nuzzolilo called Defendant, he explained that he had given Walker “two onions” and was unable to collect $4, 000 that he expected to receive from Walker due to Walker's arrest. Flynn Aff. ¶ 20. Defendant replied, “I need some paperwork from you so what are we gonna do”, and Nuzzolilo replied that Walker's arrest was “Fucking up my timetable.” Nuzzolilo further stated, “I got plenty: I got 50 racks I been sitting on, I just gotta go burn them off. Fire. I'm all out of the whi-I got plenty of one but nothing of the other. That's my issue.” According to the Government, Nuzzolilo was indicating that he had $50, 000 worth of heroin (“50 racks” of “fire”) that he could sell to generate money to pay Defendant, but he was seeking to acquire additional cocaine (“the whi” and “the other”). Defendant responded, “it's been so long that my people been up my ass. I'm actually even giving them some of my own paperwork and you know I got bills due today.” Apparently, Defendant's suppliers were applying pressure and he had been using his own money (“paperwork”) to cover Nuzzolilo's debts. Defendant further directed Nuzzolilo to “give me what you can for today and then we'll see what we can do. I'll see if I can make something happen for you but at this point, it may or may not happen.” Defendant was presumably telling Nuzzolilo to pay him today and that Defendant would attempt to secure additional cocaine for Nuzzolilo. Id.
• Later the same day, Nuzzolilo informed Defendant that he had $6, 000 (“6 racks”) and was in the process of collecting more to be paid to Defendant that night. Id. ¶¶ 22-23.
• Around the same time, Nuzzolili was telling certain customers that he had run out of cocaine. Id. ¶ 26. For instance, Nuzzolilo replied to one apparent customer, “I'm only with Carlos at the moment. I will not see the lady until later.” Presumably, Nuzzolilo was indicating that he only had heroin (“Carlos”) and would not have cocaine until later that day (“I will not see the lady until later”). Id.; see also Id. ¶ 26 n.8.
• Later on May 1, 2017, GPS data showed that Nuzzolilo traveled to almost the exact location of Defendant's home. After leaving Defendant's home, Nuzzolilo traveled to his studio at 75 Webster St. in Worcester, Massachusetts (the “Band Room”). That evening, Nuzzolilo indicated that he now had a supply of cocaine at the Band Room. Id. ¶ 26(b).
• Also on May 1, 2017, as well as the following day, Nuzzolilo complained to Defendant about the quality of the cocaine that he obtained from Defendant. Id. ¶¶ 27-28. Accordingly, Nuzzolilo and Defendant discussed the return of the product and Defendant agreed to supply Nuzzolilo with new product. Defendant ensured that his source would “prepare right in front of me and show me there's nothing wrong with it.” Id. ¶ 28.
• On May 4, 2017, GPS data indicated that Nuzzolilo again traveled within 1, 000 feet of Defendant's home in Leicester, Massachusetts. Id. ¶ 29.
• After this trip, Nuzzolilo sent a text to Kristin Little that referenced Defendant's nickname (“Big Boy”) and informed her that he was ...

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