United States v. Apodaca
United States v. Agustin Flores APODACA and Panfilo Flores Apodaca
Attorneys
*25Andrea Goldbarg, Jason James Ruiz, Michael Waits, US Department of Justice, Washington, DC, for Plaintiff., Elita C. Amato, Law Offices of Elita C. Amato, Esq., Arlington, VA, Jasmin Mize, Joseph D. King, King, Campbell & Poretz, Alexandria, VA, Rene A. Sotorrio, Law Offices of Rene A. Sotorrio, P.A., Coral Gables, FL, Robert A. Feitel, Law Office of Robert Feitel, Washington, DC, for Defendants.
Full Opinion (html_with_citations)
BERYL A. HOWELL, Chief Judge *26This is the third opinion issued in this case. See United States v. Apodaca ("Apodaca I "),
The pending motions are addressed in the following order: Part I discusses the defendants' four motions seeking suppression of intercepted BlackBerry text messages and related discovery, ECF Nos. 33, 40, 41, and 45; Part II discusses the government's motion seeking reconsideration of the use at trial of certain transcripts of intercepted BlackBerry messages, ECF
*27No. 95; and, finally, Part III discusses Agustin's motion for in camera inspection of grand jury minutes, ECF No. 130.
The general factual and procedural background in this case has been amply described in Apodaca II , --- F.Supp.3d at ----,
I. DEFENDANTS' CHALLENGES TO TITLE III INTERCEPTED COMMUNICATIONS
As part of a multi-prong challenge to the government's introduction of Title III intercepts at trial, the defendants have jointly moved to suppress "any and all communications intercepted by the Government pursuant to ... Title III," on the ground that the orders authorizing the intercepts were "facially insufficient." Defs.' Mot. Suppress T. III Intercepts at 1.
A. Defendants' Joint Motion to Suppress Title III Intercepts
The government conducted a 22-month wiretap investigation between February 2013 and December 2014, during which the government submitted and obtained 27 applications for electronic intercepts and ultimately intercepted "thousands of pertinent electronic communications (Blackberry Messenger text messages ['BBMs'] )" from "over [59] different devices." Gov't's Opp'n Defs.' Mot. Suppress T. III Intercepts ("Gov't's First Opp'n T. III Intercepts") at 2-3, ECF No. 68. The first wiretap application and order targeted the electronic communications of Panfilo, who was using "Target Device 1." Id. at 3-4. Over the course of the investigation, three additional BlackBerry devices used by Panfilo were subject to court-authorized interception. Id. In total, "[t]he government intercepted approximately 12,500 pertinent electronic communications between Panfilo and other [alleged] co-conspirators." Id. at 4. Apparently, these pertinent BBMs of Panfilo's were intercepted during thirteen months in 2013 and 2014: February through October, 2013, and May, June, July, and December 2014. See Gov't's Opp'n Defs.' Mot. Compel Discovery ("Gov't's Opp'n Defs.' Discovery Mots.") at 3-4, ECF No. 44 (listing "periods of time" in which intercepted communications "are between Panfilo and various co-conspirators"); Defs.' Suppl. Reply Supp. Mot. Suppress T. III Intercepts ("Defs.' Second Reply Mot. Suppress T. III Intercepts") at *284 n.1, ECF No. 92-2 (noting that Panfilo's Blackberry "was not intercepted during the period after October 2013 except for 30 day periods on or about May, July, and December 2014"). Agustin was imprisoned during the interceptions, and none of his communications were intercepted. Gov't's First Opp'n T. III Intercepts at 4.
The government's initial application, seeking to intercept electronic communications over Target Device # 1 was granted by the District Court in the Western District of Texas, on February 19, 2013. See id. at 2-3; see also id. , Ex. 1, Application for Interception for Electronic Communications ("Initial T. III App.") ¶ 2, ECF No. 68-1; id. , Ex. 2, Order Authorizing the Interception of Electronic Communications ("Initial T. III Order") at 3-7, ECF No. 68-2. That first application and order, as well as the twenty-six that followed, all contained "the same information-a Government attorney's name in the application and order, and reference [to] the appropriately designated [Department of Justice ('DOJ') ] official," as is required by
The government does not dispute that wire communications in the form of AMR files were intercepted, along with the court-authorized electronic communications. To deal with the occurrence of unauthorized intercepted wire communications, monitors at the reviewing site in El Paso, Texas were directed, in accordance with the instructions in the government's applications and orders, promptly to minimize such communications. Gov't's Second Opp'n T. III Intercepts at 4; see also, e.g. , Initial T. III App. at 8; Initial T. III Order at 6-7, ECF No. 68-2. The government instructed monitors not to listen to any unauthorized intercepted wire communications in both verbal instructions and in signs taped to monitors' computers that stated "Do Not Listen to Any Audio Files." Jt. Stm. Discovery ¶ 5. At trial, the government plans to use as evidence only "lawfully intercepted electronic communications." Gov't's Opp'n Defs.' Discovery Mots. at 3-4.
The government has dribbled out information regarding the wiretaps, prompting over four rounds of briefing and two status conferences to clarify the basic facts related to this aspect of the government's *29investigation.
Specifically, the defendants reason that "the Government knew-or should have known" from the outset of the investigation that the wiretaps "would inevitably" capture both electronic and wire communications.
*30
At the outset, the government concedes that the seven AMR files improperly marked as pertinent must be suppressed. Gov't's Fourth Opp'n T. III Intercepts at 5 (citing United States v. Suggs ,
1. Relevant Statutory Provisions
When first enacted, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified at
In particular, as relevant to the instant suppression motion, Title III provides that an order "authorizing or approving the interception of any wire, oral, or electronic communication" must specify, inter alia , "the identity of the agency authorized to intercept the communications, and of the person authorizing the application."
*32
2. Analysis
The defendants argue that the wiretap orders at issue in this case are "insufficient on [their] face" for failing to identify the appropriate high-ranking DOJ official authorizing the interceptions. See Defs.' Mot. Suppress T. III Intercepts at 1, 4 (internal quotation marks and citation omitted). In advancing this argument, the defendants rely on Scurry , in which the D.C. Circuit held that "a [Title III] wiretap order is 'insufficient on its face,'
At issue in Scurry were wire communications.
As noted, the defendants' evolved position, which relies heavily on legislative history, is that the government should have sought and obtained authorization to intercept both wire and electronic communications. See Defs.' Fourth Reply Mot. Suppress T. III Intercepts at 8-10; Defs.' Third Reply Mot. Suppress T. III Intercepts at 1-2. In particular, the defendants point to a House Judiciary Committee Report on ECPA, stating that: "The Committee understands that [DOJ] will apply for a court order under the 'wire' standards in cases where a tap may intercept mixed wire and electronic communications," and "[a]s long as the wire standards are followed a single court order should suffice to authorize the interception of both wire and electronic communications involving the same lines of instruments."
In short, this House Judiciary Committee Report language may bear on situations in which the government is actually seeking to capture both electronic and wire forms of communications, but this was not the government's intent here. The government only began collecting these AMR files in this case because of "a technological limitation." Gov't's' Second Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts ("Gov't's Third Opp'n T. III Intercepts") at 14, ECF No. 101-2. Indeed, as the government explains, BlackBerry was "unable to discern [whether] a particular BBM contain[ed] an embedded wire communication unless it manually reviewed the data for audio files, and concluded the audio files included the human voice," which BlackBerry declined to do. Gov't's Second Opp'n T. III Intercepts at 4; see also Status Conf. Hr'g (rough ) Tr. (Aug. 17, 2017) at 70-79. As a result, BlackBerry "automatically" forwarded data, without separating the electronic from the wire communications, to the FBI Data Intercept Technology Unit ("DITU") server, which then "automatically forwarded the messages in this case to specialized equipment located at the FBI El Paso Division, where it was reviewed by the monitors." Gov't's Second Opp'n T. III Intercepts at 3. To address this technical challenge of disaggregating AMR files from the court-authorized electronic intercepts, the government took steps to ensure monitors minimized and did not listen to any unauthorized AMR and other audio files. See Gov't's Second Opp'n T. III Intercepts at 4; Jt. Stm. Discovery ¶ 5 (discussing verbal instructions and signage on minimization).
The government contends that "simply because it is technically possible to intercept wire communications concurrently with electronic communications," law enforcement should not be required to seek authority to intercept both under the wire standard. Gov't's Fourth Opp'n T. III Intercepts at 4. The perverse result of such a requirement would be that some communication technologies might be put outside the reach altogether of Title III surveillance or, alternatively, more intrusive surveillance may ensue. For example, if the government seeks, and only has probable *35cause sufficient, to intercept electronic communications, but due to the unique technology involved, the targeted electronic communications are transmitted simultaneously with wire communications, the government would be unable to obtain court authorization for the interception, at least or until, sufficient probable cause were developed to meet the standard for wire communication interceptions as well. Likewise, where the government may be able to establish probable cause to intercept wire communications, but only wants to obtain electronic communications, the government would have to seek authority for a hybrid wiretap, leading to more expansive surveillance, with concomitant privacy intrusions for the targets of the surveillance and the increased burden on the government to manage surveillance of multiple communication formats. This simply makes no sense as a policy matter, and is not required by the wiretap statute, which instead expressly contemplates using minimization procedures to address the capture of unauthorized communications, either in terms of format or content.
The Court concludes that the government took appropriate steps to minimize wire communications, which were intercepted due to the technology subject to surveillance, and that the Title III applications and orders at issue are facially valid since they sought only the interception of electronic communications and, consequently, reflect the appropriate authorizing government attorney's approval.
The final issue raised by the defendants is whether the interception of seven AMR files, which the government concedes are wire communications and therefore were improperly marked "pertinent," requires suppression of the entire wiretap. See Defs.' Second Reply Mot. Suppress T. III Intercepts at 2; Gov't's Fourth Opp'n T. III Intercepts 4-5. As noted, the government reports that approximately 170 AMR files were intercepted, 163 of which were minimized and seven of which were "erroneously marked pertinent." Gov't's Second Opp'n T. III Intercepts at 4. The monitors were instructed "not to open or listen to an AMR files because they did not have authorization to intercept wire communications."
The statutory requirement that government surveillance of communications "minimize the interception of communications not otherwise subject to interception under this chapter,"
The proper remedy here is to suppress only those seven AMR files erroneously marked pertinent, similar to situations in which partial suppression is ordered when the government has failed to minimize certain intercepted communications properly. Gov't's Fourth Opp'n T. III Intercepts at 5 (citing Suggs ,
Accordingly, the defendants' motion to suppress the entire Title III intercept is DENIED and only the seven AMR files erroneously marked pertinent must be suppressed.
B. Defendants' Motion to Compel Discovery
Both defendants have moved, pursuant to Federal Rule of Criminal Procedure 16, to compel discovery of material related to the Title III wiretaps. See generally Agustin's Discovery Mot.; Panfilo's Discovery Mot.; Panfilo's Am. Discovery Mot. Specifically, *37the defendants seek to compel the government's production of two groups of intercepted communications: (1) "[m]inimized interceptions of Defendant Panfilo" ("Panfilo's minimized intercepts"); and (2) "[a]ll interceptions from the Title III investigation, from all target devices, including pertinent and minimized communications," and including intercepts between alleged co-conspirators ("co-conspirator intercepts"). Jt. Stm. Discovery ¶ 7; see also Panfilo's Reply Gov't's Opp'n Defs.' Mots. Compel ("Panfilo's Reply Discovery Mot.") at 3, ECF No. 58. The government has already produced to the defendants the intercepts from the BlackBerry devices used by Panfilo and the underlying applications and orders for those intercepts, as well as the "applications, affidavits, and orders related to the interception of target devices utilized by individuals other than Defendant Panfilo," Gov't's Opp'n Defs.' Discovery Mots. at 3-4, but not any minimized communications or pertinent intercepted communications of only co-conspirators, Panfilo's Reply Discovery Mot. at 2-3.
The defendants seek both Panfilo's minimized intercepts and co-conspirator intercepts in order to "argue that the Government improperly minimized the communications ... and search for exculpatory information." Jt. Stm. Discovery ¶ 7.
*381. Relevant Legal Standard
" Rule 16 is a discovery rule designed to protect defendants by compelling the prosecution to turn over to the defense evidence material to the charges at issue." Yates v. United States , --- U.S. ----,
Under Rule 16(a)(1)(E), "the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and," inter alia , "the item is material to preparing the defense" or "the government intends to use the item in its case-in-chief at trial." FED. R. CRIM. P. 16(a)(1)(E)(i)-(ii) ; see United States v. Thompson ,
In other word, "the evidence must not simply bear some abstract relationship to the issues in the case, ... and the government must disclose Rule 16 evidence only if such evidence enables the defendant significantly to alter the quantum of proof in his favor." United States v. Libby ,
As a general matter, " Rule 16 establishes 'the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases.' " United States v. Karake ,
2. Analysis
The defendants fail to demonstrate that the minimized Panfilo intercepts and co-conspirator intercepts are "material" to preparing their defenses in "response to the Government's case in chief." Armstrong ,
*40First, the defendants' vague asserted need for potentially exculpatory evidence that might be contained in the minimized and co-conspirator intercepts does not pass muster. See United States v. Williams-Davis ,
Agustin has provided a similarly vague rationale for seeking the minimized and co-conspirator intercepts: "The defense must have access to all the intercepts in order to analyze their contents and determine what evidence exists that both potentially inculpates or exculpates him of the charges in this case." Agustin's Discovery Mot. at 4. As a threshold matter, the government has stated that the undisclosed intercepts will not be introduced in the government's case-in-chief, and, accordingly, the inculpatory nature of any of these communications is not material. Moreover, Agustin has provided absolutely no information about why communications to which he was not a party because he was incarcerated would contain any exculpatory information about him. The defendants' mere desire to "search" the intercepts "for exculpatory information," Jt. Stm. Discovery ¶ 7, reveals this request as the fishing expedition it is.
In contrast to the defendants' speculative reasons proffered here, in other cases in which a defendant has made a Rule 16(a)(1)(E) motion to compel discovery based on its potential exculpatory value, the defendant clearly identified how the evidence would further the defense. See, e.g. , United States v. O'Keefe , Crim. No. 06-249 (PLF),
In any event, the government represents that it is "unaware of any exculpatory material regarding the Defendants in this case" and affirms that it has and will continue to comply with its obligations under Brady v. Maryland ,
The next reason given by the defendants for compelling discovery of the minimized Panfilo and co-conspirator intercepts shows plainly that this discovery demand is not intended to prepare a defense in response to the government's case-in-chief. The defendants argue that receiving all intercepts, including those of alleged co-conspirators and minimized, will help show that the government improperly minimized the communications. See Jt. Stm. Discovery ¶ 7. Although the erroneous marking of seven AMR files as "pertinent" rightfully raises some concern, seven is a "small number" compared to the approximately 12,500 electronic communications marked pertinent and not minimized. Gov't's Third Opp'n T. III Intercepts at 18. In addition, given the detailed description provided by the government of the minimization procedures employed, and the fact that the seven AMR files were all received in the same session by the same monitor and have no accompanying transcript, Gov't's Second Opp'n T. III Intercepts at 5, the defendants' argument that additional minimization violations may be uncovered through the requested compelled discovery is purely speculative.
This defense effort to find additional evidence to bolster arguments challenging the minimization procedures used during the wiretap phase of the investigation does not refute any of the government's direct evidence against the defendants. To the contrary, even if additional minimization violations were found, the wiretap statute does not provide a suppression remedy for Panfilo's intercepted electronic communications, which could still be used in the government's case-in-chief. Consequently, the defendants' wishful thinking of finding additional minimization violations does not justify the requested discovery under Rule 16. See, e.g ., United States v. Pray ,
*42Accordingly, the defendants' motions to compel discovery are DENIED .
II. GOVERNMENT'S MOTION TO RECONSIDER USE OF NON-LITERAL TRANSLATIONS OF INTERCEPTED COMMUNICATIONS TRANSCRIPTS
The government has moved to use at trial transcripts of intercepted BlackBerry Messenger communications ("BBMs") in the form produced to the defendants on August 8, 2017. Gov't's BBMT Mot. at 1 & n.1. Shortly after initial production of the transcripts at issue, the defendants raised concern at a status conference held on August 11, 2017, that the government's proposed transcripts did not provide literal translations of certain words but instead interpreted Spanish slang to have potentially prejudicial meaning, like "cocaine" for a word literally translated as "parakeet." Status Conf. Hr'g (rough ) Tr. (Aug. 11, 2017) at 4-5.
Conceding that literal translations are not used for certain Spanish words in these proposed transcripts, the government argues that the transcripts reflect "English translations of Spanish slang words or colloquialisms that are acceptable translations of the Spanish language BBM communications," based upon the "knowledge and experience" of the translator. Gov't's BBMT Mot. at 2. According to the government, if literal translations are used, the translator "would be unable to testify that the translation is a fair and accurate translation of the Spanish communication based upon her expertise and based on the context of the conversation," since interpreting the import of the communication requires more than "taking statements in one language and expressing them in a different language" but instead reflects "a continuing exercise of judgment and analysis of what is meant or intended to be said by the parties." Id. at 6-7 (internal quotation marks and citation omitted).
Specifically, the government has enumerated eleven words set out in the chart below that have been translated differently from the literal meaning to reflect the common slang understanding. See id.
*43Intercepted Literal Translation Slang Translation Used in Proposed Spanish Word BBM Transcripts 1 Simón Simon yes 2 Sale leave alright 3 Jale pull work, job, stuff 4 Fierro iron guns; also interjection like "Alright" or "go for it!" 5 Paro Stop; strike; stoppage "hacerme el paro" is to do me a favor 6 Chale chalet No way!; Oh my God!; sure 7 Aguitarse (no definition) bummed; bummed out 8 Parrque park ammunition; ammo 9 Morros snout/nose kid; boy 10 Pedo fart no hay pedo; there's no problem 11 Vato (no definition) dude
Here, without identifying any of the eleven words or other particular words or phrases used in the proposed transcripts as disputed, the defendants have generally challenged the transcripts' accuracy and requested "a pre-trial hearing to determine the admissibility of the materials." Defs.' Opp'n Gov't's BBMT Mot. at 1, ECF No. 100.
To the extent the defendants challenge the interpretation reflected in the transcripts, the government contends that they may do so "through cross-examination or by the presentation of another qualified translator with a contrary view." Gov't's BBMT Mot. at 3 (citing United States v. Verdin-Garcia ,
Although "[t]he ideal procedure for testing accuracy is to have the prosecution and defense attorneys stipulate to a transcript," United States v. Slade ,
The precise procedure to be used at trial remains unclear due to the defendants' expressed need to locate their own qualified expert interpreter. Defs.' Resp. Gov't's Not. Expert Witnesses at 3. The defendants have now had since August 8, 2017, or over four months, to do so, as well as to determine precisely which interpretations in the proposed transcripts are disputed and to prepare versions of their own transcripts, as necessary. Thus, the parties are required to submit jointly, by January 10, 2018, before the pretrial conference, a notice (1) detailing any outstanding disputes regarding the proposed transcripts produced on August 8, 2017; (2) whether any defendant intends to offer alternative transcripts; (3) if any defendant intends to offer alternative interpretations of the recordings, whether the parties intend to introduce one transcript containing both versions of the disputed portions of the recording or two separate transcripts; (4) the text of any requested cautionary instructions regarding the transcripts; and *45(5) any objection to permitting the jury to use the transcripts during deliberations. See United States v. Edwards ,
In view of the defendants' withdrawal of their objection to the government's translator's qualifications, their request for a pretrial hearing to evaluate and hear expert testimony about the proposed August 8, 2017 BBM transcripts is DENIED . Further, based upon the qualifications of the government's translator, whose expertise and methodology used to prepare the English transcripts at issue will be subject to cross examination at trial, the government's motion to use at trial the version of transcripts of intercepted BBMs produced on August 8, 2017, is GRANTED .
III. DEFENDANT AGUSTIN'S MOTION TO INSPECT GRAND JURY MINUTES
Both defendants previously unsuccessfully moved to dismiss Count Two of the Indictment charging a firearm offense, in violation of
In evaluating this motion, the charge itself and the government's proffered evidence are first reviewed, before turning to analysis of whether either of Agustin's arguments warrant inspection of the grand jury minutes. Count Two charges, in relevant part, that the defendant, "[f]rom in or about July 2010, and continuing thereafter, up to and including May 2012, ... did knowingly and intentionally use, carry, and brandish a firearm, during and in relation to one or more drug trafficking crimes, to wit: the crimes charged in Count One, and ... possess a firearm in furtherance of such drug trafficking crimes." Agustin's *46Indictment, United States v. Agustin Flores Apodaca , Crim. No. 12-116 (BAH) at 1-3 (D.D.C. May 2, 2012), ECF No. 1. The government has proffered as evidence for this charge that: (1) cooperating witnesses will testify about Agustin's possession of firearms in the course of the drug trafficking activities charged in Count One of the Indictment; (2) in about December 2009, in El Burrion in Sinaloa, Mexico, Agustin carried firearms during a violent shoot-out; (3) in September 2010, Agustin attempted to trade drugs for .50 caliber machine guns for use against a rival drug cartel; and (4) in October 2013, in Santa Maria del Oro in the state of Nayarit, Mexico, co-defendant Panfilo and co-conspirators possessed weapons while fleeing from, and being involved in a shoot-out with, Mexican Marines. Apodaca II , --- F.Supp.3d at ----,
A. Requested Inspection of Evidence Presented To Grand Jury
With respect to the first proffered basis for inspection of the grand jury minutes, Agustin denies that he is challenging "the sufficiency of the evidence presented to the grand jury," Def.'s Mot. GJ Inspection at 5; see Def.'s Reply Supp. Mot. In Camera Inspection of Grand Jury Minutes ("Def.'s Reply Mot. GJ Inspection") at 1, ECF No. 132, but requests only that the Court inspect "what evidence was presented ... and take appropriate steps to ensure that the charge is not constructively amended at trial ...," Def.'s Mot. GJ Inspection at 5 (emphasis in original). He points out that: the last three alleged events do not support Count Two, since the December, 2009 evidence falls outside the two-year date range of the firearms charge; the September 2010 evidence amounts to an attempt, which is "a theory that is not included in the Indictment"; and the October 2013 evidence occurred after the Indictment had been returned on May 2, 2012. Id. at 4-5. Agustin concedes that more generalized testimony from cooperating witnesses about his possession of firearms in the course of drug trafficking activities would be sufficient to support the charge, but nonetheless urges inspection of the grand jury minutes apparently to ensure that such generalized evidence was, in fact, provided and to assess whether some undefined "appropriate steps" must be taken to avoid constructive amendment of the indictment at trial, with the concomitant risk "of infecting the trial with reversible error," id. at 5, by "supplement[ing] the factual basis of criminal liability at the trial," Def.'s Reply Mot. GJ Inspection at 2.
At the outset, the government's response lacks any specific assurances about the evidence presented to the grand jury to support Count Two. Id. at 1 (noting that "Government has [not] even offered an informal 'proffer' as to the evidentiary predicate for Count Two presented to the grand jury"). Nevertheless, as Agustin concedes, the government had cooperating witnesses' testimony available in some form to present to the grand jury, and such evidence would be sufficient to support Count Two. Thus, despite his denial that he is challenging the sufficiency of the grand jury evidence, Agustin's request for in camera review of grand jury minutes to ascertain what evidence was presented to support the grand jury's finding of probable cause to believe the defendant committed the firearms offense charged, amounts to the same thing. Yet, the law is well-established that challenges to the sufficiency of the evidence presented to the grand jury are not permitted. See, e.g., United States v. Williams ,
This law reflects "a long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts," United States v. Procter & Gamble Co. ,
By contrast, where a defendant fails to provide a discrete reason, and instead relies on speculation or unsupported assumptions, courts have made clear that disclosure of grand jury minutes is not warranted. See, e.g., Procter & Gamble ,
*48Only in "exceedingly rare cases" are defendants "able to make a factually based showing of particularized need for the production and inspection of grand jury materials." United States v. Naegele ,
In this case, Agustin contends that the grand jury minutes should be inspected to guard against any constructive amendment of the indictment stemming from variance between the evidence considered by the grand jury and the anticipated proof at trial. He speculates about "what evidence was presented to the grand jury" to raise "a very real possibility" that "constructive amendment of the Indictment" may occur. Def.'s Reply Mot. GJ Inspection at 1-2. While constructive amendment of an indictment violates the Fifth Amendment's presentment clause where substantial "variance" exists between the "charging terms of the indictment left unaltered" and "evidence offered at trial prov[ing] facts materially different from those alleged in the indictment," Gaither v. United States ,
Even if Agustin is correct that all of the evidence regarding the firearms charge that the government intends to introduce at trial was not presented to the grand jury, this does not amount to an improper variance of proof or demonstrate a particularized need for inspection of the evidence presented to the grand jury. As long as the defendant is on notice of the charges against him and the trial evidence does not alter "an essential element of the charge," the law permits some variance in proof between the grand jury and at trial. United States v. Hitt ,
Given the adequate notice of the firearms charge afforded to the defendants, see Apodaca II , --- F.Supp.3d at ----,
B. Alleged Improper Legal Instructions to Grand Jury
The second basis for Agustin's motion for in camera inspection of the grand jury minutes is to check whether the grand jury was properly instructed on the law regarding aiding and abetting liability. In this regard, Agustin is correct that criminal liability for aiding and abetting a violation of
With this argument, Agustin again fails to meet his burden for demonstrating a "particularized need" to overcome the presumption of secrecy and regularity that materials from grand jury proceedings enjoy. See Procter & Gamble ,
For these reasons, Agustin has failed to show any "particularized need" for inspection of the instructions to the grand jury about Count Two, and his attempt to relitigate his earlier challenge to this charge in the indictment must be rejected. Accordingly, Agustin's motion for an in camera review of the grand jury minutes is DENIED.
IV. CONCLUSION
For the foregoing reasons, the following motions are DENIED: (1) the defendants' Motion to Suppress Title III Intercepts, ECF No. 33; (2) the defendants' motions to compel discovery, ECF Nos. 40, 41 and 45; and (3) Agustin's motion for in camera inspection of the grand jury minutes, ECF No. 130. The government's motion to use at trial transcripts of intercepted BlackBerry Messenger communications in the form produced to the defendants on August 8, 2017, ECF No. 95, is GRANTED , and, as explained supra in Part II, the parties must jointly submit, by January 10, 2018 , a notice (1) detailing any outstanding disputes regarding the proposed transcripts produced on August 8, 2017; (2) whether any defendant intends to offer alternative transcripts; (3) if any defendant intends to offer alternative interpretations of the recordings, whether the parties intend to introduce one transcript containing both versions of the disputed portions of the recording or two separate transcripts; (4) the text of any requested cautionary instructions regarding the transcripts; and (5) any objection to permitting the jury to use the transcripts during deliberations.
An Order consistent with this Memorandum Opinion will issue contemporaneously.
The following pretrial motions were denied in Apodaca II : (1) Agustin Flores Apodaca's ("Augustin") Motion in Limine to Preclude Introduction of Post-Arrest Title III Intercepts, ECF No. 51; (2) the defendants' Joint Motion for Pretrial Hearing of Admissibility of Alleged Co-Conspirator Statements, ECF No. 52; (3) Agustin's Motion to Enforce the Rule of Specialty, ECF No. 54; (4) Agustin's Motion to Suppress Statements, ECF No. 48; (5) the defendants' Joint Motion to Dismiss Count Two of Indictments, ECF No. 50; and (6) and (7) the defendants' separate Motions to Strike Improper Aliases, ECF Nos. 53 and 56. See Apodaca II , --- F.Supp.3d at ----,
The trial was originally scheduled for September 18, 2017, but was postponed until February 5, 2018, at the defendants' request for additional time to conduct further investigation following the government's disclosure, in connection with its Motion to Introduce Other Crimes Evidence, ECF No. 55, of anticipated evidence to be introduced at trial. Min. Order (dated Aug. 28, 2017).
The defendants and government filed certain of the pending motions and related briefing under seal, with those papers subsequently unsealed, in full or in part, at the direction of this Court. See Min. Order (dated Sept. 5, 2017); Min. Order (dated Sept. 15, 2017). Any parts of documents that remain under seal and are discussed in this Memorandum Opinion, including ECF Nos. 68-1, 68-2, are unsealed to the extent discussed herein in order to make the reasoning intelligible.
Three of the defendants' previously-denied motions also challenged the introduction of intercepted communications. See Apodaca II , --- F.Supp.3d at ----,
The existence of the AMR files was first raised by defendants at an August 2, 2017 status hearing. See Gov't's Second Opp'n T. III Intercepts at 2 (discussing hearing). In subsequent submissions, the government acknowledged that 170 AMR files were sent by BlackBerry to the FBI's Data Intercept Technology Unit ("DITU") for review, and that 163 of these files were minimized and seven "were erroneously marked "pertinent" by a monitor. Id. at 3-4. The defendants also questioned the extent to which the government intercepted other types of wire communications, including 25 MP4 (video) and MP3 (audio, often music) files, in addition to AMR type wire communications. Defs.' Second Reply Mot. Suppress T. III Intercepts at 2. The government responded by explaining that "[t]he raw data exported for production in discovery to Defendants caused ... three (3) unique MP4 files to be replicated within the raw data and to erroneously appear 25 different times within the raw data produced to the Defendants." Gov't's' Second Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts ("Gov't's Third Opp'n T. III Intercepts") at 5-6, ECF No. 101-2. With respect to the MP3 data, the government further explained that "MP3 files were not intercepted in this investigation and any reference to MP3 files within the communications is due to a feature of BBM which alerts a user when another contact is available." Id. at 13.
The defendants assert a new argument in their most recent brief as a "second-and independent-basis for suppression." Defs.' Fourth Reply Mot. Suppress T. III Intercepts at 2. Based on the government's assertion that it maintains "all the intercepted communications ... on an FBI server in Quantico, Virginia," the defendants contend that the government has "fail[ed] to comply with the 'sealing' requirements of the Title III wiretap," and "[t]his failure warrants suppression of all the intercepts." Id. at 2, 11-12 (citing United States v. Ojeda Rios ,
As belatedly detailed by the government, during discrete time periods, after the first six months of the investigation, the government sought court authorization to intercept both wire and electronic communications, but only in five of the 27 applications and for only four devices not used by Panfilo out of the total 59 devices subject to the wiretaps. Gov't's Fourth Opp'n T. III Intercepts at 3-4 (noting the first of the five applications targeting wire and electronic communications was filed in August 2013); Defs.' Fourth Reply Mot. Suppress T. III Intercepts at 1 (listing the dates of the five applications for wire communications as August 12 and 30, 2013, January 27, 2014, August 14, 2014, and September 11, 2014); Gov't's Third Opp'n T. III Intercepts at 14-15 (noting that "[i]n the August 12 affidavit ... the Government sought authority to intercept electronic communications over Target Device[ ] 1 (Panfilo's Device)," as well as "electronic ... and wire communications over Target Device 10," which was not Panfilo's device). These facts show that had the government wished to target interception of Panfilo's wire, in addition to his electronic, communications, such authority would have been sought, as with the four devices subject to court-authorized wire interception.
The government also argues that "Agustin lacks standing to challenge the electronic interceptions evidence because he fails to meet the statutory criteria of an 'aggrieved party' under Title III." Gov't's First Opp'n T. III Intercepts at 2, 13-17. This standing argument need not be addressed as this motion is resolved on alternative grounds.
ECPA added a definition of "electronic communications" to mean "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include," inter alia , "any wire or oral communication."
The D.C. Circuit did not expressly state that the intercepts at issue in Scurry involved wire communications, as opposed to electronic communications, but a review of the record indicates that the warrants issued authorized the relevant law enforcement authorities to intercept wire communications from the defendants' cell phones. See United States v. Savoy , Crim. No. 10-310 (RCL) (D.D.C. 2012), ECF Nos. 59, 77, 90, 105, 108; see also Scurry ,
Confusingly, the initial application and order authorizing interception of the electronic communications on Target Device # 1 uses language pertinent to oral and wire communications. See, e.g., Initial T. III App. ¶ 3 (stating that, "[p]ursuant to Title 18, United States Code, Section 2516, an appropriate official of the Criminal Division, United States Department of Justice, having been specially designated by the Attorney General pursuant to Order Number 3055-2009 dated February 26, 2009, has authorized this application."); Initial T. III Order at 4 (stating that, "pursuant to the application authorized by an appropriate official of the Criminal Division, United States Department of Justice, who has been specially designated by the Attorney General of the United States to exercise the power conferred on him by Title 18, United States Code, Section 2516 are authorized to intercept electronic communications ... to and from TARGET DEVICE # 1."). Notwithstanding that both the application and order include language pertinent to authorizing wire and oral communications, since § 2516 does not require sign-off by a high-level DOJ official, this surplusage does not alter the validity of the order. See Scurry ,
The defendants also cite a handbook on surveillance prepared by the Internal Revenue Service ("IRS") Criminal Tax Division that focuses on the identical language of the House Judiciary Committee Report but expressly states that the handbook is "not intended to have the force of law" or "replace thorough research." See Defs.' Fourth Reply Mot. Suppress T. III Intercepts at 9;
This somewhat opaque language in the House Judiciary Committee Report relied upon by the defendants is notably absent from the Senate Judiciary Committee's Report on ECPA, which report also makes a point of "recogniz[ing] that a transaction may consist, in part of both electronic communications and wire or oral communications" and that "different aspects of the same communication might be characterized differently." S. Rep. No. 99-541, at 16 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3570.
According to the government, even though audio files without the human voice would constitute electronic communications under Title III, "in an abundance of caution," the government "instructs monitors not to listen or retain any audio files when it does not have authority to intercept wire communications in addition to electronic communications." Gov't's Second Opp'n T. III Intercepts 4 n.1.
In any event, even the defendants were able to show some statutory violation, which they have not, suppression of the intercepted BBM communications is not available here. As noted, the ECPA amendments to Title III did not add "electronic communications" to either § 2515 (directing that "no part of the contents" of "any wire or oral communication" may be introduced at trial "if the disclosure of that information would be in violation of this chapter") or § 2518(10)(a) (authorizing motion by "aggrieved person ... to suppress the contents of any wire or oral communication intercepted pursuant to this chapter" if, inter alia , the order authorizing the interception of such communications is "insufficient on its face") (emphasis added). Thus, ECPA "does not apply the statutory exclusionary rule contained in title III of the Omnibus Crime Control and Safe Streets Act of 1968 to the interception of electronic communications." S. Rep. No. 99-541 at 23 (1986); see also United States v. Reed ,
The defendants appear to dispute that human error caused the erroneous non-minimization of seven AMR files and, for this reason, seek disclosure of all the minimized intercepts to confirm the government's explanation. See Jt. Stm. Discovery ¶ 7. This discovery request is discussed infra in Part I.B.
Despite initially refusing, the government ultimately produced these materials to Agustin. See Gov't's Resp. Suggestion of Court Regarding Discovery ("Gov't's Resp. Discovery") at 1, ECF No. 80. The government has also produced, pursuant to the defendants' initial motions to compel: (1) to both defendants, minimization documents, including minimization instructions in Government counsel's possession, see Gov't's Opp'n Defs.' Discovery Mots. at 5 (distinguishing "minimization documents" from "minimized intercepts"); Jt. Stm. Discovery ¶ 5; Gov't's Resp. Discovery at 1, and (2) to Panfilo, "the [California] state-authorized pertinent intercepts," which the government only discovered around the time of filing its original opposition to the motions to compel, see Gov't's Opp'n Defs.' Discovery Mots. at 5; see also Agustin's Reply Mem. Supp. Discovery Mot. ("Agustin's Reply Supp. Discovery Mot.") at 1 n.1, ECF No. 57.
The defendants also seek this discovery to "independently determine when audio files were first intercepted," Jt. Stm. Discovery ¶ 7, but this reason seems particularly weak. The government has already conceded that the first wire intercept occurred on March 23 2013, just over a month after the wiretap surveillance began, id. at ¶ 6, and "independent" verification of this, or an even earlier, date of minimized communications is entirely immaterial.
As with Agustin's motion to suppress the wiretaps, the government challenges Agustin's discovery motion on standing grounds, reasoning that "[b]ecause Defendant Agustin lacks standing to challenge the Title III electronic interceptions, he has failed to show that the pertinent intercepts and corresponding Title III documents are material to his defense." Gov't's Opp'n Defs.' Discovery Mots. at 7-8. Agustin counters that "[t]he issue of this defendant's 'standing' to challenge the wiretap is ... irrelevant to the question of whether the materials should be produced under Rule 16." Agustin's Reply Supp. Discovery Mot at 4. Since this motion is resolved on alternative grounds, the government's standing argument need not be addressed. See supra note 8.
In his latest filing on this issue, Panfilo argues that "the minimized communications" are "relevant under Rule 16(a)(1) (B(i) [sic] as statements of the Defendant, his role in the alleged conspiracy, and must be reviewed by the defense to aid in determining if the Government fulfilled its minimization requirements." Panfilo's Reply Discovery Mot. at 3 (citing Fed. R. Crim. P. 16(a)(1)(B)(i) ). "Rule 16's provision for the discovery of oral statements is intended, in part, to 'facilitate the raising of objections to admissibility prior to trial,' " which "contributes to the efficient administration of justice," protects "the defendant's right to a fair trial," and "prevents unfair surprise." United States v. McElroy ,
The government was directed to provide the Defendants with "literal" translations of the intercepted BBM communications by August 15, 2017, see Minute Order (Aug. 11, 2017) (directing government "to re-produce to the defendants, by August 15, 2017, transcripts for Blackberry intercepts, containing literal translations of all words"), and the government generally complied by providing "updated" transcripts. In the instant motion, the government seeks to use the original transcripts produced on August 8, 2017.
The defendants mentioned the word "perico " as an example of an inaccurately translated word, Status Conf. Hr'g (rough ) Tr. (Aug. 11, 2017) at 4, but the government indicates this word may be literally translated at "cocaine," Gov't's BBMT Mot. at 1 n.1 (noting that the Real Academia Española ("RAE"), a recognized Spanish dictionary, lists "cocaine" as an acceptable definition of the word "perico "). The defendants do not contest this assertion in their opposition. See generally Defs.' Opp'n Gov't's BBMT Mot., ECF No. 100.
The defendants initially contended that insufficient information was provided about the qualifications of the government's translator "to determine if she even has the expertise to translate the materials," citing the lack of any "expert notice pursuant to Federal Rule of Evidence 702 for the witness," or "information concerning the qualifications and methodology used to create the English language transcripts," or "what materials the translator was provided in this case." Defs.' Opp'n Gov't's BBMT Mot. at 1-3. Less than one week after the defendants pointed out the lack of a government expert notice for the translator of the proposed BBM transcripts, the government filed such a notice for Judi O'Brien, who is a certified Spanish to English translator. See Gov't's Not. Expert Testimony of Judi O'Brien at 1-2, ECF No. 106.
Ms. O'Brien has also provided testimony in three other trials in this court, Gov't's Not. Expert Testimony of Judi O'Brien at 2, though without being qualified as an expert, Defs.' Resp. Gov't's Not. Intent to Call Expert Witnesses ("Defs.' Resp. Gov't's Not. Expert Witnesses") at 3, ECF No. 123.
The defendant states that the belated filing of this motion on November 6, 2017, when the scheduling order required substantive motions to be filed by June 28, 2017, Min. Order (dated Mar. 3, 2017) is because the grounds for the motion did not become "apparent to defense counsel until the Government filed its Supplemental Notices concerning other crimes evidence and the Court resolved the originally filed legal motions." Def.'s Mot. GJ Inspection at 1.