U.S. v. Arreguin

• Decision Date: 07 August 2003
• Docket Number: No. CR S-02-104 LKK.,CR S-02-104 LKK.
• Citation: 277 F.Supp.2d 1057
• Parties: UNITED STATES of America, Plaintiff, v. J. Jesus ARREGUIN, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

277 F.Supp.2d 1057

UNITED STATES of America, Plaintiff, v. J. Jesus ARREGUIN, et al., Defendants.

No. CR S-02-104 LKK.

United States District Court, E.D. California.

August 7, 2003.

Carolyn K. Delaney, United States Attorney, Sacramento, CA, for Plaintiff.

Steve Emery Teich, Law Offices of Steve Emery Teich, San Francisco, CA, for Defendants.

ORDER

KARLTON, Senior District Judge.

Defendants in this federal criminal prosecution move for discovery concerning an affidavit filed in support of a state-authorized wiretap (Orange County wiretap # 02-01) and the investigation reports concerning the subject of that wiretap, Reyna-Madrigal, and the subject of an earlier wiretap, Mora.¹ Because the state wiretap information was used to obtain a further wiretap issued by this court, defendants seek discovery in order to attack those underlying wiretaps. At issue is whether defendants' request may be granted in light of the government's privilege to keep confidential the identity of its informants.

Before discussing the parties' arguments, I briefly set out the statutory scheme of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, under which wiretaps are available. In particular, I focus on the provisions that relate to disclosing or using the contents of, or the underlying application for, a wiretap.

I. TITLE III DISCLOSURE PROVISIONS

Title III prohibits the interception of wire or oral communication "[e]xcept as otherwise specifically provided in this chapter ...." 18 U.S.C. § 2511. It also prohibits the use and disclosure of intercepted communications, with narrow exceptions. See id.; 18 U.S.C. §§ 2517, 2518. To protect confidentiality and prevent tampering, applications for wiretaps and the orders thereon must be sealed by the issuing court, and can only be disclosed "upon a showing of good cause before a judge of competent jurisdiction ...." 18 U.S.C. § 2518(8)(b).² In specific circumstances, though, and for the benefit of persons against whom wiretaps are directed, Title III mandates the disclosure of applications and orders for wiretaps. Title III also provides for disclosure of intercepted communications and evidence derived therefrom under the circumstances discussed below.

Disclosure of the contents of intercepted communications or evidence derived therefrom may be made between investigative or law enforcement officers who obtained knowledge of the intercepted communications or evidence by authorized means. See 18 U.S.C. § 2517(1). Such officers may use these communications or evidence in the proper performance of their duties. See 18 U.S.C. § 2517(2).³

The contents of intercepted communications or evidence derived therefrom may also be disclosed in court proceedings by a person giving testimony under oath. See 18 U.S.C. § 2517(3). Before intercepted communications or evidence derived therefrom may be disclosed in a court proceeding, however, each party to the proceeding must be provided "with a copy of the court order, and accompanying application, under which the interception was authorized or approved." 18 U.S.C. § 2518(9).⁴ Where a party who was aggrieved by a wiretap moves to suppress communications or other evidence derived from the wiretap, the judge has discretion to disclose the contents of intercepted communications or evidence derived therefrom to the moving party. 18 U.S.C. § 2518(10)(a).⁵

With these statutory provisions in mind, I turn to the case at hand.

II. DEFENDANTS' MOTION

This motion seeks discovery of the application in support of the Orange County wiretap and also other evidence which, defendants argue, would demonstrate that affidavits in support of state court wiretaps contained material misrepresentations. Because defendants' requests are governed by different law, I discuss them separately.

A. DISCLOSURE OF THE ORANGE COUNTY WIRETAP APPLICATION

The request for disclosure of the Orange County wiretap application is governed by 18 U.S.C. § 2518(9), which requires disclosure of the application to parties to a proceeding in which evidence derived from a wiretap will be offered. The government seeks to avoid compliance with defendants' request by stating that it will not offer into evidence any of the communications intercepted under the Orange County wiretap. As the government comes very close to acknowledging in its supplemental briefing, however, because the federal wiretap was supported by evidence obtained in the execution of the Orange County wiretap, evidence obtained via the federal wiretap is evidence obtained by virtue of the Orange County wiretap. See, e.g., United States v. Vento, 533 F.2d 838, 847 (3d Cir.1976) (noting, with respect to defendant's motion to suppress fruits of a second wiretap, that if original wiretap had been improvidently granted, the government could not have used the fruits of that wiretap to obtain authorization for a second wiretap). Thus, the application and order for the Orange County wiretap should be disclosed to each party to any proceeding in which the government desires to introduce evidence derived therefrom.⁶ Indeed, the government has disclosed the application and order to moving defendant, Arreguin, but has redacted much of the affidavit in support of the application. It contends that the redacted information could put an informant in danger and jeopardize an ongoing investigation. The real question before the court relative to the state wiretap, then, is whether Title III, which mandates disclosure of the application, allows the government to redact information.

The government relies on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), which recognized that the government has a "privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Id. at 59, 77 S.Ct. 623. Roviaro held that, because "protecting an informant's identity serves important law enforcement objectives, determining whether to reveal an informant's identity to a defendant requires balancing the needs of law enforcement against the individual's interest in having a fair trial." United States v. Rawlinson, 487 F.2d 5, 7 (9th Cir.1973) (citing Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623). "Where the disclosure of an informer's identity, or the contents of his communications, is relevant and helpful to the defense of an accused," however, "or is essential to a fair determination of a cause, the privilege must give way." Roviaro, 353 U.S. at 61, 77 S.Ct. 623. The Roviaro Court thus noted that in cases where the communications of an informer were relied upon to establish probable cause, "the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication." Id. On the other hand, where the reliability of the informant is established, the government need not disclose the identity of a confidential informant where the sole issue is probable cause. See United States v. Mehciz, 437 F.2d 145, 148-49 (9th Cir.1971) (citing McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967)).⁷ As I now explain, however, Roviaro and its progeny do not establish that the government privilege described there applies where Title III mandates disclosure of the application and order for a wiretap.⁸

Title III was enacted to provide greater protection than that mandated by the Constitution under then-existing precedent. See Gelbard v. United States, 408 U.S. 41, 48 n. 7, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972).⁹ The statutory requirements for wiretap authorization are far more burdensome than those mandated by the Constitution. See 18 U.S.C. § 2518 (setting forth requirements for applications and orders for wiretaps); United States v. Danovaro, 877 F.2d 583, 587 (7th Cir. 1989) (noting that Title III requires more than probable cause for the issuance of a wiretap). Thus, although Roviaro governs where a defendant asserts that due process dictates disclosure, it does not govern where the defendant asserts a right under the disclosure provisions of Title III's more stringent statutory scheme.

In support of its contention that Roviaro does apply to requests for the disclosure of wiretap applications, the government cites to two cases which held that information could be redacted from the wiretap application before disclosure. I now examine those cases, and explain why I do not find them persuasive.

The first argument in support of the government's contention is a very tentative one raised in United States v. Yoshimura, 831 F.Supp. 799 (D.Haw.1993). The court there asserted that there was "no statutory provision that mandates that affidavits filed in support of the application be released." Id. at 805. This observation seems quite strained, putting form over substance. Title III requires that an application must include a broad statement of relevant facts, specifying numerous details. See 18 U.S.C. § 2518(1) (applications must include, inter alia, a full and complete statement of the facts relied on by the applicant to justify belief that order should be issued, as well as a full and complete statement as to whether other investigative procedures have been tried, and failed). Thus, where an affidavit supplies the information required by the statute to be included in the application, it must be considered part of the application. To the extent, then, that Title III requires that the application be released, affidavits that are part of the application must also be released.

The second contention, also derived from Yoshimura, is that Title III's good cause standard for disclosing sealed applications and orders modifies the provision requiring disclosure of applications and orders. See id. According to this reasoning, the court could disclose applications and orders in redacted form if it found that there was no good cause to disclose the redacted information. See id...