United States v. Apodaca

• Decision Date: 28 December 2017
• Docket Number: Criminal Action No. 14–57 (BAH)
• Citation: 287 F.Supp.3d 21
• Parties: UNITED STATES of America, Plaintiff, v. Agustin Flores APODACA and Panfilo Flores Apodaca, Defendants.
• Court: U.S. District Court — District of Columbia

287 F.Supp.3d 21

UNITED STATES of America, Plaintiff,

v.Agustin Flores APODACA and Panfilo Flores Apodaca, Defendants.

Criminal Action No. 14–57 (BAH)

United States District Court, District of Columbia.

Signed December 28, 2017

Andrea 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.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief JudgeThis is the third opinion issued in this case. See United States v. Apodaca ("Apodaca I "), 251 F.Supp.3d 1, 2 (D.D.C. 2017) (granting the government's motion to enforce two administrative subpoenas); United States v. Apodaca ("Apodaca II "), Crim. No. 14–57 (BAH), ––– F.Supp.3d ––––, ––––, 2017 WL 3575655, at *23, 2017 U.S. Dist. LEXIS 131617, at *73 (D.D.C. Aug. 17, 2017) (resolving pretrial motions).¹ Having already resolved eight pretrial motions in Apodaca II, six additional pretrial motions have now become ripe in advance of the trial, which is scheduled to begin on February 5, 2018.² The defendants, Agustin Flores Apodaca ("Agustin") and Panfilo Flores Apodaca ("Panfilo"), who are indicted separately on two substantively similar counts of conspiring to traffic controlled substances and possessing a firearm in furtherance of the same, have filed five of the pending motions: (1) the defendants' Joint Motion to Suppress Title III Intercepts ("Defs.' Mot. Suppress T. III Intercepts"), ECF No. 33; (2) Agustin's Motion to Compel Discovery ("Agustin's Discovery Mot."), ECF No. 40; (3) Panfilo's Motion to Join and Supplement Agustin's Motion to Compel Discovery ("Panfilo's Discovery Mot."), ECF No. 41; (4) an amendment thereto ("Panfilo's Am. Discovery Mot."), ECF No. 45; and (5) Agustin's Motion for In Camera Inspection of Grand Jury Minutes ("Def.'s Mot. GJ Inspection"), ECF No. 130. Also ripe for resolution is the government's Motion to Reconsider Use of Blackberry Communications Transcripts ("Gov't's BBMT Mot."), ECF No. 95.

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 No. 95; and, finally, Part III discusses Agustin's motion for in camera inspection of grand jury minutes, ECF No. 130.³

The general factual and procedural background in this case has been amply described in Apodaca II , ––– F.Supp.3d at ––––, 2017 WL 3575655, at *1–4, 2017 U.S. Dist. LEXIS 131617, at *4–13, and will not be repeated here.

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 1.⁴ If their suppression motion is denied, the defendants seek to compel discovery of "[a]ll interceptions from the Title III investigation, from all target devices," including "[m]inimized interceptions of Defendant Panfilo." Jt. Stm. Regarding Discovery ("Jt. Stm. Discovery") ¶ 7, ECF No. 124; Agustin's Discovery Mot at 1; Panfilo's Discovery Mot. at 1; Panfilo's Am. Discovery Mot at 1. The defendants' suppression motion, followed by their motions to compel discovery, are discussed in turn.

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 4 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 18 U.S.C. § 2516(3) for interceptions of electronic communications. Gov't's First Opp'n T. III Intercepts at 3. Although "the Government sought only to intercept electronic communications when it first applied for judicial authorization," the wiretap also intercepted some "wire (voice) communications," mostly "in the form of 'voice notes,' " which are in a compressed audio Adaptive Multi–Rate ("AMR") file format. Gov't's' Third Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts ("Gov't's Fourth Opp'n T. III Intercepts") at 3–4, ECF No. 113. The interception of these voice notes, or AMR files, was due to BMM's functionality in transmitting both audio and text communications over the same network and the Blackberry service provider's inability to disaggregate the two formats of communications. Gov't's Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts ("Gov't's Second Opp'n T. III Intercepts") at 3–4, ECF No. 89. As the government explains, BBM is BlackBerry's "proprietary instant messaging service," and "[u]sers of BBM are able to attach video and audio files, including 'voice notes,' to standard text conversations and send these messages as BBM communications utilizing [BlackBerry's] network." Id. at 3. BlackBerry announced the voice notes functionality in December 2012, three months before the wiretap investigation in this case began. Defs.' Third Reply Supp. Mot. Suppress Title III Intercepts ("Defs.' Fourth Reply Mot. Suppress T. III Intercepts") at 2, ECF No. 129.

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 investigation.⁵ This approach to discovery is both unhelpful and unnecessarily time-consuming for the Court and the parties. Now, in the face of more complete discovery from the government, the defendants advance an evolved argument for suppression based on their understanding of the government's interceptions as being "hybrid" in nature and, as such, requiring authorization pursuant to the " 'wire' standard," instead of the standard for electronic communications. Defs.' Fourth Reply Mot. Suppress T. III Intercepts" at 8–9; Defs.' Reply Gov't's Second Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts ("Defs.' Third Reply Mot. Suppress T. III Intercepts") at 4, ECF No. 104–2.⁶

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.

Id. ; Defs.' Second Reply Mot. Suppress T. III Intercepts at...