United States v. Arevalo
| Decision Date | 18 June 2015 |
| Docket Number | 13–10140–03.,13–10140–02,Nos. 13–10140–01,s. 13–10140–01 |
| Parties | UNITED STATES of America, Plaintiff, v. Manuel Torres AREVALO, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Debra L. Barnett, Office of United States Attorney, Wichita, KS, for Plaintiff.
Kari S. Schmidt, Conlee Schmidt & Emerson, LLP, Laura B. Shaneyfelt, Ney Adams & Shaneyfelt, Wichita, KS, for Defendant.
The government has charged all the defendants (Manuel Torres Arevalo, Marisela Ramirez, Jorge Rodriguez–Maciel, Maria Rosario Diaz, and Victor Diaz) with conspiring to distribute 50 grams or more of methamphetamine (in violation of 21 U.S.C. §§ 846, 841 ). The government also charges that defendant Marisela Ramirez mutilated a Federal Reserve Note (18 U.S.C. § 333 ), and attempted the depredation of government property (18 U.S.C. § 1361 ).
This matter is before the court on two motions to suppress wiretap interceptions, filed on behalf of the defendants Arevalo, Ramirez, and Rodriguez–Maciel. The first motion (Dkt. 47) was filed on behalf of all three defendants on December 9, 2013. The second motion (Dkt. 69), on behalf of Ramirez and Rodriguez–Maciel, was filed on June 2, 2014.
The defendants' motions address different issues. The first motion challenges the wiretaps on the grounds that the interceptions did not comply with the statutory requirements for "minimization," that is, the requirement that intercepting officers try to avoid listening to innocent conversations. See 18 U.S.C. § 2518(5) (). Under 18 U.S.C. § 2518(5), when law enforcement agents listen to a conversation in a foreign language "and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception."
The defendants agree that the validity of the wiretaps is determined by Kansas law. (Dkt. 69, at 2). Kansas law permits judges to authorize wiretaps, but the authority to intercept calls is limited to the judge's territorial jurisdiction. State v. Adams, 2 Kan.App.2d 135, 576 P.2d 242 (1978). Under Kansas law, an "interception" occurs when the police listening device actually intercepting is within its jurisdiction. State v. Gibson, 255 Kan. 474, 489, 490, 874 P.2d 1122 (1994). See United States v. Luong, 471 F.3d 1107, 1109 (9th Cir.2006). Thus, the interception happens where the tapped phone is located and where law enforcement officers first overhear the call. United States v. Rodriguez, 968 F.2d 130, 136 (2nd Cir.1992).
The defendants allege that in the present action the calls were not intercepted within the territorial jurisdiction of Johnson County, Kansas, because "[a]fter the first thirty days, the calls were intercepted and monitored in St. Louis." (Dkt. 47, at 1–2). According to the government, however, "all calls ... were initially intercepted, heard and recorded in Johnson County, Kansas." (Dkt. 95, at 12).
In addition, both TT1 and TT2 required minimization of the intercepted communications, pursuant to Kansas law:
Conversations will be minimized in accordance with K.S.A. 22–2516(5). These interceptions will also be minimized when it is determined, through voice identification, physical surveillance or otherwise, that neither Subject Interceptees, nor their associates, when identified, are participants in the conversation unless it is determined during the portion of the conversation already overheard that the conversation is criminal in nature. Even if one or more associates, when identified, are a participant in the conversation, monitoring will be minimized if the conversation is not criminal in nature or otherwise related to the offenses under investigation. It is understood that the agents will be permitted to spot check minimized conversations to determine whether the conversation has turned criminal in nature, and therefore, subject to interception that an expert or person otherwise fluent in that language will be available to monitor and to translate during the interception whenever possible. In the event the translator/expert is not an investigative or law enforcement officer, the translator, whether a language trained support employee or someone under contract with the Government, will be under the direct supervision of an investigative or law enforcement officer authorized to conduct the interception. If however, such a translator is not reasonably available during the interception period, minimization may be accomplished as soon as practical after such interception. The following after-the-fact minimization procedures have been established for conversations: (1) All such foreign language conversations will be intercepted and recorded in their entirety; and (2) As soon as practicable after such interception, these conversations will be minimized by a translator under the guidance of an investigative or law enforcement officer authorized to conduct the interception.
Consistent with this order, the agents overseeing the wiretap arranged to have linguists in the Overland Park office to monitor the telephone calls.
On April 2 and 8, 2013, the same judge issued Amended Orders as to TT1 and TT2, based on information showing the use of the telephones. The Amended Orders contained identical language as to the place of interception and the requirement for minimization. The TT1 authorization ended April 27, 2013. The TT2 authorization ended April 26, but was reauthorized the same day.
The Johnson County District Court authorized three additional interceptions during 2013:
| Order | Date | Listed Customer | Actual User | |
| TT5 | May 15 | "Prepaid Customer" | Pariete (aka Maciel) | |
| TT6 | May 22 | "Holly Nunez" | Arevalo | |
| TT7 | May 29 | "Prepaid Customer" | Maciel |
Each of the additional orders contained similar requirements for interception and minimization.
Under the original minimization procedure, the intercepted calls were first heard "live" in Johnson County by Spanish-speaking monitors supervised by DEA agents or task force officers. If the communication was in Spanish, the linguists listened to or reviewed the communication, and minimized it in accordance with the state court's orders. Any portion of the intercepted communication that was actually heard or reviewed was recorded and this recording was maintained in accordance with the state statutes. If the linguists or agents (when the call was in English) minimized (or did not listen to) a portion of an intercepted communication, that portion of the communication was not recorded.
Because of the federal budget sequestration in the Spring of 2013, the Spanish-speaking monitors were moved from Johnson County to St. Louis, Missouri. The decision was made for budgetary reasons, and was not made by DEA personnel in Johnson County, the Johnson County District Court, or by the District Attorney.
The translators used by the DEA are employees of a separate company, MDM, Inc., based in St. Louis. The sequestration did not prevent their continued employment under the DEA's contract with MDM, but did preclude additional per diem and lodging expenses, thus precluding their continued employment in Kansas. Up to a half-dozen linguists were required to support the translation services.
Translators employed by the DEA take extensive written and verbal tests. They must have security clearances, and must agree to engage in long sessions to support the 24–hour constant monitoring required under the authorized surveillance. At the hearing, the lead DEA Agent testified credibly that there are not many translators who can meet these requirements, given the labor-intensive nature of the work.
The DEA notified the Johnson County District Attorney and the Johnson County District Court of the change. Judge Sara Welch of the Johnson County District Court authorized "after the fact" minimization for intercepted communications. Under these procedures, all intercepted calls were first heard by on-duty agents at the Overland Park office, and recorded in their entirety. Calls in English were minimized by the agents immediately. Recordings of calls in Spanish were forwarded, as soon as practical after the call was terminated, to a Spanish linguist at the St. Louis Division Regional Intercept Wire room.
In St. Louis, the monitor would play the recording and decide within two minutes if the conversation related to the offenses cited in the wiretap order. If the conversation was related to such criminal activity, the monitor would translate and transcribe the conversation. If the conversation appeared unrelated, the monitor would not listen to the continuing conversation, except for subsequent "spot checks" to see to the conversation had begun to address criminal activity. The monitors logged the conversations and minimizations. The only portions of the intercepted communications which were translated were those the monitors found to be "pertinent." Calls shorter than two minutes were generally not minimized.
These minimization procedures were implemented prior to the TT5, TT6, and TT7 authorizations.
The evidence shows that the state court...
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