United States v. Freeman
| Decision Date | 08 July 2011 |
| Docket Number | Case No. 10-20635 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ERIK LYLES FREEMAN, REYMOYNE LYNN THORNTON, VANESSA EDITH GUDINO, ANTHONY LYLES, CHANGA-ORONDE LYLES, Jr., APOLINAR LUCERO, BRANDON RICHARD SCOTT, and JAMES ALVIN WATTS,Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable David M. Lawson
Following the filing by defendant Erik Freeman of a motion to suppress evidence collected through a wiretap and the government's effort to present wiretap authorization documents to the Court without making them part of the record, the Court entered an order requiring that (1) the parties confer and jointly file an appendix containing the documents required to adjudicate the motion; and (2) the submitted documents be un-redacted. The Court permitted the government to file a motion under Local Rule 5.3(b) if the government had good reasons to file the documents under seal. The Court also characterized as an ex parte contact the government's attempt to lodge the wiretap documents in chambers without making them part of the record. Now before the Court is the government's motion to reconsider that order, alleging that the government should not have to seek separate permission to seal the wiretap documents because a sealing order was entered in a separate file that authorized the wiretaps, there are reasons for sealing and redacting the documentsbecause of an ongoing investigation and the safety of informants, and its effort to present the documents should not be characterized as an ex parte communication because the defendants were given copies during discovery and the government did not seek advantage when it privately lodged the documents with the Court. After ordering responses from the defendants, the Court held a hearing on the motion for reconsideration on June 10, 2011. The Court now finds that reconsideration is appropriate as to some aspects of the Court's prior order and will grant the government's motion in part.
On October 28, 2010, defendants Erik Lyles Freeman, Reymoyne Lynn Thornton, Changa-Oronde Lyles, Jr., Apolinar Lucero, Brandon Richard Scott, Vanessa Edith Gudino, Anthony Lyles, and seven others were charged in a 37-count indictment alleging various drug, weapons, and money laundering offenses. The indictment also sets forth criminal forfeiture allegations, seeking a forfeiture money judgment in the amount of $27,766,800.
During the investigation of the alleged conspiracy, the government applied for and obtained orders permitting the interception of cellular telephone communications. The initial wiretap application was submitted to and approved by Judge Bernard Friedman (Tracking No. 09US60058-B) on September 29, 2009. A subsequent wiretap application (for the same target telephone number) was submitted to the court and was signed by Judge Stephen Murphy in Judge Friedman absence on October 31, 2009 (Tracking No. 09US60058-B1). Both the initial interception order and the subsequent renewal authorized the interception of a targeted telephone number used by defendant Erik Freeman. It is not clear whether the wiretap order was renewed again, but thegovernment contends that on February 8 of this year, Judge Robert Cleland of this district entered a protective order sealing the documents relating to the wiretap.
On April 27, 2011, defendant Freeman filed a motion in the present case to suppress evidence obtained through electronic surveillance, alleging that the statutory prerequisites for intercepting the conversations were not established and the interception violated the Fourth Amendment. Defendants Reymoyne Lynn Thornton, Changa-Oronde Lyles, Jr., Apolinar Lucero, Brandon Richard Scott, Vanessa Edith Gudino, and Anthony Lyles have filed notices of joinder in the motion. The government has filed a response. Neither the motion nor the response includes the wiretap application, supporting affidavit, or authorizing order.
The government lawyer sent an e-mail message to the Court's case manager on May 17, 2011 expressing its desire to furnish a copy of the wiretap applications, affidavits, orders, and interim reports to the Court. Government counsel said she was hesitant to file the documents on the public record, suggesting there may be information that could identify a confidential source. In the e-mail message, government counsel communicated the fact that it had furnished copies of the materials to the defendants as part of the discovery packet in the case.
Through its case manager, the Court informed government counsel that the documents should be made a part of the record in this case and that if there were grounds to seal the documents, the government should describe them in a motion to seal. Counsel for the government informed the Court that the documents were under seal in a different proceeding — the wiretap file — under an order entered February 8, 2011 by Judge Cleland. This Court repeated its instructions to the government that anything submitted in support of or opposition to the motion must be made part ofthe record and filed in this case, and if sealing was desired, the government should present its grounds in an appropriate motion.
Despite these clear instructions, on May 18, 2011, the government counsel caused to be delivered to the Court's chambers a binder purportedly containing redacted copies of the wiretap applications, affidavits, orders, interim reports for the wiretaps authorized on September 29, 2009 and October 31, 2009, and the order entered by Judge Cleland concerning those documents. The Court did not review the contents of the binder. Instead, upon receiving the materials, the Court directed its case manager to contact government counsel to inform her that it viewed its delivery of the materials as an improper attempt at ex parte communications, and ordered her to return to chambers and retrieve the materials immediately. This time, the government complied.
The government filed its response to defendant Freeman's motion to suppress on May 18, 2011, the same day it submitted the materials to the Court. In its response, the government stated that the Title III materials were provided to the defendants as part of the discovery packet for this case, and therefore its separate, off-the-record submission of the documents to the Court in connection with its defense of the motion to suppress was not an ex parte contact. Copies of the relevant wiretap documents were not included with the government's answer.
On May 26, 2011, the Court entered an order requiring the government and the defendants who have joined in this motion to confer and prepare a joint appendix containing unredacted copies of the Title III applications, orders, and supporting affidavits that are being challenged in the defendant's motion to be submitted to the Court on the record no later than June 3, 2011. That filing never occurred. Instead, on June 1, 2011 the government filed a motion for reconsideration of the Court's May 26, 2011 order. On June 3, 2011, the Court entered an order directing the defendantsto respond to the government's motion. Defendants Scott, Gudino, Anthony Lyles, and Changa-Oronde Lyles have filed responses. Defendant Freeman did not file a response because he was between attorneys at the time.
At the June 10, 2011 hearing on the motion, Rita Foley, the assistant United States attorney that has been defending the suppression motion, explained that she pursued the course of conduct described above based on advice she received from more experienced attorneys in her office. According to her explanation, it appears to be the view of the United States Attorney's Office in this district that documents on file in any case in this district are part of the record in every other case. When asked to address the Court's concern about ensuring a complete record in the likely event that a decision on the motion would be reviewed by another court, Ms, Foley stated that "the Appellate Division in my office . . . advised that it would be made part of the record on appeal pursuant to a [Federal Rule of Appellate Procedure] 10(e) order, which allows parties to make sealed materials part of the record on appeal." Mot. Recon. Hr'g Tr., June 10, 2011, at 14-15. The appellate division also told Ms. Foley that "because [the wiretap documents] were sealed in the Eastern District of Michigan, that they would, in fact, be part of the record in this case." Id. at 15. When asked why she ignored the Court's direction to file the documents and not present the unfiled items to chambers, Ms. Foley explained that someone "more senior in [her] office . . . informed [her] that [the documents were] already filed as part of the record, albeit under the tracking number for the wiretap, and that since it was under seal and subject to a protective order, that I should not file it under this case number." Id. at 16.
Motions for reconsideration may be granted pursuant to E.D. Mich. LR 7.1(h)(3) when the moving party to shows (1) a "palpable defect," (2) that misled the court and the parties, and (3) that correcting the defect will result in a different disposition of the case. E.D. Mich. LR 7.1(h)(3). "A 'palpable defect' is a defect which is obvious, clear, unmistakable, manifest, or plain." Mich. Dep't of Treasury v. Michalec, 181 F. Supp. 2d 731, 734 (E.D. Mich. 2002) (citations omitted). However, motions for reconsideration should not be granted when they "merely present the same issues ruled upon by the court, either expressly or by reasonable implication." E.D. Mich. LR 7.1(h)(3).
It is elemental that a motion challenging the propriety of a wiretap order requires the Court to review the authorizing order itself and all supporting documents submitted to the authorizing judge in order to ensure compliance with Title III of the...
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