United States v. Rodrigues

• Decision Date: 01 March 2017
• Docket Number: No. 15-1377,15-1377
• Citation: 850 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Martinho RODRIGUES, a/k/a Thoey, a/k/a Tho, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

850 F.3d 1

UNITED STATES of America, Appellee,

v.Martinho RODRIGUES, a/k/a Thoey, a/k/a Tho, Defendant, Appellant.

No. 15-1377

United States Court of Appeals, First Circuit.

March 1, 2017

Inga L. Parsons for appellant.

Kelly Begg Lawrence , Assistant United States Attorney, with whom Carmen M. Ortiz , United States Attorney, was on brief, for appellee.

Before Torruella, Selya, and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

A Massachusetts jury failed to reach a unanimous verdict on a multiple count indictment charging Martinho Rodrigues with conspiring with 29 others to distribute assorted drugs in several Boston area neighborhoods. Rather than face a repeat trial, Rodrigues opted to plead guilty to Count One, conspiracy to distribute marijuana in violation of 21 U.S.C. § 846, but he preserved his right to appeal the trial court's denial of his motion to suppress. Before us, he claims the government, in bad faith, failed to meet the strict procedural requirements for obtaining wiretaps under 18 U.S.C. § 2517 –2522. He also argues that the court erred in denying him a hearing to explore his misrepresentation and bad faith concerns. For the following reasons, we affirm the district court's ruling.

Background

In the summer of 2011, the Federal Bureau of Investigation ("FBI") and the Boston Police Department ("BPD") initiated an investigation into the purported drug-trafficking activities of the Woodward Avenue and Hendry Street gangs in Roxbury and Dorchester, Massachusetts. During the course of the investigation, the district court issued four, successive 30–day orders authorizing the interception of six cell phones known to be used by Alexis Hidalgo and Jonathan Dasilva—two gang members from whom a cooperating witness had conducted several controlled purchases.

The first order, on August 8, 2012, authorized the interception of target telephones #1 and #2 ("TT1" and "TT2"), which were known to be used by Hidalgo. The wiretap expired on September 7, 2012—thirty days after its authorization—and the wiretap application and affidavit in support of the application were sealed until further order of the court. On September 5 and 7, the district court granted the government's motions to seal the resulting recordings from the wiretap and to postpone inventory notice¹ to targeted subjects until further order of the court for all communications intercepted.

The second order was granted on September 25, 2012. The government sought and was granted authorization to intercept target telephones #3 and #4 ("TT3" and "TT4")—both known to be used by Hidalgo and Dasilva in furtherance of the drug-trafficking offenses. Like the first wiretap, the September 25 wiretap was to expire thirty days after its authorization on October 25, 2012. Unlike the first wiretap, however, the government did not immediately request to seal the resulting recordings or postpone inventory notice from the second wiretap by the date of its expiration. Instead, on October 24, 2012—a day before the September 25 wiretap was slated to expire—the government submitted a third wiretap application in which it sought authorization of a new target, telephone #5 ("TT5"), as well as the continued interception of TT3 and TT4 that had initially been granted in the September 25, 2012 order (and slated to end October 25, 2012). The district court granted the government's request, for thirty days. On November 27, 2012—four days, or two business days, after the October 24 order expired—the district court granted the government's motion to seal the recordings and postpone inventory notice until further order of the court for all communications intercepted on TT3, TT4, and TT5.

On December 21, 2012 the government submitted its fourth and final wiretap application. In that application, the government sought to renew its interceptions of TT3, TT4, and TT5, and also sought to intercept communications from a final target telephone #6 ("TT6"). The district court granted the government's motion. Both the renewals of TT3, TT4, and TT5 and the initial interception of TT6 were all set to expire—again, 30 days after their authorization—on January 20, 2013. On January 18, 2013 the court granted the government's motion to seal the resulting recordings and postpone inventory notice on communications intercepted pursuant to the December 21, 2012 order.

As a result of the government's investigation, Rodrigues, along with 29 co-defendants, was charged with conspiracy to distribute cocaine base, cocaine, oxycodone, and marijuana in violation of 21 U.S.C. § 846. The magistrate judge subsequently held grouped detention hearings and Rodrigues proceeded alongside co-defendant Moises Figueroa. During the two-day hearing held on May 21 and June 10, 2013, BPD Detective Martin O'Malley testified and submitted an affidavit in support of the government's detention motion. O'Malley testified that Rodrigues was a known associate of Hidalgo and Dasilva from the outset of the investigation and that Rodrigues had been observed on pole camera footage at a meeting spot for the Woodward and Hendry Street gangs. Despite this knowledge, however, Rodrigues was never listed as a target subject in any of the four wiretap applications submitted by the government. Yet, in the December application Rodrigues was mentioned as the individual who agents believed Dasilva referenced during an intercepted call. At the close of the hearing, the court issued an order of detention, remanding Rodrigues into custody pending trial.

In pretrial proceedings, Rodrigues filed a motion to suppress evidence obtained pursuant to the issued wiretaps. In that motion, Rodrigues raised four arguments, namely, that: (1) the government deliberately and in bad faith omitted him as a target subject and as an identifiable person overheard on all four wiretap applications in violation of 18 U.S.C. § 2518(1)(b)(iv) and 18 U.S.C. § 2518(8)(d) ; (2) the government's wiretap applications failed to show necessity or demonstrate that alternative investigative techniques would not succeed as required pursuant to 18 U.S.C. § 2518(1)(c) ; (3) the government failed to present the tapes for timely sealing pursuant to 18 U.S.C. § 2518(8)(a) ; and (4) that the court should hold a Franks hearing to explore his allegations of bad faith. The court denied Rodrigues's motion to suppress without a hearing.

With regard to Rodrigues's bad faith claim, the court found that he failed to make a credible case for his contention that the government deliberately failed to list him in the wiretap applications. Specifically, the district court found that a purposeful violation in a case like this, where there was a "30–plus defendant criminal conspiracy" and "there was almost complete compliance with subsection 8(d) [of Title III]," was extremely unlikely. In denying his motion, the court found that Rodrigues had not demonstrated any actual "prejudice resulting from the violation" and that he pointed to no real evidence in the record to substantiate that the violation was an intentional one.

With regard to Rodrigues's claim that the government's applications failed to meet the Title III necessity requirement (i.e., that other investigative techniques would not have succeeded), the district court found that the "details [of the initial wiretap affidavit were] extensive and persuasive, and certainly, [as our case law requires,] ‘minimally adequate’ to support the authorization of a wiretap." The court also found that the affidavit in support of the government's application sufficiently stated the unfulfilled goals of the investigation which necessitated the wiretap and, citing United States v. Martinez , 452 F.3d 1, 6 (1st Cir. 2006), that those goals were "nearly identical to those accepted as valid by the First Circuit in the face of an identical challenge."

With regard to Rodrigues's claim that the recordings from the September and October wiretaps were not timely sealed, the district court found that the October wiretap order was in fact an extension of the September wiretap order and that "a two business-day delay [did] not violate 18 U.S.C. § 2518(8)(a), particularly where, as here, the expiration date was the day after Thanksgiving, and the recordings were kept in a secure location with limited access and password protection."

With the district court finding the wiretap evidence admissible, Rodrigues proceeded to trial on March 2, 2015. However, at the close of trial, the jury was unable to reach a verdict and the district court declared a mistrial. After the mistrial, Rodrigues, as we noted earlier, pled guilty solely to the marijuana conspiracy, reserving his right to appeal the denial of his suppression motion. So here we are.

Discussion

Before delving into the merits of Rodrigues's claims, some brief background on the general setup of the federal wiretap statute might prove helpful. "Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials." Dalia v. United States , 441 U.S. 238, 249, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). Indeed, "Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968 with the stated purpose of ‘(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.’ " United States v. Cartagena , 593 F.3d 104, 108 n.1 (1st Cir. 2010) (quoting Gelbard v. United States , 408 U.S. 41, 48, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972) ). And where law enforcement authorities fail to comply fully with the requirements of Title III, suppression may be merited if "the communication was unlawfully intercepted; the order of authorization or approval" under which it was...