United States v. Romero

• Decision Date: 06 March 2020
• Docket Number: NO.1:17-CR-00153-TH (ZH),1:17-CR-00153-TH (ZH)
• Parties: UNITED STATES OF AMERICA v. ALVARO ROMERO (1), ARTURO ELIZONDO (2), RICARDO AVILES (4), JOSE RUBIO-VILLEGAS (6), INES RUBIO-VILLEGAS (7), ALEXANDER ALONSO-MASCORRO (8), and SIDNEY ANTHONY WORRELL (10).
• Court: U.S. District Court — Eastern District of Texas

UNITED STATES OF AMERICA v. ALVARO ROMERO (1), ARTURO ELIZONDO (2), RICARDO AVILES (4),JOSE RUBIO-VILLEGAS (6), INES RUBIO-VILLEGAS (7),ALEXANDER ALONSO-MASCORRO (8), and SIDNEY ANTHONY WORRELL (10).

NO.1:17-CR-00153-TH (ZH)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION

March 6, 2020

REPORT AND RECOMMENDATION DENYING DEFENDANTS' MOTION TO SUPPRESS

Pending before the undersigned is Defendant, Sidney Anthony Worrell's, "Motion to Suppress Text Messages, Cooperating Witness Testimony and Physical Evidence."¹ (Doc. No. 370.) Defendants Alonso-Mascorro (Doc. No. 373)², Jose Rubio-Villegas (Doc. No. 374), Alvaro Romero (Doc. No. 375), and Ines Rubio-Villegas (Doc. No. 379) filed motions to adopt Worrell's motion to suppress. The undersigned grants the motions to adopt, but recommends denying the the motion to suppress for the reasons explained below.

I. Background

In 2013 and 2014, the United States Drug Enforcement Administration conducted an investigation into the Romero Drug Trafficking Organization. (Doc. No. 181 at 1.) During this investigation, the Government filed eight applications for orders authorizing the interception of wire and electronic communications (the "Wiretap Orders").³ On August 10, 2018, Defendant Worrell filed a motion to suppress all "fruits" of the interception of wire communications of his cellular phone on the grounds that the interception orders were facially insufficient.⁴ (Dkt. No. 172) (hereinafter "Worrell's Original Motion to Suppress"). On November 2, 2018, the undersigned entered a Report recommending that the Court grant Worrell's Original Motion to Suppress on the grounds that the wiretap orders were facially insufficient because they did not contain the identity of the high-level Justice Department official who approved the applications, as required by 18 U.S.C. § 2518(4)(d). Important to this analysis, the Report made no recommendation whether to suppress text messages or electronic communications:

". . . the undersigned does not need to resolve [whether the text messages should be excluded]. The Defendants have not moved to suppress any electronic communications, nor does the evidence establish that the Defendants had any electronic communications intercepted by authority of the Wiretap Orders."

(Dkt. No. 201, p. 8.) The District Court adopted the Report and Recommendation. (Doc. No. 220; 2018 WL 6981231, at *1 (E.D. Tex. Nov. 2, 2018), report and recommendation adopted, 2019 WL 137586 (E.D. Tex. Jan. 8, 2019). The Government filed an interlocutory appeal to the Fifth Circuit Court of Appeals on January 23, 2019. United States v. Romero, et. al., 19-40045 (5th Cir.). The appeal was dismissed at the Government's request on April 5, 2019. No. 19-40045, 2019 WL 3297470 (5th Cir. Apr. 5, 2019). On April 24, 2019, the Government filed a "Motion to Admit Text Messages and Cooperating Witness Testimony." (Doc. No. 289.) The Government claimed that despite the court's suppression of wire communications, the Government should still be allowed to admit text messages "because they were obtained in compliance with Title III and are not fruits of the interception. Similarly, the Government should be able to present testimony from cooperating defendants for the same reason." (Id., p. 1.) The undersigned recommended denying the Government's motion because there was no pending motion to suppress text messages or cooperating witness testimony, making the Government's request in effect an advisory opinion. (Doc. No. 311.)

II. Motion to Suppress Text Messages, Cooperating Witness Testimony andPhysical Evidence

Defendants now request suppression of electronic communication, specifically text messages, and the evidence derived therefrom that was intercepted as a result of the facially insufficient Wiretap Orders.⁵ For support, the Defendants rely on United States v. Smith, 978 F.2d 171, 175 (5th Cir. 1992), to argue that Title III's exclusionary rule applies to wire, oral, and electronic communications. Id. The Defendants argue that the text messages are subject to suppression because they were discovered as a result of the facially insufficient Wiretap Ordersand should be considered fruit of the poisonous tree.⁶ Defendants also argue that the text messages are subject to exclusion because the government is required to comply with the statutory requirements applicable to wire communications (codified at 18 U.S.C. § 2518) when applying for a hybrid (wire and electronic) interception order.

The Government responds that even though the wire communications were suppressed, the intercepted text messages should be admitted because they were obtained in compliance with Title III and are not fruits of the wire interception.

On February 12, 2020, the undersigned held a hearing on the Defendants' motion to suppress.

III. Analysis

Text messages

Title III—the federal statute governing authorization of wiretaps—provides in relevant part that:

Any attorney for the Government (as such term is defined for the purposes of the Federal Rules of Criminal Procedure) may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant, in conformity with section 2518 of this title, an order authorizing or approving the interception of electronic communications by an investigative or law enforcement officer having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of any Federal felony.

18 U.S.C. § 2516 (3) (emphasis added). It is undisputed that the wiretap applications at issue—those seeking the interception of electronic communications, including text messages—weremade by a Special Assistant United States Attorney, who is an authorized party to apply for a wiretap order under 18 U.S.C. § 2516(3).⁷ Thus, the interception of electronic communications was properly authorized by the district court's Wiretap Orders, and the Defendants seem to concede this point. Instead, the pertinent issue before the court now is whether the electronic communications, which were lawfully intercepted, should nevertheless be suppressed under 18 U.S.C. § 2518 because they were discovered as a result of a facially invalid wiretap order.

The Government contends that the scope of § 2518 does not allow for statutory suppression of electronic communications obtained as a result of the Wiretap Orders. Specifically, section 2518 (10)(a) applies only to "wire or oral communications," not electronic communications. Section 2810 provides

Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.

18 U.S.C.A. § 2518(10)(a) (emphasis added). See also 18 U.S.C. § 2515 (defining the statutory scope of the Title III exclusion remedy) ("Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrommay be received in evidence in any trial, hearing, or other proceeding . . . if the disclosure of that information would be in violation of this chapter") (emphasis added).

In response, the Defendants contend that established Fifth Circuit precedent holds that Title III's exclusionary rule applies equally to wire, oral and electronic communications. United States v. Smith, 978 F.2d 171, 175 (5th Cir. 1992). In Smith, the Fifth Circuit commented, without explanation, that the Title III exclusionary rule applies to all three types of communication: wire, oral, and electronic. Id. ("[T]his exclusionary rule only applies to communication that is 'wire,' 'oral,' or 'electronic'") (internal citations omitted).⁸ However, Smith is factually distinguishable because the Defendant sought to suppress cordless telephone conversations and not text messages. In the twenty-eight years since Smith, the Fifth Circuit has not further defined its remark nor definitively applied the suppression remedy of Title III to text messages. Furthermore, it is unclear what the Fifth Circuit intended when it mentioned that the exclusionary rule applies to electronic communications, but it is certain that it could not have intended to include text messages as they were not yet commercially available. (Id.)

Many courts recognize that the Title III exclusionary rule does not apply to electronic communications. See United States v. Apodaca, 287 F. Supp. 3d 21, 31 (D.D.C. 2017) (holding that the exclusion remedy is limited to improper interception of wire and oral communications); United States v. Steiger, 318 F.3d 1039, 1052 (11th Cir. 2003) (examining the legislative history of the ECPA to conclude that "a statutory suppression remedy does not exist for unlawful interceptions of 'electronic communications'"); United States v. Meriwether, 917 F.2d 955, 960 (6th Cir. 1990) (holding that "[t]he ECPA does not provide an independent statutory remedy ofsuppression for interceptions of electronic communications); United States v. Banks, 2014 WL 4261344, at *2 (D. Kan. Aug. 29, 2014) ("the statutory suppression remedy extends to wire and oral communications only"). Some of these courts relied on the legislative history to show that Congress agreed not to add electronic communication to the statutory exclusionary rule, but instead added 18 U.S.C. § 2518(10)(c), which provided for suppression of electronic communications only under the judicially created exclusionary rule.⁹

Despite the conflicting application of § 2518...