US v. Yoshimura

• Decision Date: 17 August 1993
• Docket Number: Crim. No. 93-00546 HMF.
• Citation: 831 F. Supp. 799
• Parties: UNITED STATES of America, Plaintiff, v. Mitsuo YOSHIMURA, aka Tsukasa Hosokawa Miyoko Yoshimura, Defendants.
• Court: U.S. District Court — District of Hawaii

831 F. Supp. 799

UNITED STATES of America, Plaintiff, v. Mitsuo YOSHIMURA, aka Tsukasa Hosokawa Miyoko Yoshimura, Defendants.

Crim. No. 93-00546 HMF.

United States District Court, D. Hawaii.

August 17, 1993.

Marshall Silverberg, Asst. U.S. Atty., Honolulu, HI, for U.S.

Peter Wolff, Jr., Hart & Wolff, Honolulu, HI, for defendant Mitsuo.

Philip Lowenthal, Lowenthal & August, Wailuku, Maui, HI, for defendant Miyoko.

ORDER DENYING DEFENDANT'S MOTION FOR ORDER REQUIRING DISCLOSURE OF REDACTED PORTIONS OF GOVERNMENT'S AFFIDAVITS FILED IN SUPPORT OF APPLICATIONS FOR ELECTRONIC SURVEILLANCE

KURREN, United States Magistrate Judge.

On June 30, 1993, defendant Mitsuo Yoshimura ("Yoshimura") was indicted by a grand jury under a First Superseding Indictment for violation of 21 U.S.C. §§ 841(a)(1), 846, 848, 952(a), 960(a)(1), 963, 18 U.S.C. § 2. On July 8, 1993, Yoshimura filed a Motion for Order Requiring Disclosure of Redacted Portions of Government's Affidavits Filed in Support of Applications for Electronic Surveillance.

Yoshimura protests that in response to his request for discovery, plaintiff United States of America ("Government") moved this court ex parte "to unseal redacted versions of affidavits filed in support" of the Government's applications for electronic surveillance. Yoshimura asserts that the redactions make it impossible for his counsel to effectively use the material to prepare pretrial motions, including motions challenging the legality of the electronic surveillance, and to prepare for trial. The Government opposes the motion and has submitted documents to the court indicating what was redacted for ex parte, in camera review. The matter came on for hearing on July 23, 1993. Plaintiff was represented by Assistant U.S. Attorney Marshall Silverberg; defendant Mitsuo Yoshimura was represented by counsel Peter C. Wolff; defendant Miyoko Yoshimura was represented by counsel Philip H. Lowenthal. After hearing the arguments of counsel and reviewing the memorandum and affidavits submitted, the court finds as follows:

Background

In January 1990, the Federal Bureau of Investigation ("FBI") initiated an investigation into the alleged criminal activities of Japanese organized crime organizations ("Yakuza") in the District of the Northern Mariana Islands. As part of that investigation, the FBI determined that two telephones in Saipan were being used by the Yakuza to further their activities on Saipan. On December 19, 1993, United States District Judge Alex R. Munson issued an order authorizing the interception of conversations over the two telephones on Saipan after examining a wiretap application by the U.S. Attorney's Office in Saipan, which included an affidavit by Special Agent Derrick Edmond of the FBI. On January 13, 1993, Judge Munson issued a similar order that authorized electronic surveillance on one of the telephones previously authorized, after considering an additional application and affidavit of Special Agent Edmond. At that point in time the FBI investigation focused on subjects who were suspected of committing crimes in Saipan.

The FBI, however, had a cooperating individual in Saipan introduce one of the subjects, Nobuaki Imai, in Saipan to a cooperating individual living in Hawaii and negotiations began to ship drugs from Japan to Hawaii, instead of to Saipan. According to the Government only some of the targets previously identified in the Saipan wiretap applications were involved in the shipments to Hawaii. During February, 1993, the government claims an agreement was reached between Imai, Keisuki Komine, aka Keisuke Hayashi, and others to sell 300 grams of crystal methamphetamine to the cooperating individual based in Honolulu.

Based on this information, on February 17, 1993, the U.S. Attorney's Office in the District of Hawaii applied for an order authorizing the interception of wire and oral communications of a telephone located in a hotel room in Waikiki, and in the room itself. The application included an affidavit from Special Agent John Ferriera, which incorporated by reference the two previous affidavits of Special Agent Edmond. (Government's memorandum in Opposition, Exhibits 1 and 2). The application was granted and an authorizing order was issued by U.S. District Judge Martin Pence that same day. A second order was also issued by Judge Pence on February 17, 1993, which is not a subject of the current motion.

Between February 17, 1993, and March 30, 1993, the Government asserts Keisuke Hayashi and the cooperating individual discussed another shipment of crystal methamphetamine from Japan to Hawaii. Ultimately, the parties allegedly agreed that Hayashi, along with his boss ("kaicho") would travel to Hawaii with two kilograms of crystal methamphetamine for a price of $300,000. On March 30, 1993, the Government applied for an order authorizing electronic surveillance in two hotel rooms in which Hayashi and his boss were supposed to reside. In support of that application, the Government attached an affidavit of Special Agent John Blake, which incorporated by reference all four of the previous affidavits. Government's Memorandum in Opposition, Exhibits 1-4. After reviewing the application and affidavit Judge Pence issued the authorizing order.

After experiencing technical difficulties in establishing the electronic surveillance on the targeted rooms, the Government applied for an amended order for two other rooms, and attached another affidavit by Special Agent Blake. There are no redactions on that affidavit. It did incorporate by reference all the earlier affidavits, however. On March 31, 1993, the order was executed. On April 1, 1993, defendants Mitsuo Yoshimura, Keisuke Hayashi, and Yoshihide Ida were arrested. Nobuaki Imai was arrested later.

After the initial indictment was returned on April 7, 1993, the Government received a discovery request from Yoshimura. In response to that request, the Government moved, pursuant to 18 U.S.C. § 2518(9), for permission from the court to release redacted versions of the four affidavits filed in support of the applications for electronic surveillance. The Government claimed that if the portions that had been redacted were released, "then the ongoing investigation in Saipan would be jeopardized and the safety of undercover FBI agents would be threatened." Memorandum in Support of Motion at 4. On April 20, 1993, Judge Pence granted the motion.

Discussion

The Government asserts that this investigation is part of a larger investigation of Japanese organized crime activity on Saipan and maintains that the part of the investigation discussed above included the identification of other persons who had no known role in the charges pending against the defendants. The Government asserts that based on all the debriefings of Keisuke Hayashi, Nobuaki Imai and Yoshihide, none of them indicated that any of the persons redacted from the affidavits played a role in the drug shipments charged in the First Superseding Indictment. In addition, the Government believes that in the future the persons whose identities and activities were redacted from the affidavits will continue to use the redacted telephone number. The Government contends that if the redacted portions of the affidavits were released publicly, thereby disclosing the telephone number in question, or where it is located, or the persons who are suspected of using the telephone number to conduct illegal activities, then these additional suspects would be warned, the undercover investigation might have to be terminated, the identities of the FBI undercover agents might be ascertainable and their safety would be threatened if the investigation were to continue, and the possibility of filing charges against the suspects would be reduced significantly.

Yoshimura concedes that the Government has a privilege to withhold from disclosure certain confidential information. "The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement." Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). The scope of the privilege is limited by its underlying purpose and the fundamental requirements of fairness. Id., 353 U.S. at 59-60, 77 S.Ct. at 627-628. However, where the disclosure of such information to defense counsel "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause," then confidentiality "must give way." Id., 353 U.S. at 60-61, 77 S.Ct. at 628.

The Government asserts that Yoshimura's defense will not suffer any prejudice by the redactions. The Government claims that each of the redactions concerns either: (1) the identity of the FBI undercover agent; (2) the telephone number and location of the targeted telephone on Saipan; or (3) identities of the targets of the electronic surveillance who have not been indicted in this case and who have absolutely no connections with the charges facing the defendants. In addition, the Government contends that the Edmond affidavits were incorporated by the Ferreira and Blake affidavits to provide background material and were not the primary source of the probable cause for the wiretaps at issue here. Finally the Government states that it is prepared to defend the probable cause for the electronic surveillance orders without reliance upon any of the redacted excerpts and does not intend to use any of the conversations overheard pursuant to the two Saipan wiretap orders in this case. The Government has provided the court with the non redacted versions of the affidavits so that the court may review the material for Brady or any other information that might be helpful to the defense. The Federal Wiretap Law and Constitutional Considerations:

In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act. Title III of the Act covered wiretapping and electronic surveillance. Title III had two goals: "(1) protecting the...