USA v. Renzi
| Citation | 722 F.Supp.2d 1100 |
| Decision Date | 04 June 2010 |
| Docket Number | No. CR08-212 TUC DCB BPV.,CR08-212 TUC DCB BPV. |
| Parties | UNITED STATES of America, Plaintiff, v. Richard RENZI, James Sandlin, Andrew Beardall, and Dwayne Lequire, Defendant. |
| Court | U.S. District Court — District of Arizona |
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Brian Matthew Heberlig, David Matthew Fragale, Reid Henry Weingarten, Henry Parker Vandyck, Steptoe & Johnson LLP, Kelly B. Kramer, Emily Crandall Harlan, Nixon Peabody LLP, Washington, DC, Francis J. Burke, Stacey Faith Gottlieb, Steptoe & Johnson LLP, Collier Ctr., Phoenix, AZ, for Defendant.
This matter having been referred to Magistrate Judge Bernardo P. Velasco, he issued a Report and Recommendation (R & R) on March 11, 2010. (Doc. 594.) The Magistrate Judge recommended denying in part and granting in part Defendant Renzi's Motion to Dismiss the Indictment Based on the Government's Unlawful Recording of Privileged Counsel Calls. (Doc. 87.) Defendant Renzi argued that the wiretap violated Title III, 28 U.S.C. § 2518, and the Fourth, Fifth and Sixth Amendments to the United States Constitution. The Magistrate Judge found violations of Title III and the Fourth Amendment, but not the Fifth and Sixth Amendments. He recommended suppression of all evidence obtained by the illegal wiretap, but denial of Defendant Renzi's request to dismiss the Second Superseding Indictment (SSI) or disqualify the prosecutors involved in his investigation and prosecution.
The parties filed objections to the R & R, pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Crim.P. 59(b). After de novo review, the Court adopts the Magistrate Judge's R & R as the opinion of the Court.
The duties of the district court in connection with a R & R are set forth in Rule 59(b)(3) of the Federal Rules of Criminal Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed.R.Crim.P. 59(b)(3); 28 U.S.C. § 636(b)(1). Where the parties object to a R & R, “[a] judge of the [district] court shall make a de novo determination of those portions of the [R & R] to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). When no objections are filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc).
The R & R appropriately began with the wiretap Order and the minimization protocol for attorney-client calls in the application for the wiretap approved by the Supervising Court. Prior to obtaining the wiretap, the Government identified the Patton Boggs law firm as representing Renzi from the Federal Election Commission (FEC) inquiry and criminal attorney, Grant Woods, as a possible additional lawyer. Agent Odom represented to the Supervising Court that all attorney-client privileged conversations would be minimized. The Supervising Court issued the wiretap Order directing the Government to minimize all such interceptions in accordance with Title III. (R & R at 1119-20.)
The wiretap Order included provisions for a “taint team” to be established to address contemplated interception of communications that implicated the Speech or Debate Clause, but it did not include any taint team provision to allow the Government to record or review communications implicating the attorney-client privilege. Id. at 1120.
The Government, however, did not apply these procedures and protocols to telephone communications between Defendant Renzi and attorney Maria Baier. The Government also failed to follow attorney-client protocols for two privileged telephone calls with Glenn Willard and one with Kelly Kramer.
The Magistrate Judge found that the Government seized evidence beyond that authorized by the wiretap Order when it recorded for taint team review attorney-client privileged communications between Defendant and attorney Maria Baier. The Magistrate Judge found that the Government unreasonably executed the wiretap when it recorded calls it knew or should have known were from attorneys representing the Defendant and then failed to seal and report to the Supervising Court the privileged information it seized. Id. at 1127. Specifically, the Magistrate Judge found 12 violations where the Government seized evidence beyond that authorized by the wiretap Order and unreasonably executed the search, as follows:
1. The government's failure to direct the minimization of the Baier calls after Renzi identified Baier as his “personal attorney” and an investigator found proof of Baier's licensure. R & R at 1128.
2. The government's failure to direct the minimization of the Baier calls after the initial consultation during the interception period with the taint attorney. R & R at 1125, 1128.
3. The failure to minimize session 2997 with Glenn Willard, an attorney for Renzi. R & R at 1128.
4. The government's failure to immediately minimize the call, session 3084, with Kelly Kramer. R & R at 1128.
5. The government's failure to designate any of the privileged calls as privileged [on the Voicebox system]. R & R at 1128.
6. Agent Dillender's recording, monitoring, synopsizing and designation of session 2997 as pertinent. R & R at 1128.
7. The government's failure to designate the recorded portion of session 3295 [with Glenn Willard] as privileged. R & R at 1128.
8. The government's distribution of privileged calls to Renzi's co-defendants. R & R at 1128.
9. The government's failure to inform the Supervising Court of calls which were monitored and recorded in violation of Renzi's attorney-client privilege. R & R at 1128.
10. The failure to seal all calls and seek direction from the Supervising Court at the conclusion of the interception, pursuant to 18 U.S.C. § 2518(8)(a). R & R at 1128.
11. The failure of the government at the outset of the wire to notify the Court of Renzi's representation by multiple counsel. R & R at 1128-29.
12. False statements in the ten-day reports, to include statements as to Baier's status, the minimization of calls with other attorneys, the omission of the statement [in an untranscribed call] that Baier was Renzi's personal attorney, and the omission of the taint attorney's initial conclusions [from the second and third ten-day reports]. R & R at 1129.
(Taint Attorney's Sealed Proposed Findings of Fact in Further Support of the Government's Objections to the Findings and Recommendation on the Motion to Dismiss the Indictment ... (doc. 610/612) (Taint Attorney's Objection) at 2).
The Government admits mistakes were made, but asserts that “nonetheless, the record makes very clear that the interception procedures were reasonable, professional, and effective, and that the prosecutors acted in good faith in all of their representations to the Supervising Court.” (Government's Objections (doc. 604) at 1-2.) The Government argues the Magistrate Judge erroneously recommended the extraordinary remedy of suppressing all the wiretap evidence, and the Court should only have suppressed the privileged evidence. Id. at 24. The Government argues it acted reasonably to minimize communications it inadvertently intercepted of non-Baier attorney calls from Kramer and Willard, id. at 28-31, and it was reasonable to use a taint team to review the intercepted Baier attorney calls, id. at 31. Regardless of any error, the interceptions of these privileged communications were “a small window of the overall interception period.” Id. at 26. Because the privileged interceptions were kept to a practical minimum, the extraordinary remedy of full suppression was not warranted because it should only be used when the violations of a warrant's requirements are so extreme that the search is essentially transformed into an impermissible general search. Id. at 27 (citing United States v. Mittelman, 999 F.2d 440, 444 (9th Cir.1993)).
The Defendant argues that the Government's deliberate targeting of privileged calls supports the Magistrate Judge's recommendation for a broad suppression of all the wiretap evidence. Defendant argues the Government intentionally or at least recklessly disregarded Title III requirements, which warrants total suppression. The Government's proposal to suppress only the privileged evidence is no remedy at all. Even suppression of all the wiretap evidence will not remedy the Government's unlawful conduct because the Government, including the prosecution team, has had access to the privileged information which led to the indictment of Codefendant Beardall and has provided insight into possible defenses Renzi may make at trial. This violates his Fifth and Sixth Amendment rights. Additionally, the Defendant argues the Magistrate Judge mis-allocated the burden of proof on these claims because the Government, admittedly, was exposed to privileged materials, and therefore, it bears the burden of proving non-use. The Defendant seeks disclosure by the Government of documents showing any use of the privileged calls, an order compelling the Government's attorney, Mr. Restaino, to testify, or the Court should find an adverse inference from his refusal to testify and hold a Kastigar hearing to resolve this question. The Defendant asks the Court to dismiss...
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