United States v. Diaz

1

UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO DIAZ, Defendant.

No. 24-CR-0032 MV

United States District Court, D. New Mexico

February 8, 2024

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, SENIOR UNITED STATES DISTRICT JUDGE.

THIS MATTER is before the Court on Mr. Diaz's Motion to Dismiss the Indictment for Government Infringement of Mr Diaz's Sixth Amendment Right to Counsel [Doc. 18] and Mr Diaz's Motion for Evidentiary Hearing on Defendant's Motion to Dismiss for Government Infringement of Mr Diaz's Sixth Amendment Right to Counsel [Doc. 79]. Having considered the briefs and relevant law, and being otherwise fully informed, the Court finds that neither motion is well-taken and both will be denied.

BACKGROUND

On September 3, 2019, agents with the Drug Enforcement Administration (“DEA”) and officers with the Region III Narcotics Task Force (collectively “agents”), executed a warrant authorizing the search of Francisco Diaz's home at 7 Josephine Road in Santa Fe, New Mexico. After completing both the search and an interview of Mr. Diaz, the agents arrested Mr. Diaz and seized, among other devices, an iPhone in a black case, which they identified internally as “N-26.” On September 19, 2019, Mr. Diaz provided written consent to the search of his devices, including the N-26 iPhone. Although the agents attempted to search Mr. Diaz's devices, the Cellebrite technology available at that time was not capable of extracting useful content from the phone.

On April 26, 2023, the government obtained a search warrant for the N-26 iPhone.

Examiners at the Regional Computer Forensics Laboratory (“RCFL”) were unsuccessful in their attempts to extract data from the phone, and cancelled the extraction on May 22, 2023. On September 28, 2023, however, a supervisor at RCFL advised agents that, with new software updates, it might be possible to extract data from the phone, and offered to make another attempt at doing so. Consequently, on September 29, 2023, the government obtained a second search warrant for the iPhone. The attempts to extract data, however, were again unsuccessful.

Thereafter, on October 27, 2023, the government obtained a third warrant for the N-26 iPhone. The warrant was issued in the District of Columbia and allowed the Computer Crime and Intellectual Property Section's Cybercrime Laboratory (“Cybercrime Lab”) to attempt to access the device. The Cybercrime Lab created a “Preliminary Device Report” containing limited data from the phone, including an Apple ID, fdiazjr82@me.com (“Apple ID”), and an associated telephone number, 505-490-3533 (“Phone Number”).

Based on that data, on November 13, 2023, the government obtained a search warrant for data from January 1, 2019 to the present, stored at a premises controlled by Apple, Inc., associated with both the Apple ID and the Phone Number. In response to the search warrant, on November 28, 2023, Apple provided to the government emails with links to files encrypted with GPG software. On November 29, 2023, the government forwarded the materials to the Cybercrime Lab, which then provided the government with a zip file containing Cellebrite extractions from the iCloud account associated with the Apple ID and the Phone Number (“Zip File”).

On November 30, 2023, Assistant United States Attorney David Hirsch downloaded the data from the Zip File. On December 4, 2023, the government produced the Zip File to defense counsel. Before producing the Zip File to defense counsel, Mr. Hirsch began to review the data, but had only reviewed a small portion of the data at that point, and his review did not reveal any attorney-client or otherwise privileged communications. On the afternoon of December 7, 2023, Mr. Hirsch provided a copy of a portion of the data to a DEA intelligence analyst and requested that the analyst review the photos and videos for evidence of drug trafficking or related firearms possession.

At 9:55 p.m. on December 7, 2023, Mr. Diaz filed the original version of the instant motion, arguing that, by obtaining data associated with the Apple ID and the Phone Number for a date range that extended beyond the date of Mr. Diaz's arrest, the government accessed attorney-client privileged communications in violation of Mr. Diaz's Sixth Amendment right to counsel.^[1] The following day, Mr. Hirsch instructed the DEA analyst to suspend his review of the production and to refrain from disclosing any of the results of his review. Thereafter, the government set up a “filter team,” with the intention that the filter team would examine whether the data included any privileged communications, screen any such communications out from the remainder of the data, provide the remaining data to defense counsel for her review, and then, once defense counsel confirmed that the remaining data did not contain privileged communications, provide the data to the trial team.

DISCUSSION

I. Mr. Diaz Is Not Entitled to an Evidentiary Hearing.

On February 7, 2024, Mr. Diaz filed a Motion for Evidentiary Hearing. Doc. 79. Mr. Diaz alleges in his motion that the government has not produced the entire iCloud download that the government received from Apple. Id. at 1-2. Mr. Diaz states that he received two flash drives on February 1, 2024 containing the iCloud data, and that on February 6, 2024, Wade Swift, a telephone forensics expert, advised Mr. Diaz's counsel that “it is possible the government filtered the data it provided to the defense as it appears the defense was not provided the raw data obtained from Apple.” Id. at 3. In the motion, Mr. Diaz requests an evidentiary hearing so that he may “present evidence that the government indeed is in possession of privileged communications.” Id.

The government filed a Response, opposing the request for an evidentiary hearing. Doc. 81. In the Response, the government represents that defense counsel was initially provided with the extracted Cellebrite data on December 4, 2023. Id. at 2. Defense counsel reported no issues with the data until January 17, 2024. Id. at 3. On February 1, 2024, the government sent two more USB drives containing both the raw data and the filtered non-privileged iCloud extraction. See Doc. 81-2 at 2. The defense has not provided a log correcting any errors in the filter team's review. Doc. 81 at 8. The government requests that the defense provide them with a log by Monday, February 12, 2024. Id.

“A defendant who requests a hearing bears the burden of showing that there are disputed issues of material fact.” United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir. 1995) (quoting United States v. Woods, 995 F.2d 713, 715 (7th Cir. 1993)). Mr. Diaz has not made such a showing. The only fact that Mr. Diaz intends to demonstrate at the evidentiary hearing is that he now has documents confirming that the government had access to privileged communications. But this fact is not in dispute, as the government concedes that, as a result of the search warrant, it may be in possession of privileged documents. As set forth below, the Court presumes this fact when determining the merits of Mr. Diaz's Motion to Dismiss the Indictment.^[2] Accordingly, whether the government has access to privileged documents is not a disputed issue of material fact, and thus no hearing is required for Mr. Diaz to present evidence to prove that fact. For this reason, the Court denies Mr. Diaz's Motion for an Evidentiary Hearing. Further, the Court agrees that Mr. Diaz should provide a log of any errors in the filter team's review, and hereby orders him to do so no later than Monday, February 12, 2024.

II. Dismissal of the Indictment Is Not Warranted Under the Sixth Amendment or the Court's Supervisory Powers.

On the instant motion, Mr. Diaz argues that the government violated his Sixth Amendment Right to counsel by obtaining data from his iCloud account that includes privileged attorney-client communications. Doc. 18 at 7. To remedy this violation or, in the alternative, in the exercise of its supervisory powers, Mr. Diaz contends that the Court should dismiss the indictment herein. Id. at 7-10. The government opposes Mr. Diaz's motion. Doc. 20. As set forth herein, the Court finds that neither the Sixth Amendment nor the Court's supervisory powers warrant dismissal under the circumstances herein.

A. The Sixth Amendment Right to Counsel

“The Sixth Amendment guarantees an accused the right to assistance of counsel for his or her defense.” Reali v. Abbot, 90 Fed.Appx. 319 (10th Cir. 2004) (citing United States v. Morrison, 449 U.S. 361, 364 (1981)). “This right, fundamental to our system of justice is meant to assure fairness in the adversary criminal process.” Morrison, 449 U.S. at 364. “In Weatherford v. Bursey, the Supreme Court recognized that under some circumstances, a defendant's Sixth Amendment rights may be violated by the state's intrusion into the attorney-client relationship.” Shillinger v. Haworth, 70 F.3d 1132, 1138 (10th Cir. 1995) (citing Weatherford, 429 U.S. 545 (1977)).

In Shillinger, the Tenth Circuit determined the relevant standards for establishing a Sixth Amendment violation where the state has become privy to privileged communications.

Specifically, the Tenth Circuit held that where the prosecutor's intrusion into the attorney-client relationship is intentional, such intrusion “constitutes a direct interference with the Sixth Amendment rights of a defendant,” and “absent a countervailing state interest, such an intrusion must constitute a per se violation of the Sixth Amendment.” 70 F.3d at 1142. Thus, the Tenth Circuit adopted the following rule: “when the state becomes privy to confidential communications because of its purposeful intrusion into the attorney-client relationship and lacks a legitimate...