United States v. Gonzalez

578 F.Supp.3d 306

UNITED STATES

v.Armando GONZALEZ

CRIMINAL CASE NO. 3:20-CR-00085 (JCH)

United States District Court, D. Connecticut.

Signed January 4, 2022

Geoffrey M. Stone, U.S. Attorney's Office, Hartford, CT, Leonard C. Boyle, U.S. Attorney's Office, New Haven, CT, for United States.

W. Theodore Koch, III, Koch, Garg & Brown, LLP, Niantic, CT, for Armando Gonzalez.

RULING ON DEFENDANT'S MOTION TO SUPPRESS WIRETAP

Janet C. Hall, United States District Judge

I. INTRODUCTION

In this multi-defendant criminal case, defendant Armando Gonzalez has moved to suppress "all conversations, text messages, and communications of any kind intercepted from [a] telephone number" known as "Target Telephone One." See Mot. to Suppress Wiretap at 1 (Doc. No. 144); Mem. in Supp. of Mot. to Suppress Wiretap ("Def.’s Mem.") (Doc. No. 147). His Motion puts before this court questions of law related to the application of the suppression requirement to text messages, a technology that simply did not exist when either the governing statute was passed by Congress or the principal Supreme Court case on the issue was decided.

The Government has opposed Gonzalez's Motion. See Gov't’s Mem. in Opp'n to Def.’s Mot. [to] Suppress ("Gov't’s Opp'n") (Doc. No. 156). The court has also held a telephonic conference and a lengthy evidentiary hearing on this matter, in addition to directing the parties to file supplemental Memoranda on discrete factual disputes and legal issues related to Gonzalez's Motion. For the reasons discussed below, the Motion to Suppress is denied.

II. PROCEDURAL AND ALLEGED FACTUAL HISTORY

On June 3, 2020, a grand jury returned a seven-count Indictment charging ten individuals with crimes related to fentanyl distribution. See Indictment (Doc. No. 35). Gonzalez was charged in Count One and Count Four of the Indictment. In Count One, he was charged with conspiracy to distribute, and to possess with intent to distribute, fentanyl; and in Count Four with possession with intent to distribute 40 grams or more of fentanyl. Id. at 1-2, 4. Gonzalez was arraigned on June 24, 2020, on these charges and pleaded not guilty. See Minute Entry (Doc. No. 57).

According to the Government, the investigation targeting Gonzalez grew out of an investigation of one of his co-defendants in this case. See Oct. 20, 2021 Hearing ("Hearing").¹ That co-defendant is alleged to have been located in Mexico, and to have employed several individuals in Connecticut and its surrounding areas who worked on his behalf to distribute narcotics, specifically fentanyl and heroine. Id. After tracing the distribution network for these "kilogram quantities" of narcotics, the Government's investigation eventually led to Gonzalez. Id. According to the Government, Gonzalez worked closely with another co-defendant in this case, David Cintron, to distribute those drugs in Connecticut.

On November 14, 2019, the Government – relying on an Affidavit from DEA Task Force Officer (TFO) Jeffrey Poulin – applied for authorization to intercept electronic communications from Target Telephone One. See Gov't’s Hearing Ex. 1.² Judge Chatigny signed the Order that same day, and on December 12, 2019, he signed an expanded Order authorizing the interception of wire communications as well. Id.; Gov't’s Hearing Ex. 4. The original Order authorized the Government, subject to certain restrictions, to intercept communications from Target Telephone One, and listed seven individual "interceptees" who the Government believed used the phone to further their illicit activities. Gov't’s Hearing Ex. 1. This included Gonzalez, as well as Cintron and "others yet unknown, or not yet fully identified." Id. By the time Judge Chatigny signed the Order renewing the wiretap on January 13, 2020, the list of interceptees related to Target Telephone One had expanded to thirteen and, in addition to Gonzalez and Cintron, included Felix Cancel and Gonzalez's girlfriend, Coraima Salgado. Gov't’s Hearing Ex. 7. The wiretap was renewed one last time on February 12, 2020, by Judge Shea, and Gonzalez was soon after arrested on April 28, 2020. See Gov't’s Hearing Ex. 10; Minute Entry (Doc. No. 8).

On August 4, 2021, Gonzalez filed the instant Motion. In it, he argues that the communications intercepted from Target Telephone One – along with "all evidence developed as a result of th[at] wiretap"³ – should be suppressed because the Government failed to minimize "voluminous calls and texts that were personal and private in nature, and that bore no relation to the [G]overnment's goal of investigating narcotics distribution." Mot. to Suppress Wiretap at 1. After the Government filed its Opposition and Gonzalez filed his Reply, the court held a telephonic status conference to determine whether it would be necessary to hold a factual hearing on the Motion. See Gov't’s Opp'n; Reply to Gov't’s Mem. in Opp'n to Def.’s Mot. to Suppress ("Def.’s Reply") (Doc. No. 163).

During that conference, the court determined that a factual hearing was necessary. See Minute Entry (Doc. No. 164). In advance of the hearing, it also ordered Gonzalez to submit a list identifying the specific communications he contends should have been minimized. Id. He did so, meticulously reviewing all 2,599 pages of line sheets labeled "pertinent" for Target Telephone One and providing the court with two lengthy charts detailing each individual communication he was challenging and the reasons each one should have been minimized. See Def.’s Identification of Improperly Minimized Communications – Part I ("Part I – Challenged Communications") (Def.’s Hearing Ex. 31) (Doc. No. 188); Def.’s Identification of Improperly Minimized Communications – Part II ("Part II – Challenged Communications") (Def.’s Hearing Ex. 32) (Doc. No. 189); Def.’s Hearing Ex. 30 ("Line Sheets") (Doc. No. 229) (all 2,599 pages of transcribed communications intercepted from Target Telephone One by the Government).⁴ Of an estimated 2,372 total communications intercepted by the Government and marked as pertinent, Gonzalez challenges approximately 1,806, or 76%, of them. See Part II – Challenged Communications at 2. He initially divided these communications into two broad categories. First were the ones he claims were "personal and/or business related." Id. These total approximately 1,306 communications, or 55% of all the pertinent communications intercepted by the Government. See generally Part I – Challenged Communications at 1 (identifying each of the "personal and/or business related calls or texts which were not properly minimized"). The second category includes "calls or texts the nature of which could not be discerned from the line sheets" – in other words, the approximately 500 communications, or 21% of all the pertinent communications, that show up on the line sheets as "gibberish."⁵ See Part II – Challenged Communications at 2; Hearing (describing certain communications challenged by Gonzalez as showing up on the line sheets as "electronic gibberish").

At the hearing, the Government called TFO Poulin, who organized his testimony around a set of Government exhibits. See October 20, 2021 Hearing Ex. and Witness List (Doc. No. 192). In particular, TFO Poulin used a PowerPoint presentation to methodically move through each stage of the investigation and provide the Government's explanation for intercepting the challenged communications. See PowerPoint Presentation, Gov't’s Hearing Ex. 14.⁶ According to TFO Poulin and the Government's Supplemental Response filed after the hearing, the challenged communications from Target Telephone One that the Government determined were pertinent fall into eighteen categories, almost all of which were relevant to the investigation. See Gov't’s Supp. Resp. Regarding the Def.’s Mot. to Suppress at 1-2, 7 ("Gov't’s Supp. Resp.") (Doc. No. 208). These include:

A) Pen data from telephone calls included on the line sheets for calls that were not actually intercepted

B) Communications between Gonzalez and other persons listed as violators or interceptees in the court Orders

C) Communications with known associates with whom Gonzalez discusses his illicit activities

D) Communications with unidentified associates where he discusses information relevant to the investigation

E) Communications with telephone service providers or other conversations about his telephone use

F) Communications related to Gonzalez's travel through Uber or Lyft

G) Calls less than two minutes in duration

H) Communications – primarily text messages – that are a part of a series of communications and were needed to decipher the entire conversation

I) Communications related to narcotics activities or stash locations

J) Communications related to firearms

K) Communications about motor vehicle transactions & Gonzalez's business

L) Communications about financial activities

M) Communications about Gonzalez's location and that of his associates

N) Communications regarding other criminal activity

O) Communications with Felix Cancel

P) Communications where investigators could not determine that they were not relevant

Q) Communications during the early stages of the wiretap R) MMS messages that were effectively minimized

Gov't’s Supp. Resp. at 2-8.

Following the hearing, the court also ordered both parties to file supplemental Memoranda on the minimization requirement as it specifically relates to text messages. See Minute Entry (Doc. No. 193). It also ordered Gonzalez to inform the court if, after having been informed at the hearing of the Government's reasons for intercepting some of the challenged communications, he would be dropping his challenge to any of the 1,806 he had identified in his Motion. Id. Gonzalez declined to do so, thus maintaining his Motion to Suppress as it relates to each of the communications he originally challenged.

III. THE MINIMIZATION REQUIREMENT

Although Gonzalez challenges a significant number of intercepted calls, the majority of the communications he contends were not properly minimized are text and...