United States v. Roybal

46 F.Supp.3d 1127

UNITED STATES of America, Plaintiff

v.Christopher ROYBAL, Defendant.

No. CR 12–3182 JB.

United States District Court, D. New Mexico.

Filed Sept. 4, 2014.

Damon P. Martinez, United States Attorney, Cynthia L. Weisman, Joel R. Meyers, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, NM, for the Plaintiff.

Jacquelyn Robins, Albuquerque, NM, for Defendant Christopher Roybal.

Samuel L. Winder, Walz & Associates, Albuquerque, NM, for Defendant George Roybal.

Jason Bowles, Bowles Law Firm, Albuquerque, NM, for Defendant Jerome Eckstein.

B.J. Crow, Crow Law Firm, Roswell, NM, for Defendant Cesar Ramirez.

Summer McKeiver, The Criminal Defense Group, Studio City, CA, for Defendant Manuel Valencia.

Edward Chavez, Jr., Edward Chavez, Jr., Attorney at Law, Albuquerque, NM, for Defendant Anthony Padilla.

Phillip G. Sapien, Sapien Law, LLC, Albuquerque, NM, for Defendant Jarius Granados.

Edward O. Bustamante, Albuquerque, NM, for Defendant Kurt Gagarin.

Cliff Mark McIntyre, Albuquerque, NM, for Defendant Troy Crawford.

Angela Arellanes, Albuquerque, NM, for Defendant Chase Cameron.

Michael V. Davis, Michael V. Davis, Attorney & Counselor at Law, P.C., Corrales, NM, for Defendant Michelle Johnson.

Mark A. Earnest, The Hastings Law Firm, Albuquerque, NM, for Defendant Kristen Lucero.

Molly E. Schmidt–Nowara, Albuquerque, NM, for Defendant Brandy Lucero.

Gregory M. Acton, Albuquerque, NM, for Defendant Erick Vigil.

Monnica Lynn Garcia, Law Office of Monnica L. Garcia, LLC, Albuquerque, NM, for Defendant Isaac Gonzalez.

Erlinda O. Johnson, Law Office of Erlinda Ocampo Johnson, LLC, Albuquerque, NM, for Defendant Richard Sanchez.

D. Penni Adrian, Adrian & Associates PC, Los Lunas, NM, for Defendant Paul Ulibarri.

Christopher P. Lucero, Leon F. Howard, III, The Law Office of Lucero & Howard, LLC, Albuquerque, NM, for Defendant Tianna Candelaria.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants' Joint Motion to Compel Specific Discovery, filed August 30, 2013 (Doc. 334) (“Motion”). The Court held a hearing on April 17, 2014. The primary issue is whether the Court should compel Plaintiff United States of America to disclose documents and materials that the Defendants argue are necessary to determine whether the United States has complied with the necessity, minimization, and other requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510 –2522 (“Title III”). Specifically, the Court must determine whether Defendants are entitled to seven categories of information: (i) all pen register data¹ that the United States collected in this case; (ii) the Title III progress reports from this case and 10 MR 149 MCA; (iii) an audio recording of the September 12, 2011, telephone call between confidential human source–1 and Defendant Christopher Roybal; (iv) financial documents and three ledgers/day planners that the United States seized from Defendant Cesar Ramirez' house; (v) laboratory reports cited in the United States Notice of Intention to Offer Expert Testimony, filed October 1, 2013 (Doc. 357) (“Notice of Expert Testimony”); (vi) an index or table of contents for the audio recordings of the intercepted calls; and (vii) fourteen specific surveillance logs and reports that the Defendants requested at the April 14, 2014, hearing. The Court will grant the Motion in part and deny it in part. The Court will deny the Motion as to the pen register data that the United States collected in this case. The data is not discoverable under rule 16 of the Federal Rules of Criminal Procedure, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (“Franks ”), or under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ( “Brady ”). The Court similarly denies the Defendants' request that it issue a rule 17(c) subpoena for this information as the Defendants have failed to establish that the information sought is relevant, admissible, and specific. The Court will deny the Motion as to the Title III progress reports from 10 MR 149 MCA, because they are not discoverable under rule 16 or Brady. Because the Court has found that Title III reports are not applications and it is irrelevant whether the United States disclosed that it had intercepted Roybal on the progress reports from 10 MR 149 MCA, the Court similarly denies the Defendants' request for an in camera inspection of the reports. The Court will also deny the Motion as to the Title III progress reports from this case, because the reports are not discoverable under rule 16, Franks, or Brady. The Court similarly denies the Defendants' request for an in camera review of the reports, because the Defendants have failed to establish how any information gleaned from such a review would be relevant to their defense. The Court will deny the Motion as to an index or table of contents for the audio recordings of the intercepted calls, because the Court finds no sound legal basis on which to order its production. Finally, the Court will deny the Motion as to the fourteen specific surveillance logs and reports that that the Defendants requested at the April 17, 2011 hearing, because the United States has represented that it made a good faith search for those items and did not find them. The Court will grant the Motion as to (i) the audio recording of the September 12, 2011, telephone call between confidential human source–1 and Roybal; (ii) the financial documents and three ledgers/day planners seized from Ramirez' house; and (iii) the laboratory reports cited in the United States' Notice of Expert Testimony. The United States has not contested the discoverability of these items and the Court finds that they are discoverable under rule 16.

PROCEDURAL BACKGROUND

The Grand Jury issued an Indictment on December 12, 2012, which charged the Defendants with: (i) conspiracy to distribute 500 grams or more of cocaine, contrary to 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), and in violation of 21 U.S.C. § 846 ; (ii) conspiracy to distribute marijuana, contrary to 21 U.S.C. § 841(a)(1) and 841(b)(1)(D), and in violation of 21 U.S.C. § 846 ; (iii) conspiracy to launder monetary instruments, contrary to 18 U.S.C. § 1956(a)(1)(B)(i) and in violation of 18 U.S.C. § 1956(h) ; and (v) use of a telephone to facilitate a drug trafficking offense, in violation of 21 U.S.C. § 843(b). See Indictment at 1, filed December 12, 2012 (Doc. 2) (“Indictment”). The Indictment does not set forth any overt acts or specific facts.

1. The Defendants' Motion.

The Defendants filed their Motion to compel discovery on August 30, 2013, seeking more than one hundred specific pieces of discovery from the United States. See Motion at 26–49. In response, the United States disclosed the large majority of the items that the Defendants requested—including all wiretap applications filed in this case and their accompanying affidavits; “audio copies of all of the intercepted calls, linesheets of all calls and a filtered list of calls by each individual defendant”; and “numerous reports and confidential source recordings.” United States' Response to Defendants' Joint Motion to Compel Specific Discovery at 2–3, filed September 30, 2013 (Doc. 352) (“Response”). The Court will not recount here the Defendants' arguments regarding the material that the United States has already produced, but will instead focus solely on the Defendants' arguments on the outstanding discovery issues.

The Defendants' Motion requests that the United States disclose all Title III progress reports² from this case. See Motion at 26. The Defendants explain that “the purpose of [Title III progress] reports is to ‘limit[ ] the extent of court authorized intrusions on the privacy of oral communications.’ ” Motion at 37 (alterations in Motion but not source) (citing United States v. Chimera, 201 F.R.D. 72, 76 (W.D.N.Y.2001) (Arcara, J.) (“Chimera ”). In the Defendants' view, “the reasons for disclosing the reports outweigh any conceivable governmental interest in concealing them,” because the Defendants need the Title III progress reports to challenge the wiretap applications under both Title III and the Fourth Amendment. Motion at 37. The Defendants point out that federal district courts have granted similar motions to compel Title III progress reports. See Motion at 37 (citing United States v. Cleveland, No. 96–0207, 1997 WL 2554, at *4 (E.D.La. Jan. 2, 1997) (“Cleveland ”)). The Defendants also cite Chimera, in which the Honorable Richard J. Arcara, United States District Judge for the Western District of New York, stated that “Title III applications and orders, like search warrant applications and warrants, are considered documents material to the defense under Rule 16(a)(1)(C).” Motion at 37 (quoting Chimera, 201 F.R.D. at 76 )) (internal quotation marks omitted).

The Defendants further request the Title III progress reports from a related case, 10 MR 149 MCA. Motion at 29. The Defendants assert, without further explanation, that, “[t]he documents and intercepted calls pertaining to 10 MR 149 MCA are relevant and necessary to the issue of whether the initial Roybal wiretap application [in this case] was tainted by what later turned out to be, by concession of the government, an invalid wiretap.” Motion at 29.

The Defendants next seek the pen register data that the United States collected in this case. Motion at 26. The Defendants argue that this information is “material to determining whether or not the government had a legitimate investigative need for the intrusive step of intercepting a vast number of private telephone conversations.” Motion at 26–27. The Defendants also point out that the “[f]ederal courts have recognized that these reports are discoverable and defendants are entitled to them.” Motion at 38. As an example, the Defendants cite United States v. Feola, 651 F.Supp. 1068 (S.D.N.Y.1987), in which the...