United States v. Tam

1

UNITED STATES OF AMERICA, v. HARRY TAM, Defendant.

CRIMINAL No. 21-10350-LTS

United States District Court, D. Massachusetts

June 30, 2023

ORDER ON MOTIONS TO SUPPRESS (DOC. NOS. 284, 288 290, 385)

Leo T Sorokin, United States District Judge

Harry Tam has filed three motions to suppress evidence he anticipates the government might adduce at trial. One challenges statements Tam made during an interaction with Task Force Officers (“TFOs”) of the U.S. Drug Enforcement Agency on May 3, 2021. Doc. No 284.^[1]Another challenges the wiretap authorized by Judge Stearns. Doc. No. 290. The third concerns the evidence seized at Tam's home when a search warrant for that location was executed by law enforcement in May 2021. Doc. No. 288. The government has responded to each motion. Doc. Nos. 305, 326.^[2] After a non-evidentiary hearing on the Motions to Suppress, Tam filed a supplemental memo, Doc. No. 382, and later a Motion for an Evidentiary Hearing and for Leave to File Reply. Doc. No. 385. For the reasons explained below, the Court finds no evidentiary hearing is warranted, and Tam's motions are DENIED.

I. PROCEDURAL BACKGROUND

A grand jury returned an eleven-count indictment against ten defendants. Doc. No. 1. The Indictment charges Tam with Count One: Conspiracy to Distribute and to Possess with Intent to Distribute 50 Grams or More of Methamphetamine, Count Six: Distribution of and Possession with Intent to Distribute 50 Grams or More of Methamphetamine, Count Ten: Felon in Possession of a Firearm and Ammunition, and Count Eleven: Possession of a Firearm with an Obliterated Serial Number. Id. On December 16, 2021, Attorney Christopher Malcolm appeared as retained counsel on behalf of Tam at the arraignment. Doc. No. 26. Malcolm continued to represent Tam thereafter. Ultimately, Malcolm filed a motion to suppress on behalf of Tam, Doc. No. 246, and the government filed a motion to disqualify Malcolm due to a conflict of interest. Doc. No. 231. After briefing and a hearing, the Court disqualified Malcolm. Doc. No. 253. Tam requested the appointment of new counsel. Doc. No. 257. The Court allowed that request and appointed Attorney Barron from the CJA panel. Id. After due consideration, Barron withdrew the motion to suppress filed by Malcolm in favor of filing three new motions to suppress. Doc. Nos. 263, 284, 288, 290. The Court terminated the motion filed by Malcolm. Doc. No. 264. The motions filed by Attorney Barron are now ripe. Tam's trial along with one of the two remaining co-defendants is scheduled for July 17, 2023. Doc. Nos. 297, 361.

II. DISCUSSION

A. Statements

In the first motion, Tam asks the Court to suppress the statements he made to law enforcement after what he calls an “extensive interrogation.” Doc. No. 824 at 2. The Court need not linger over Tam's challenge, as the government has represented that it “has no intention of using the Defendant's statements made on May 3, 2021, at trial or for any other purpose during the pendency of this case.” Doc. No. 305. Given the government's position, Tam's Motion to Suppress Statements, Doc. No. 284, is DENIED AS MOOT. This ruling is without prejudice to Tam reviving his challenge in the event the government seeks to use any of the challenged statements.

B. Wiretap

Next, Tam moves to suppress evidence acquired from phone calls intercepted pursuant to an initial order later renewed: the initial March 3, 2021 order authorized interception of wire and electronic communications over target telephones 1 and 2 (“TT-1” and “TT-2”) for thirty days, and the renewal issued on April 2, 2021 authorized another thirty days of interception of TT-1. Doc. Nos. 327-1, 327-2. The orders are properly subject to this Court's review on a motion to suppress. See United States v. Santana-Dones, 920 F.3d 70, 75 (1st Cir. 2019). In evaluating the Motion, the Court must determine if the “facts set forth in the application were minimally adequate to support the determination that was made.” Id.; see also United States v. Nelson-Rodriguez, 319 F.3d 12, 32 (1st Cir. 2003). Tam makes two arguments for suppression: staleness and minimization. The Court addresses each in turn.

1. Staleness

Tam first argues that the information contained in the wiretap affidavit was stale and should be suppressed. In evaluating staleness, the Court “must assess the nature of the information, the nature and characteristics of the suspected criminal activity, and the likely endurance of the information.” United States v. Encarnacion, 26 F.4th 490, 497-98 (1st Cir. 2022).

Fact specific context and evidence here matters. The affidavit establishes ample probable cause to believe Tam was participating in a nationwide drug distribution conspiracy in 2020. The affidavit plainly shows multiple packages sent from California to Tam or his co-conspirators in Massachusetts. Doc. No. 327-2 at 19-27. Most of the packages went to Midas Auto Body Shop (“Midas”) in Brookline where Tam worked as the manager. Id. at 23-27. Agents intercepted one package, determined it contained methamphetamine, and communicated with Tam (the identified recipient), who had the tracking number for the package. Id. at 19-22. The affidavit also set forth other evidence of the source of the methamphetamine, co-conspirators working with Tam in the receipt of the methamphetamine from California, and the distribution of it in Massachusetts. Id. at 50-62. Finally, the affidavit established probable cause that Tam used TT-1 to conduct these activities. Id. at 20-51. Unsurprisingly, Tam does not contest that the affidavit established probable cause that he used TT-1 to further his participation in a drug distribution conspiracy in violation of federal law.

Rather, Tam contends that the probable cause evidence arose from activities between January and November 2020, and that this evidence was stale at the time of the interception order on March 3, 2021. Tam's contention misses the mark for several reasons.

First, Tam argues that the absence of evidence of other drug shipments after November 2020 renders the application stale. Not so, in this particular case. As the First Circuit recently explained, large scale drug conspiracies “normally will have a longer shelf life” than other criminal activity. Encarnacion, 26 F.4th at 497 (citing United States v. Schaefer, 87 F.3d 562, 568 (1st Cir. 1996) (observing that longer-running nature of drug-trafficking conspiracies makes it more likely that “a datum from the seemingly distant past will be relevant to a current investigation”)); see also United States v. Nocella, 849 F.2d 33, 40 (1st Cir. 1988) (noting that “drug trafficking, if unchecked, is apt to persist over relatively long periods of time” so that the shelf life of facts supporting probable cause may be longer). This is exactly what the affidavit describes-a multi-month conspiracy involving large quantities of drugs and involving many people in Massachusetts, not to mention distributors in California and payments to Mexican cartels. The evidence presented was more than “minimally adequate,” not only to establish probable cause in November, but also three to four months later on March 2nd, given the duration, nature, and scope of the conspiracy.

Second, Tam attempts to bolster the foregoing staleness argument by pointing out Midas fired him in November. He also notes that despite ample opportunity to observe Tam's home in the months after his termination, including with a pole camera installed by law enforcement, the affidavit presented no evidence of shipments there. But the evidence also supports a different reasonable inference: Tam with others searched for or located another location to receive the packages or otherwise continue to distribute drugs obtained in other ways. After agents seized a package sent via the United States Postal Service on July 29, 2020, evidence in the affidavit shows the targets recast their operations to send packages via FedEx. Doc. No. 327-2 at 20. This change evinces a shift in conspiracy tactics in response to actions beyond their control (the seizure). The inference that the same occurred after Tam's termination is reasonable. Nothing in the affidavit suggests the Midas location was an indispensable piece of the conspiracy. That no packages appeared at Tam's home is unsurprising: nothing suggests they ever appeared there by any sort of mail service. Indeed, the difficulty in identifying how the conspiracy evolved supported the necessity determination rather than undermining the probable cause finding.

Third, the affidavit provides evidence establishing probable cause of other ongoing criminal activity, including the possession of firearms and distribution of firearms or “ghost guns.” Doc. No. 327-2 at 30. The affidavit also supplies evidence of a substantial criminal conspiracy. Id. at 30 (describing identified witness reporting Tam sold “ghost guns” made by a friend, as well as methamphetamine and false identification cards and licenses); Id. at 33 (describing ammunition, “ghost gun,” and controlled substances in possession of alleged coconspirator Vuong upon his arrest); id. at 39 (noting alleged co-conspirator Leyden in possession of a “ghost gun” as well as various controlled substances upon his arrest); Id. at 40 (describing seizure of computers, external drives, and laminating machine). The scope and range of these various ongoing, jointly undertaken criminal activities supports and establishes the probable cause finding as of March 3, 2021, even though these reported events occurred in 2020.

Fourth, Tam points to his statement that he “retired.” Tam told Voung that he (Tam) was “retired” on October 4, 2020, in a jailhouse recorded call while Vuong was in jail. Doc. No. 290 at 5.^[3] Yet, just days...