United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON, District Judge.
This case involves charges of extortion, money laundering and conspiracy to distribute marijuana against defendants John McHugh ("McHugh") and Thomas Kuhn ("Kuhn"). Pending before the Court is defendants' motion to suppress tape recordings of McHugh's conversations with a government cooperator.
On July 13, 2012, McHugh was arrested pursuant to an indictment that charged conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and conspiracy to launder and conceal proceeds of marijuana trafficking in violation of 18 U.S.C. § 1956. On October 10, 2013, McHugh was charged in a superseding indictment, which added as Count Three a charge of conspiracy to collect debt by extortionate means in violation of 18 U.S.C. § 894(a). That charge also names co-defendant Kuhn.
Defendants' motion arises from testimony and recordings made by an individual, now a government cooperator ("CO"), who was the alleged target of the extortion conspiracy under Count Three. From 2007 to 2009, CO purchased 30 to 60 pounds of marijuana from McHugh every two weeks. In January, 2010, McHugh agreed to fund CO's indoor marijuana-growing operation in Maine. In return, CO would produce marijuana for McHugh. McHugh allegedly invested over $200, 000 in that operation but CO only produced a total of about 20 pounds of marijuana over an 18-month period. During that time, CO continually explained to McHugh the anticipated difficulties of the operation and suggested ways to revive it.
By the early fall of 2011, McHugh began to demand reimbursement of his investment and made increasingly serious threats against CO. CO alleges that McHugh visited his residence in Maine, physically assaulted him and threatened to kill him and his family. CO also alleges that, several weeks later, McHugh visited the marijuana operation, choked CO and threatened to stab his eye with a pen.
After that visit, CO began to fear for his life and decided to preserve evidence of McHugh's behavior. Between the fall of 2011 and January, 2012, CO surreptitiously recorded two phone conversations with McHugh and preserved various text messages exchanged with him. During the first phone conversation, McHugh explicitly threatened to kill CO and his family.
CO also recorded his final meeting with McHugh at Boston's Faneuil Hall in January, 2012. During that meeting, McHugh threatened CO, demanding reimbursement, and punched CO in the face. McHugh told CO that the debt had been transferred to co-defendant Kuhn, who was also present at the meeting. Together, McHugh and Kuhn discussed their future efforts to collect the reimbursement from CO.
In July, 2012, McHugh was arrested on the initial indictment. In August, 2012, law enforcement agents interviewed CO pursuant to a proffer letter. During that interview, CO provided his recording device and the agents downloaded all of its audio files. The government has indicated that it will introduce as evidence recordings of the two phone calls and the Faneuil Hall meeting. The government has not charged CO with any criminal acts.
In April, 2014, McHugh, joined by Kuhn, moved to suppress the use of CO's recordings pursuant to the Fourth Amendment to the Constitution and 18 U.S.C. §§ 2510 et seq., the Wiretap Statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"). Defendants argue that CO recorded his conversations with McHugh and Kuhn for unlawful purposes and that the recordings are therefore inadmissible at trial. The alleged unlawful purposes include memorializing the terms of their criminal agreement, forcing McHugh to fulfill his end of the bargain and forcing McHugh to assume responsibility for the financial loss of the marijuana-growing operation.
In May, 2014, the government filed an opposition to defendants' motion to suppress, arguing that CO's primary purpose for the recording was to protect himself by memorializing evidence of McHugh's violent threats.
For the reasons that follow, this Court will deny the defendants' motion to suppress recordings.
The issue in this case is whether CO's recordings violate Title III and more particularly whether the recordings are admissible under the one-party consent rule set forth in 18 U.S.C. § 2511(2)(d). Relative to that inquiry, the Court must determine whether CO consented to the recordings and if so, whether he recorded his conversations for a lawful purpose. If ...