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United States v. McHugh

United States District Court, D. Massachusetts

November 5, 2014

UNITED STATES OF AMERICA,
v.
JOHN H. MCHUGH and THOMAS KUHN, Defendants

Page 96

For John H. McHugh, also known as, Johnny, also known as, Mike, Defendant: Charles P. McGinty, LEAD ATTORNEY, Federal Public Defender Office, Boston, MA.

For Phillip S. Anderson, Defendant: Jack M. Atwood, LEAD ATTORNEY, Jack. M. Atwood, P.C., Plymouth, MA.

For Thomas Kuhn, Defendant: Derege B. Demissie, LEAD ATTORNEY, Demissie & Church, Cambridge, MA.

For USA, Plaintiff: Neil J. Gallagher, Jr., LEAD ATTORNEY, United States Attorney's Office, Boston, MA; James E. Arnold, United States Attorney's Office MA, Boston, MA.

Page 97

MEMORANDUM & ORDER

Nathaniel M. Gorton, United States District Judge.

This case involves charges of conspiracy to distribute marijuana, money laundering and extortion against co-defendants John McHugh (" McHugh" ) and Thomas Kuhn (" Kuhn" ). On July 29, 2014, the Court issued an Order denying defendants' motion to suppress taped recordings of defendants' conversations with a government cooperator (to whom the Court will refer by his initials, " CO" ). The Court's ruling was made on the papers without an evidentiary hearing.

Defendant McHugh subsequently filed a motion to reconsider and moved for an evidentiary hearing.[1] McHugh claims that " the benefit of newly discovered evidence" now shows that the tapes were made in violation of United States v. Vest, 639 F.Supp. 899 (D. Mass. 1986). Vest is the leading case in the First Circuit Court of Appeals for the proposition that an intercepted recording made for an impermissible purpose under 18 U.S.C. § 2511(2) (d) should be suppressed.

The Court scheduled a two-hour evidentiary hearing which was held on October 24, 2014. For the following reasons, defendant McHugh's motion to reconsider will be allowed but upon such reconsideration defendants' motion to suppress will again be denied. The recordings of the conversations between defendants and CO will not be suppressed pursuant to 18 U.S.C. § 2511(2)(d) and are therefore admissible against both McHugh and Kuhn.

I. Background

In July, 2012, McHugh was arrested pursuant to an indictment that charged conspiracy to distribute marijuana and conspiracy to launder and conceal proceeds of marijuana trafficking.

In October, 2013, McHugh was charged in a superseding indictment, which added as Count Three a charge of conspiracy to collect debt by extortionate means. That charge also names co-defendant Kuhn.

Defendants' motion to suppress arises from testimony and recordings made by CO, who was the alleged target of the extortion conspiracy under Count Three. From 2007 to 2009, CO routinely purchased large quantities of marijuana from McHugh. In January, 2010, McHugh agreed to fund CO's indoor marijuana-growing operation in Maine. In return, CO was to produce marijuana for McHugh. McHugh allegedly invested approximately $238,000 in cash in what turned out to be a largely unsuccessful operation that produced a dismal total of just less than 20 pounds of marijuana over more than 18 months. During that time, McHugh expressed frustration with the project and CO frequently tried to explain to him the supposed difficulties of the operation and possible ways to rectify it.

By early fall 2011, McHugh lost patience with the project. He began to demand reimbursement of his investment and made increasingly serious threats against CO. CO alleges that McHugh visited his residence in Maine and threatened to kill him and his family. He testified that it was this encounter with McHugh that made him begin to fear for his life and prompted his decision to buy a recording device and preserve evidence of McHugh's

Page 98

behavior. CO was also apparently aware that McHugh was being investigated by federal authorities at the time he purchased the recording device. In an attempt to shield himself, CO changed the phone number of ...


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