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United States v. Rodriguez

United States District Court, D. Massachusetts

February 20, 2018

UNITED STATES OF AMERICA
v.
FERNANDO RIVERA RODRIGUEZ, YEURYS TEJEDA, JOSE NEGRON, and ISIS Y LUGO-GUERRERO, Defendants.

          MEMORANDUM & ORDER

          Indira Talwani, United States District Judge

         This case involves a prosecution based largely on evidence derived from government interception of wire and electronic communications. Presently before the court is the Motion to Suppress Evidence Derived from Electronic Surveillance Where Wiretap Order was Insufficient on its Face [#253] filed by Defendant Fernando Rivera Rodriguez, [1] and joined by Defendants Isis Lugo-Guerrero and Jose Negron, [2] and Defendant Yeurys Tejeda's Motion to Suppress Evidence Derived from Wiretap Orders [#282], which incorporates the legal arguments made in Rivera Rodriguez's motion. For the reasons that follow, the suppression motions are DENIED.

         I. Title III's Landscape

         Defendants bring their suppression motions pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, see 18 U.S.C. §§ 2510-2522. This statute “authorized wiretapping as needed to allow effective investigation of criminal activities while at the same time ensuring meaningful judicial supervision and requiring specific procedures to safeguard privacy rights.” United States v. Gordon, 871 F.3d 35, 43 (1st Cir. 2017).

         Law enforcement officers seeking authorization to intercept communications must apply to a “judge of competent jurisdiction.” 18 U.S.C. § 2518(1). Each application must contain certain information, including “the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application.” Id. § 2518(1)(a). Another section of the statute governing the authorization process provides that only certain officials in the Department of Justice may authorize federal wiretap applications. See id. § 2516(1).

         Upon reviewing such an application, “the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications, ” so long as the judge is satisfied that the applicant has met the application requirements. Id. § 2518(3). Each order authorizing or approving interception must contain certain information. Id. § 2518(4). Relevant here, it must specify “the identity of the agency authorized to intercept the communications, and of the person authorizing the application.” Id. § 2518(4)(d). Section 2518(4) provides further that an authorization order “shall, upon request of the applicant, direct that a provider of wire or electronic communication service . . . shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference.” “Applications made and orders granted under . . . [Title III] shall be sealed by the judge, ” and “shall be disclosed only upon a showing of good cause.” Id. § 2518(8)(b).

         An “aggrieved person in any trial, hearing, or proceeding in or before any court . . . may move to suppress the contents of any wire or oral communication intercepted pursuant to . . . [Title III], or evidence derived therefrom, ” id. § 2518(10)(a), if, as relevant here, “the order of authorization or approval under which [the communication] was intercepted is insufficient on its face.” Id. § 2518(10)(a)(ii).[3] An “aggrieved person” is a “person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” Id. § 2510(11).

         II. Factual Background

         A federal district judge in the District of Massachusetts issued on June 22, 2016, a sealed order authorizing the Drug Enforcement Administration (“DEA”) to intercept communications made from two target telephone numbers. Along with providing other information required by Title III, the order named an Acting Deputy Assistant Attorney General in the Department of Justice who was a duly designated official of the Criminal Division for authorizing wiretap applications as the official who authorized the application. It also provided that, “based upon the request of the Applicant, ” a service provider was to “furnish and continue to furnish the Applicant and DEA with all information, facilities, and technical assistance necessary to accomplish the interceptions unobtrusively and with a minimum of interference.” Further, the authorization order stated, “this Order, any resulting Orders, and all interim reports filed with the Court with regard to this matter shall be SEALED until further order of the Court, except that copies of the Order, in full or redacted form, may be provided to the Applicant and may be served on the communication service provider as necessary to effectuate the Court's Orders.”[4]

         On the same day that it issued the above authorization order, the court issued what it labeled a “Service Provider Order.” See Sealed Docket Entry [#277-1] (“June 22 service provider order”). This June 22 service provider order stated that the government had applied for an order authorizing the interception of wire communications, and that “[t]he Court, having previously reviewed the Application and found that it conforms in all respects to the requirements of [Title III], has this day signed an Order conforming to the provisions of [Title III], authorizing the Drug Enforcement Administration (DEA) to conduct the aforesaid interceptions.” Id. The June 22 service provider order ordered, inter alia, that: (1) the service provider would furnish the DEA with information, facilities, and technical assistance to accomplish the interceptions; (2) the DEA would compensate the service provider; (3) the service provider's assistance would terminate in thirty days; and (4) the DEA could use specified practices to intercept the communications. Id. Finally, the June 22 service provider order stated “this Order is SEALED.” Id. The district judge signed and dated the service provider order. Id.

         The government subsequently sought authorization to intercept additional wire communications. An authorization order and a separate service provider order were issued on July 29. Again, the authorization order named a Deputy Assistant Attorney General in the Department of Justice who was a duly designated official of the Criminal Division for authorizing wiretap applications as the official who authorized the application for interception of communications, and again the authorization order provided that, based upon the “request of the Applicant, ” a service provider was to “furnish and continue to furnish the Applicant and DEA with all information, facilities, and technical assistance necessary to accomplish the interceptions unobtrusively and with a minimum of interference.” Sealed Docket Entry [#277-2] (“July 29 service provider order”). Although similar to the June 22 service provider order, the July 29 service provider order did not refer to a separate order approved by the court and concluded by stating “this Order, any resulting Orders, and all interim reports filed with the Court with regard to this matter shall be SEALED until further order of the Court, except that copies of the Order, in full or redacted form, may be provided to the Applicant and may be served on the communication service provider as necessary to effectuate the Court's Orders.” Id.

         The court continued to follow this process of issuing separate authorization and service provider orders as the investigation progressed. Authorization orders were issued on October 18, 2016, December 9, 2016, and January 26, 2017. Each authorization order named either a Deputy Assistant Attorney General or Acting Assistant Attorney General in the Department of Justice who was a duly designated official of the Criminal Division for authorizing wiretap applications as the official who authorized the application for interception of communications, and provided that a service provider was to “furnish and continue to furnish the Applicant and DEA with all information, facilities, and technical assistance necessary to accomplish the interceptions unobtrusively and with a minimum of interference.” Each concluded by stating “that copies of the Order, in full or redacted form, may be provided to the Applicant and may be served on the communication service provider as necessary to effectuate the Court's Orders.” Service provider orders were issued on the same dates as the authorization orders. These three service provider orders were similar to the July 29 service provider order, although they did not contain the provision stating that the orders would be sealed until further court order and that copies of the orders could be provided to the applicant and served on the service provider as necessary.

         III. Discussion

         At issue is whether the orders that went to the service providers were facially insufficient orders authorizing interception of their communications and, if so, whether this insufficiency warrants suppression. Defendants do not dispute that a qualified official in the Department of Justice authorized the wiretap applications, that the wiretap applications complied with Title III, or that the authorization orders approving the wiretap applications and providing that a service provider was to furnish and continue to furnish the Applicant and DEA with all information, facilities, and technical assistance necessary to accomplish the interceptions complied with Title III. Their sole argument is that the derivative service provider orders did not provide the “identity of . . . ...


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