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United States v. Marte

United States District Court, D. Massachusetts

September 24, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
[1] ALBERTO MARTE, Defendant. UNITED STATES OF AMERICA, Plaintiff,
v.
[8] JUAN PEREZ, Defendant.

          MEMORANDUM AND ORDER REGARDING DEFENDANTS' RENEWED MOTION FOR DISCOVERY (DKT. NO. 521)

          KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE

         I. Introduction

         This matter is before the court after an evidentiary hearing on Defendant Alberto Marte's and Defendant Juan Perez's (collectively "Defendants") renewed motion for discovery of information regarding a possible joint investigation between the United States Drug Enforcement Administration ("DEA") and law enforcement authorities in the Dominican Republic. After hearing the testimony of DEA Special Agent ("SA") John Barron and considering the parties' arguments, the Defendants' renewed motion is DENIED for the reasons that follow.

         II. Procedural and Factual Background

         A. Pre-Evidentiary Hearing

         Defendant Alberto Marte is charged in a second superseding indictment with one count of conspiring to distribute heroin and to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846, two counts of aiding and abetting distribution of heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, four counts of distribution of heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841, one count of conspiring to distribute fentanyl and to possess fentanyl with intent to distribute, in violation of 21 U.S.C. § 846, and one count of possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924 (Dkt. No. 300). The same indictment charges Defendant Juan Perez with one count of conspiring to distribute heroin and to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846 (id.). See United States v. Marte, No. 16-cr-30044-MGM, 2018 WL 988062, at *1 (D. Mass. Feb. 20, 2018), adhered to on reconsideration, No. 16-cr-30044-MGM, 2018 WL 1174202 (D. Mass. Mar. 6, 2018). The charges were based on Defendants' alleged participation in a "large-scale narcotics trafficking organization" that was operating in Springfield, Massachusetts. Id.

         Defendants moved to compel the government to produce information regarding a wiretap authorized by a judge in the Dominican Republic ("Dominican wiretap") that intercepted two of Defendant Marte's conversations with the target of a Dominican investigation on the ground that it was a joint investigation between the DEA and law enforcement authorities in the Dominican Republic (Dkt. No. 342 at 5). See Marte, 2018 WL 988062, at *2-4. The DEA mentioned Marte's intercepted conversations in its initial application to the Massachusetts District Court under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510-2520, for authorization to intercept the Springfield organization's wire and electronic communications ("Massachusetts wiretap"). See Id. at *3.

         In order to rule on Defendants' motion to compel, the court needed additional factual information to determine whether or not the DEA and Dominican officials were engaged in a joint investigation when Defendant Marte's communications were intercepted by Dominican authorities pursuant to a Dominican judge's order(s). See Id. at *4 (citing United States v. Valdivia, 680 F.3d 33, 52 (1st Cir. 2012)). Consequently, on January 23, 2018, the undersigned directed the government to provide responses to the following inquiries "in the form of an affidavit from a representative of the DEA with personal knowledge:"

1. Did the DEA initiate the investigation in the Dominican Republic that led to the interception of Defendant Marte's communications with a target of the Dominican wiretap?
2. Did the DEA request that Dominican officials apply for the court order authorizing the Dominican wiretap that intercepted Defendant Marte's communications?
3. Did DEA agents supervise, direct, or control the Dominican wiretap that intercepted Defendant Marte's communications with a target of the Dominican wiretap?
4. Did DEA agents personally participate in intercepting and recording Defendant Marte's communications with a target of the Dominican wiretap?

(Dkt. No. 394).

         On February 14, 2018, the government responded to the court's inquiries by submitting the affidavit of SA Barron who participated in the Massachusetts investigation into Defendants' activities (Dkt. Nos. 414, 414-1). SA Barron's attestations were based on his personal knowledge of the investigation and information he obtained from other DEA personnel (Dkt. No. 414-1 at ¶ 3). SA Barron stated that he was "confident that [he had] communicated with all those persons within the DEA having the most relevant information" concerning the court's order (id.). SA Barron answered the court's four queries in the negative (id. at ¶¶ 4-7).

         After considering Defendants' motion, the government's opposition, and SA Barron's affidavit, the undersigned denied Defendants' motion to compel (Dkt. No. 424). See Marte, 2018 WL 988062, at *4-5.

         Defendants appealed this court's ruling to the presiding District Court judge (Dkt. No. 445). Defendants argued, in part, that SA Barron had failed to adhere to the court's directive to answer the four questions based on his "personal knowledge" (Dkt. No. 446 at 16). Defendants requested an evidentiary hearing in order to test the reliability of the hearsay upon which SA Barron relied (id. at 17). The presiding judge set aside this court's order denying Defendants' motion to compel discovery regarding a joint investigation, and remanded the matter for the undersigned to consider whether to hold an evidentiary hearing (Dkt. Nos. 494). After granting Defendant Marte's motion to join Defendant Perez's renewed motion for discovery and considering the parties' submissions and oral arguments, the court allowed Defendants' request for an evidentiary hearing to determine whether Defendants were entitled to discovery concerning the Dominican wiretap that intercepted Defendant Marte's conversations (Dkt. Nos. 521, 539, 549, 560).

         B. Evidentiary Hearing

         The court held an evidentiary hearing on August 21, 2018 (Dkt. No. 562 at 1).[1]Defendants called SA Barron to testify regarding the information he provided in the affidavit submitted in response to the undersigned's questions aimed at determining whether or not the United States and the Dominican Republic engaged in a joint investigation (id. at 7, 8, 9).

         Defendants' case in Massachusetts followed investigations that were conducted, first, in the Dominican Republic and, then, in New York (id. at 10, 33, 35-36, 50). Sergio Gomez Diaz, a Dominican national, was the focus of the investigation in the Dominican Republic (id. at 31-32, 50). Gomez Diaz brokered sales of cocaine and heroin that came from Venezuela into the Dominican Republic and, from there, were transferred to participants in a narcotics operation in the United States, including a member of Gomez Diaz's family in New York (id. at 14-15, 33-34, 46).

         Because Defendants asked the court to order the government to disclose the "nature of the assistance" the DEA's Special Operations Division ("DEA SOD") provided to the alleged joint investigation conducted by the Dominican authorities and the DEA (Dkt. No. 342 at 5), SA Barron sought the assistance of Cara Krysil, the DEA Division Council in Boston (Dkt. No. 562 at 12-13, 36).[2] At SA Barron's request, Attorney Krysil contacted Attorney Robert McGovern, the Division Counsel of the DEA SOD, who spoke to "several people" involved in the investigation (id. at 29). According to the information that Attorney McGovern provided to Attorney Krysil, the DEA SOD did not convey any leads or information about the Dominican case to the Dominican authorities, played no role in initiating the investigation in conjunction with the Dominican authorities, and did not participate in a joint investigation (id. at 29, 37). SA Barron ...


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