United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANTS'
RENEWED MOTION FOR DISCOVERY (DKT. NO. 521)
KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE
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
Procedural and Factual Background
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,
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.
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
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).
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).
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.
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,
court held an evidentiary hearing on August 21, 2018 (Dkt.
No. 562 at 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).
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).
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). 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 ...