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United States v. Rosario

United States District Court, D. Massachusetts

December 3, 2018

[15] RICHARD ROSARIO, Defendant.



         I. Introduction

         This matter is before the court on the motion of Defendant Richard Rosario ("Defendant") seeking discovery (Dkt. No. 579). The government represents that it has provided Defendant with all existing recorded oral, wire, and electronic communications, including recordings of conversations obtained from wire interceptions of two co-conspirators' telephones. According to the government, it has not identified Defendant's voice on the recordings of the intercepted conversations. Notwithstanding this disclosure, Defendant asks the court to compel the government to take additional measures to attempt to identify Defendant's voice and, if it fails to do so, to exclude evidence of Defendant's conversations at trial. For the reasons that follow, Defendant's motion is DENIED.

         II. Procedural and Factual Background

         Defendant 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 (Dkt. No. 293). The charge arose from the Drug Enforcement Administration's ("DEA") investigation into a large-scale heroin distribution operation conducted by members of the Alberto Marte Drug Trafficking Organization (the "Marte DTO") in Springfield, Massachusetts (Dkt. No. 591 at 1).

         As part of the investigation, the DEA obtained the district court's authorization to conduct wiretaps on the telephones of two members of the Marte DTO, Marte and Jiovanni Rodriguez (id. at 2). According to the government,

Marte possessed at least two cellular telephones at any given time and frequently changed telephones in order to evade detection by law enforcement agents. When Marte changed his own cellular telephone, he also provided new telephones to members of the DTO, who would then use these telephones in order to conduct their illicit narcotics distribution activities. Each of those telephones were subscribed to a fictional name or no name at all. The efforts of the Marte DTO to obscure the users of the cellular telephones in this manner made identifying the users of the phones difficult, if not impossible.

(id.). The interceptions of Marte's and Rodriguez's phones spanned the period from about April 15, 2016 to September 22, 2016 (id. at 1-2).

         The government alleges that the Marte DTO retrieved heroin from the Bronx, New York and transported it to various heroin mills in Springfield where it was packaged and distributed for sale (id. at 2). On September 22, 2016, investigators executed a search warrant at the organization's heroin mill at 156 Lebanon Street in Springfield and seized what the government believed to be Defendant's cellular telephone ("Defendant's cell phone") and more than three kilograms of heroin (id. at 2-3). According to the government, Defendant participated in the Marte DTO by packaging heroin (id. at 2). Defendant contends that the charge against him is based solely on the statements of co-conspirators who are cooperating with the government (Dkt. No. 580 at 1).

         The parties agree that the government has provided Defendant with the complete recordings of all the interceptions made on the court-authorized wiretaps (Dkt. No. 565 at 1; Dkt. No. 571 at 1). "The recordings are organized into several databases that are searchable by a number of fields, including telephone number and date. The databases also include completely translated transcripts or summaries of each intercepted phone call and text message" (Dkt. No. 591 at 3).

         At Defendant's request, the government searched the database for the telephone number of Defendant's cell phone (Dkt. No. 571 at 1-2; Dkt. No. 591 at 3). The search revealed that Defendant's cell phone was not intercepted (id.). The government has not identified any other cell phone that Defendant used (Dkt. No. 591 at 3).

         By letter of August 30, 2018, Defendant, through counsel, acknowledged receipt of "hundreds of recorded phone and text intercepts" contained on fourteen CDs and one thumb drive (Dkt. No. 565 at 1; Dkt. No. 580 at 2). Relying on Fed. R. Crim. P. 16(a)(1)(B)(i), Defendant asked the government to identify all recorded statements that he allegedly made (Dkt. No. 565 at 1-2).

         The government's responsive letter of September 13, 2018 denied Defendant's request for identification of his voice on the ground that provision of that information exceeded the scope of the government's obligation under Rule 16 and LR 116 (Dkt. No. 571 at 1-2). According to the government, it had complied with its discovery obligation by disclosing all of the intercepted communications (Dkt. No. 571 at 1-2). The Assistant United States Attorney indicated that Defendant's voice had not been identified on the recordings of the wire interceptions and acknowledged his duty to inform Defendant if his voice was identified in the future (id.).

         Defendant moved to compel the government to identify Defendant's conversations on the previously provided recordings (Dkt. No. 579). The government responded ...

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