United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION
TO COMPEL DISCOVERY AND FOR SANCTIONS (DKT. NO. 579)
KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE.
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.
Procedural and Factual Background
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).
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
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
(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).
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).
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
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).
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).
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
moved to compel the government to identify Defendant's
conversations on the previously provided recordings (Dkt. No.
579). The government responded ...