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United States v. Perez

United States District Court, D. Massachusetts

December 18, 2018

UNITED STATES OF AMERICA,
v.
JUAN PEREZ, Defendant.

          MEMORANDUM AND ORDER REGARDING RENEWED MOTION FOR DISCOVERY (DKT. NO. 517)

          MARK G. MASTROIANNI, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Presently before the court is a Renewed Motion for Discovery filed by Juan Perez (“Defendant”), in which he seeks an order directing the government to provide unredacted copies of affidavits filed in support of applications for warrants under Title III of the Omnibus Crime Control and Safe Streets Act (“Title III”), 18 U.S.C. §§ 2510-2522. The government previously provided Defendant with the Title III applications and orders but, following a series of discovery skirmishes, Defendant learned that these materials were redacted to remove certain attachments to the affidavits discussing a confidential informant. The weighty legal issue presented here is whether the government may withhold disclosure of information contained in Title III warrant applications pursuant to the informant's privilege, see Roviaro v. United States, 353 U.S. 53 (1957), despite the requirement set forth in 18 U.S.C. § 2518(9) that the government provide the defendant with a copy of the Title III application and court order before introducing any evidence derived from the warrant at trial or in any proceeding. The court concludes that if Roviaro were the only standard applicable the result would be different, but here Congress has made clear in a comprehensive statutory scheme that the entire application must be provided to the defendant. Accordingly, the court will grant Defendant's motion.

         II. Background and Procedural History

         Defendant has been charged with conspiracy to distribute heroin and to possess heroin with intent to distribute. (Dkt. No. 464.) He is one of nineteen co-defendants charged in the second superseding indictment with crimes related to drug trafficking. As part of the investigation into the drug trafficking organization, the government applied for and was granted a series of Title III wiretap warrants. (See Dkt. Nos. 16-93014-MGM, 16-93015-MGM, 16-93016-MGM, and 16-93019-MGM.) The affidavits filed in support of the warrant applications describe in detail the investigation, what the government expected to learn through the wiretaps, and why traditional investigative techniques were insufficient, among other things.

         Following a discovery request submitted by Defendant and the government's declination to provide all the requested information, Defendant filed a Motion to Compel Discovery. (Dkt. No. 341.) Defendant sought, among other items, disclosure of the identity of a target of a wiretap warrant on the theory that this individual was actually a confidential informant, the government had not disclosed this fact to the court in the wiretap applications, and, as a result, the government had not satisfied the “necessity” requirement for Title III warrant applications. See 18 U.S.C. § 2518(1)(c) (“Each application shall include . . . a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”).

         As the parties litigated this issue before Magistrate Judge Katherine A. Robertson, the government maintained-while being careful not to confirm or deny the target's status as a confidential informant-that the court had not been misled in approving the wiretap applications. In one of its public filings, the government cited, in a footnote, certain pages in the underlying Title III applications to support its assertion “that the issuing Judge was not misled.” (Dkt. No. 426 at 7 & n.4.) Immediately following the citation of the Title III applications, the government stated:

These documents were filed under seal and remain under seal per order of the Court. The documents have been provided to the defendants in the government's automatic disclosures, but these particular pages were provided in a completely redacted form. At the time, the defendants were also provided notice of the government's declination to provide un-redacted versions of these pages pursuant to LR 7.2 and LR 116.6.

(Dkt. No. 426 at 7 n.4.)

         After Judge Robertson denied Defendant's motion, Defendant appealed that ruling to the undersigned. (Dkt Nos. 433, 445.) This court affirmed Judge Robertson's order on this issue, explaining that she “did not clearly err, abuse her discretion, or rule contrary to law in finding that Defendant failed to make an adequate showing of materiality” under Fed. R. Crim. P. 16 based on Defendant's “necessity” argument. (Dkt. No. 492.) This court additionally explained that it had reviewed the underlying Title III applications and orders (which it had originally issued) and found that it was not misled. (Id.) In light of the revelation that the government had provided redacted copies of the Title III applications (purportedly in compliance with Local Rule 116.6), however, this court explained that its “ruling is without prejudice to Defendant's ability to seek, pursuant to Local Rule 116.6, unredacted copies of the Title III applications and affidavits already provided by the Government.” (Id.)

         Thereafter, Defendant filed his pending Renewed Motion for Discovery. (Dkt. No. 517.) Defendant asserted that, in providing him with a discovery letter and the Title III materials, the government had not apprised him it “was declining to provide any portion of the Title III materials.” (Id. at 1.) Instead, he explained: “As a result of a series of hearings on his requests the Defendant has now learned that the Government's Application contained an [Attachment] ‘A' that was not provided to Defendant.” (Id.)[1] With this new information, Defendant moved for production of the redacted attachment under the framework provided by Local Rule 116.6(a), but substantively relying on 18 U.S.C. § 2518(9). In response, the government asserted the “informant's privilege” recognized in Roviaro, [2] but did not address Defendant's argument that 18 U.S.C. § 2518(9) controlled over Roviaro. Accordingly, at a status conference, the court explained that to the extent Defendant's Renewed Motion for Discovery was governed by a pure Roviaro analysis, his motion would be denied. (Dkt. No. 566.) However, the court directed the government to file a supplemental brief addressing Defendant's statutory argument and provided Defendant an opportunity to respond. (Id.) With the issue now fully briefed, Defendant's motion is ripe for resolution.

         IV. Analysis

         Defendant argues the plain meaning of 18 U.S.C.§ 2518(9) requires the government to furnish to a defendant the entire Title III application (including affidavits filed in support without redaction) before evidence derived from a Title III warrant may be introduced in court. This construction is especially evident, Defendant contends, when comparing section 2518(9) to other provisions in Title III which limit disclosure of the application in separate contexts. See United States v. Arreguin, 277 F.Supp.2d 1057, 1061-62 (E.D. Cal. 2010) (discussing statutory scheme and holding that “the government is required to disclose wiretap applications and orders in their entirety before it may use evidence derived from such wiretaps”). The government argues the informant's privilege-which permits the government “to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law, ” Roviaro, 353 U.S. at 59-limits the disclosure required by 18 U.S.C. § 2518(9). In support, the government cites United States v. Danovaro, 877 F.2d 583, 588 (7th Cir. 1989), United States v. Forrester, 616 F.3d 929, 942 (9th Cir. 2010) (which expressly rejected the holding in Arreguin), as well as three of out-of-circuit district court decisions. Before addressing these cases, the court first sets forth the relevant statutory provisions. See United States v. Kahn, 415 U.S. 143, 151 (1974) (“[T]he starting point, as in all statutory construction, is the precise language chosen by Congress in enacting Title III.”).

         “In Title III, Congress enacted a comprehensive scheme for the regulation of wiretapping and electronic surveillance.” Gelbard v. United States, 408 U.S. 41, 46 (1972). “Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions.” Id. ...


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