SARA LIOI, District Judge.
On September 14, 2010, the government filed a 26 count Indictment against six defendants, including Defendant Bridget M. McCafferty.
On February 8, 2011, the Grand Jury issued a Supplemental Indictment against the defendant. (Doc. No. 181.) The Supplemental Indictment had the effect of taking the five false statements identified in the original Indictment as the false statements the defendant was alleged to have made, and separating them out into distinct counts. The Supplemental Indictment also included five new false statements that did not appear in the Indictment. In total, the defendant is now charged with ten counts of making false statements in violation of 18 U.S.C. § 1001.
Before the Court are a series of pre-trial motions filed by the defendant. Specifically, the Court shall address:
The government initially responded to all motions, with the exception of the defendant's Rule 16(a)(G) discovery motion.
The defendant seeks to suppress the fruits of the September 23, 2008 search of the defendant's private office and workspace, based upon perceived deficiencies in the FBI agent's affidavit offered in support of the application that secured the search warrant. The government responded by representing that it does not intend to offer any evidence that was seized as a result of this search in its case-in-chief, but it reserves the right to use any such evidence to impeach the defendant's credibility if she chooses to testify at trial. See Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954). The defendant was afforded any opportunity to respond to the government's "reservation," but failed to do so. Based upon the government's representation, the motion to suppress is DENIED as moot. Should the defendant choose to take the stand, and the government seek to impeach with evidence retrieved from the search, the Court, ruling in limine and without objection from the defendant, finds that the government may use the evidence for such purpose.
The defendant also moves to suppress all evidence obtained from the interception of communications obtained pursuant to 18 U.S.C. § 2518 between December 5, 2007 and August 9, 2008. The defendant claims that total suppression of all communications is necessary because these conversations were captured in violation of her rights under the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968. At the outset, the Court observes that "[i]t is well settled that in seeking suppression of evidence the burden of proof is upon the defendant to display a violation of some constitutional or statutory right justifying suppression." United States v. Feldman, 606 F.2d 673, 679 n. 11 (6th Cir.1979).
In her motion, the defendant claims that the orders authorizing the wiretaps failed to identify persons whose communications were to be intercepted, and failed to specify the scope of the interception. In addition, the defendant complains that the orders failed to meet the particularity requirement. Finally, the defendant challenges the government's minimization efforts.
The first application for interception of wire communications was filed by the government on December 5, 2007, and the first order of authorization was also filed on December 5, 2007. (See Doc. No. 132-1, attached compact disc.) While each subsequent application included different factual details, and identified new schemes as they were unearthed during the investigation, the defendant concedes that "[e]ach of the applications mirrored the original application [...]." (Doc. No. 132 at 3.) The first order of authorization was also issued on December 5, 2007 (see Doc. No. 132-1, attached compact disc), and "each of the orders likewise mirrored the order issued on [December 5, 2007]." (Doc. No. 132 at 3.) Therefore, the analysis will apply equally to all applications and orders.
Title III allows an aggrieved person
18 U.S.C. § 2518(10)(a).
Orders authorizing surveillance under Title III must include, among other things, the identity, if known, of the persons whose communications are to be intercepted and the nature and location of the place where the interception is to occur. The order must also describe the type of communication to be intercepted, the particular crime to which it relates, and the period during which interception is authorized. The defendant challenges the sufficiency of the orders of authorization, alleging that they fail to identify the persons whose communications are authorized to be intercepted and the communications that are to be intercepted.
A review of the December 5, 2007 order reveals that the order authorizing wire interceptions clearly includes in the court's findings the identification, by name, of the known target interceptees and the target subjects.
Section 2518(4)(c) requires authorization orders to contain "a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates." 18 U.S.C. § 2518(4)(c). Each order specifies that "wire communications" may be intercepted.
(December 5, 2007 Order Authorizing Interception, ¶ (b).) This same information is repeated in the instructions as to when the interception is to terminate. (See id. at p. 4.) This description of the particular offense to which the intercepted wire communications are expected to relate is sufficient to satisfy § 2518(4)(c). See, e.g., Shell v. United States, 448 F.3d 951, 956 (7th Cir.2006) (specificity requirement met when order stated wiretap of defendant would reveal discussion of gang business); United States v. Spillone, 879 F.2d 514, 517-18 (9th Cir.1989) (specificity requirement met when order listed offenses under investigation, including violation of Hobbs Act, extortion, and conspiracy).
The defendant does not deny that this information is contained somewhere in the orders. Instead, she argues that the orders
The defendant also moves to suppress alleging that the government failed to meet its statutory duty to minimize. In support of her argument, the defendant identifies 92 out of 44,290 communications that she believes demonstrate that the government failed to adequately minimize.
Title III requires the government to conduct electronic surveillance "in such a way as to minimize the interception of communications not otherwise subject to interception." 18 U.S.C. § 2518(5). To assess minimization efforts, the Court conducts "an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time." Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); Feldman, 606 F.2d at 677-78 (minimization efforts must be objectively reasonable). Title III "does not forbid interception of all non-relevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to `minimize' the interception of such conversations." Scott, 436 U.S. at 140, 98 S.Ct. 1717. The government's minimization efforts need not be perfect; instead, the monitoring agents' actions need only be "reasonable."
Before the Court can reach the merits of the defendant's minimization argument, however, it must address the issue of standing. The government contends that the defendant lacks standing to challenge minimization. A person's status as an "aggrieved person" under the statute does not confer upon them standing to challenge minimization. See United States v. Fury, 554 F.2d 522, 526 (2nd Cir.1977); United States v. Poeta, 455 F.2d 117, 122 (2nd Cir.1972); United States v. Moore, 811 F.Supp. 112, 118 (W.D.N.Y.1992). Numerous courts have held that "even defendants who are named as targets of the investigation may lack standing to challenge law enforcement's minimization techniques if they did not have an expectation of privacy in the residence in which the tapped phone was located." United States v. Gallo, 863 F.2d 185, 192 (2nd Cir.1988); United States v. Castillo-Martinez, 2007 WL 1026363, *5 (W.D.N.Y. Apr. 2, 2007) (citing United States v. Ruggiero, 928 F.2d 1289, 1303 (2nd Cir. 1991) (named target did not have an expectation of privacy in phone owned by another)). See United States v. Vasconcellos, 658 F.Supp.2d 366, 382 (N.D.N.Y.2009); Moore, 811 F.Supp. at 118.
Other courts have drawn slightly different lines, finding that a defendant "has standing to challenge minimization if the government `overheard conversations of [the person] himself or conversations occurring on his premises, whether or not he was present or participated in those conversations.'" United States v. Parks, 1997 WL 136761, *11 (N.D.Ill. Mar. 24, 1997) (quoting Alderman v. United States, 394 U.S. 165, 176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (emphasis added)). See United States v. Mavroules, 813 F.Supp. 115, 117 (D.Mass.1993) (defendant lacked standing where he did not contend that the tap was either "an unlawfully overheard conversation of [ . . . ] himself or conversations occurring on his premise"); United States v. Suquet, 547 F.Supp. 1034, 1038 (N.D.Ill. 1982) (citing Alderman, 394 U.S. at 176, 89 S.Ct. 961) ("[W]hen objecting to the introduction of a given call X, a defendant must show that he or she was a party to call X or that he or she has a privacy interest in the premises housing the tapped phone.").
It is undisputed that the defendant did not have a possessory interest in any of the phones that were the subject of the wiretap orders issued in this case, nor did any of the intercepted calls take place on a tapped phone that was located at her residence. Consequently, and giving the defendant every benefit from the split of authority on this subject, the Court finds that the defendant has standing only to challenge the calls to which she was a party, and, as set forth below, the Court has determined that there was no violation as to these calls. Nonetheless, in an abundance of caution, the Court shall evaluate the government's minimization efforts against the defendant's argument of statutory inadequacy.
Initially, the government must make a prima facie showing of reasonable minimization. See United States v. Yarbrough, 527 F.3d 1092, 1098 (10th Cir. 2008) (citing United States v. Willis, 890 F.2d 1099, 1102 (10th Cir.1989); United States v. Gray, 372 F.Supp.2d 1025, 1042 (N.D.Ohio 2005)). "Then, the burden shifts to the defendant to show that more effective minimization was possible." Gray, 372 F.Supp.2d at 1042 (citing Willis, 890 F.2d at 1102). As to the defendant's burden, "it is not enough to identify particular calls which [she] contend[s] should not
In applying the reasonableness standard articulated in Scott, courts look to a variety of factors including: "the nature and scope of the criminal investigation; the [g]overnment's reasonable expectations of the character of conversations; and, the extent of judicial supervision over the surveillance." Feldman, 606 F.2d at 678 (collecting cases); see United States v. Uribe, 890 F.2d 554, 557 (1st Cir.1989); Thomas, 2008 U.S. Dist. LEXIS 102801, at *4. Courts may also consider the "point during the authorized period the interception was made[,]" Scott, 436 U.S. at 140, 98 S.Ct. 1717; see Parks, 1997 WL 136761, at *13, as well as the government's internal monitoring of minimization. Parks, 1997 WL 136761, at *14 (citing United States v. Dorfman, 542 F.Supp. 345, 391 (N.D.Ill. 1982); United States v. Villegas, 1993 WL 535013, *9 (S.D.N.Y. Dec. 22, 1993)).
With respect to the nature and scope of the criminal investigation, "when the investigation is focusing on what is thought to be a widespread conspiracy more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise. And it is possible that many more conversations will be permissibly intercepted because they will involve one or more of the co-conspirators." Scott, 436 U.S. at 140, 98 S.Ct. 1717. See United States v. Adams, 759 F.2d 1099, 1115 (3rd Cir.1985); Parks, 1997 WL 136761, at *12 ("The fact that this investigation was directed against a broad conspiracy eases the government's minimization burden."). The investigation further increases in complexity where the target interceptees intermingle conversations about legitimate business with those about corrupt business or illegal activity, see United States v. Abascal, 564 F.2d 821, 827 (9th Cir.1977) ("The conversing conspirators frequently discussed non-narcotic-related matters at the beginnings of conversations [ . . . ]."), or when the participants use ambiguous or coded language. See United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir.2000) (recognizing that with "guarded or coded language, a higher rate of non-relevant intercepted calls should be expected because it takes longer to figure out the meaning of a particular call"); Abascal, 564 F.2d at 827.
Here, there is no doubt that this case involves allegations of a large conspiracy with many identified and unidentified participants. The present Indictment, one of 9 filed following the government's investigation (in addition to 19 Informations filed by the government), charges fraud, corruption, obstruction of justice, making false statements to law enforcement and other federal offenses, which are alleged to have affected nearly every aspect of county government.
In addition, the sheer volume of the calls intercepted complicated the investigation. Approximately 44,000 phone calls were intercepted over a ten month period. See Gray, 372 F.Supp.2d at 1044 (considering large number of intercepted calls as a minimization factor). The investigation was further hampered by the fact that the targets mixed conversations about legitimate business with those about corrupt activities. Because the targets were employed in lawful positions in the business and the public sectors, and because the alleged criminal conduct was so closely tied to these lawful positions, it is no wonder that the monitoring agents could not always immediately minimize an innocent call without some initial monitoring. The fact that the targets and co-conspirators were also friends and political allies, who relied on their professional and political relationships to further the conspiracy, compounded even more the difficult task of the monitoring agents by requiring them to determine whether a conversation regarding benign, personal matters might turn to criminal concerns.
Notwithstanding the breadth and complexity of the investigation, the government offers evidence to establish that it was still able to minimize over 1/3 of the calls over two minutes.
Nonetheless, the government acknowledges that a large number of "agent-designated non-pertinent" calls were captured during the wiretaps, but notes that the number is over-inclusive.
Moreover, the Supreme Court has cautioned that:
As for the government's reasonable expectation of the character of the conversations, the government offers substantial evidence that the Target Interceptees and those they contacted employed ambiguous or coded language during their conversations. (See Doc. No. 148 at 17 n. 7, citing examples of ambiguous or coded language.) Employment of ambiguous language increases the challenge before the monitoring agents. See Abascal, 564 F.2d at 827; United States v. Hoffman, 832 F.2d 1299, 1308 (1987) (use of "coded language" is a factor which "militates strongly in favor of added leeway" in evaluating minimization efforts); Gray, 372 F.Supp.2d at 1045.
With the exception of Dimora's home telephone, each of the telephones monitored was a Target Interceptee's personal cellular telephone used primarily by the Target Interceptee. As the Court previously observed, the government minimized more than 50% of the calls made to the Dimora home telephone because it anticipated that many innocent calls may originate from this line. See Parks, 1997 WL 136761, at *13 (citing United States v. Quintana, 508 F.2d 867, 874-75 (7th Cir.1974) ("Although the government must increase its minimization efforts when it has reason to expect a large volume of innocent calls, it might nevertheless conduct some monitoring during those times in order to determine that they are in fact innocent.")). Likewise, the government did not even ask to monitor other home or work telephones, which were likely to receive a high number of innocent calls involving those inside and outside of the conspiracy. In sum, it is a clear that the government tailored its monitoring to focus on where and when it reasonably believed the majority of the relevant calls would be placed. See Parks, 1997 WL 13761, at *12.
The Court now turns to a consideration of "the degree of judicial supervision over the surveillance practices." See United States v. Angiulo, 847 F.2d 956, 979 (1st Cir.1988); see also Feldman, 606 F.2d at 678. In this case, judicial supervision, which included the bi-monthly review of progress reports, was more than adequate, "which suggests that the agents complied with the minimization requirements." Gray, 372 F.Supp.2d at 1045 (citing Feldman, 606 F.2d at 678). In addition, the government states, and the defendant does not challenge, that the monitoring agents were provided with a memorandum detailing the minimization requirements. The Assistant U.S. Attorneys who submitted the Title III Applications reviewed the summaries of the intercepted communications during the monitoring and confirmed that agents were minimizing conversations. These precautions establish that the supervision was sufficient to properly minimize non-pertinent calls.
In view of these circumstances, the Court concludes that the government has made a showing that its minimization efforts were objectively reasonable. The burden now shifts to the defendant to show a pattern of intercepting non-pertinent conversations. The defendant has not met this burden.
The defendant has identified a list of isolated instances where the agents intercepted non-pertinent conversations. The Court begins with the twenty-three calls
The defendant was permitted an opportunity to supplement her motion to suppress with additional calls that she believed would support her position. In total, the defendant identified 69 additional calls that she believed support a finding of a pattern of failure to minimize. Of these new calls, 4 were less than two minutes and were not subject to minimization. Even if the Court were to find that all 65 remaining calls, as well as the 21 calls over two minutes identified in the original motion, should have been minimized in their entirety,
Of course, if the monitoring agents did fail to minimize certain non-pertinent calls, this would not warrant the drastic remedy the defendant seeks. At most, suppression of only the non-pertinent calls that were improperly minimized would be warranted. See United States v. Baltas, 236 F.3d 27, 32 (1st Cir.2001) ("[E]rrors in minimizing one particular interception within the context of a lengthy and complex investigation [ . . . ] do not automatically warrant suppression of all the evidence."), cert, denied, 532 U.S. 1030, 121 S.Ct. 1982, 149 L.Ed.2d 773 (2001); see Gray, 372 F.Supp.2d at 1046. The First Circuit has noted that "in a particularly horrendous case, total suppression may be
There are six conversations involving the defendant that she claims were improperly intercepted. The first call (Def. Ex. A, April 18, 2008), lasted one minute and twenty-two seconds and was, therefore, not subject to interception. The second call (Def. Ex. B, May 27, 2008), which lasted only six seconds over the two minute mark, see Gray, 372 F.Supp.2d at 1045 (considering calls less than two or three minutes too short to minimize), involved a call from McCafferty to Russo regarding an attorney who was appearing in a case before McCafferty. While the defendant insists that this was a purely innocent conversation regarding legislative matters (specifically, information that she gave to an attorney regarding the county reform issue), the government notes that the conversation was relevant because, in a conversation several days earlier between the defendant and Russo, the defendant had told Russo that she put the particular attorney in a room so that Russo could speak privately with him. (Call 2078, Russo Cellular, May 21, 2008.) The defendant also told Russo that she had continued a jury trial so that the attorney could assist Russo in responding to an anticipated newspaper article critical of Russo's hiring practices. (Id.) Earlier that afternoon, Russo and Dimora had a 21 minute conversation regarding the Plain Dealer article.
The third conversation (Def. Ex. C) occurred on June 29, 2008. By this time, the government had intercepted calls it believed demonstrated that Russo had communicated with the defendant and other judges, attempting to influence pending cases in several different courts. Specifically, with respect to cases before the defendant, the government believed that it had discovered evidence that demonstrated that Dimora had attempted to influence the outcome one of the defendant's cases.
The fourth captured conversation occurred on July 15, 2008. (See Def. Ex. D.) This call from the defendant to Russo was originally minimized, but on a spot check the monitoring agent heard Russo inquiring into a case pending on the defendant's docket. This call forms the basis for one of the alleged false statements identified in the Supplemental Indictment, and involves the defendant purporting to promise Russo to give a case before her special attention for him. The government's treatment of this call was anything but improper, and illustrates the difficulties the monitoring agents faced in screening the intercepted calls. At the beginning of the conversation, Russo and the defendant spoke of the defendant's medical issues, and the monitoring agent minimized it as a personal conversation. It was only because of the agent's chance spot check that he realized that the participants had moved on to discuss matters arguably associated with the underlying conspiracies. Since this conversation was mostly likely overly-minimized, the defendant certainly cannot suggest that the government failed to properly minimize this conversation.
Defendant's Exhibit E involved a conversation lasting two minutes and seventeen seconds, barely over the two minute threshold, and involved the funeral arrangements for a mutual friend. A short time into the call, the defendant surrendered the phone to another individual, and she arguably has no standing to challenge this portion of the call. Nonetheless, the defendant complains that this call should have been minimized because the defendant identifies the reason for the call, a personal reason, at the outset of the conversation. As Exhibit D demonstrates, however, Russo and the defendant often mixed personal and business topics in their conversations. Moreover, it appears that the deceased's relative worked in the Auditor's Office.
Finally, McCafferty challenges the government's interception of an ex parte conversation between herself and Pumper, a litigant in a matter before her. (Def. Ex. W.) The call lasted only one minute and nine seconds, and was not, therefore, subject to minimization. Further, it is the government's theory of the case that this conversation demonstrates the defendant's bias in a case, a bias that Dimora attempted to exploit. (See Indictment Counts 20-24.) Because the conversation appeared to relate to the effect of Dimora's efforts to influence cases, it was properly intercepted.
For all of these reasons, the conversations involving the defendant were properly captured and were not subject to minimization. Further, the defendant's motion to suppress all wire interceptions is DENIED.
McCafferty also seeks to compel the government to provide copies of progress reports that were submitted in compliance with the provisions in each of the orders authorizing interception of wire communications, and argues that the reports are "material to preparing the defense" and should, therefore, be produced
A judge issuing a wiretap order under Title III may require that periodic reports be filed to aid the judge in determining "what progress has been made toward achievement of the authorized objective (of the wiretap) and the need for continued interception." 18 U.S.C. § 2518(6). The statute does not require the submission of such reports, and it is up to the issuing judge to determine whether, and at what intervals, such reports are to be filed.
"Courts generally recognize that a defendant's challenge to minimization does not depend on these reports." United States v. Wright, 121 F.Supp.2d 1344, 1350 (D.Kan.2000) As the court explained in United States v. Orozco, 108 F.R.D. 313 (S.D.Cal.1985):
108 F.R.D. at 316; see United States v. Birdman, 1992 WL 203318, *1, 1992 U.S. Dist. LEXIS 12155, *2 (E.D.Pa. Aug. 14, 1992).
Because these reports are merely summaries,
The defendant also seeks these reports, however, to show that the government failed to comply with the orders' requirements that reports be submitted pursuant to 18 U.S.C. § 2518(6). She argues, without support, that the failure to comply with the statutory provisions dictating the preparation and submission of such reports would require suppression of the intercepted communications. The Court is not persuaded.
Where required, progress reports are offered solely to aid the issuing judge, and the sufficiency of these reports is a matter for the issuing judge. United States v. Marchman, 399 F.Supp. 585, 586 (E.D.Tenn.1975). Moreover, inasmuch as the reports are summaries prepared by law enforcement agents, courts have held that these reports fall within the parameters
Finally, the defendant has moved to compel the government to provide a written summary of the testimony of Lori Brown, an expert witness whom the government intends to call during its case-in-chief. The government has failed to file a witten opposition to this motion, and the time set by the Court for such a response has passed.
Rule 16(a)(1)(G) provides:
Fed.R.Crim.P. 16(a)(1)(G). On January 14, 2011, the defendant requested that the government provide her with a summary of the testimony of the government's expert witness, Lori Brown. The defendant contends that the government has failed to provide a response to her letter that would satisfy Rule 16.
At the January 27, 2011 motion hearing, the government indicated that it did respond to the defendant's January 14, 2011 letter by advising the defendant that Ms. Brown would be testifying as to various judicial canons, and by providing Ms. Brown's curriculum vitae. The Court finds this response lacking.
While the government no doubt expects the defendant to glean from its representation regarding Ms. Brown's testimony that the defendant's actions violated the judicial canons of which Ms. Brown plans to testify, this response completely fails to meaningfully "describe the witness's opinions, the bases and reasons for those opinions [...]." Fed.R.Crim.P. 16(a)(1)(G). The defendant's motion to compel is, therefore, GRANTED. The government is directed to submit a written summary of Ms. Brown's testimony that fully complies with Rule 16(a)(1)(G) within 10 days of this Opinion and Order.
For all of the foregoing reasons, the defendant's motion to suppress evidence of intercepted wire communications (Doc. No. 132) is DENIED, and the defendant's motion to suppress evidence from the search of her office (Doc. No. 130) is DENIED as moot. In addition, the defendant's motion to compel the production of progress reports (Doc. No. 127) is DENIED, and the defendant's motion for the production of a written summary of the government's expert witness (Doc. No. 155) is GRANTED.
