BERYL A. HOWELL, Chief Judge.
This is the third opinion issued in this case. See United States v. Apodaca ("Apodaca I"), 251 F.Supp.3d 1, 2 (D.D.C. 2017) (granting the government's motion to enforce two administrative subpoenas); United States v. Apodaca ("Apodaca II"), Crim. No. 14-57 (BAH), 275 F.Supp.3d 123, 159, 2017 WL 3575655, at *23, 2017 U.S. Dist. LEXIS 131617, at *73 (D.D.C. Aug. 17, 2017) (resolving pretrial motions).
The pending motions are addressed in the following order: Part I discusses the defendants' four motions seeking suppression of intercepted BlackBerry text messages and related discovery, ECF Nos. 33, 40, 41, and 45; Part II discusses the government's motion seeking reconsideration of the use at trial of certain transcripts of intercepted BlackBerry messages, ECF
The general factual and procedural background in this case has been amply described in Apodaca II, 275 F.Supp.3d at 130-34, 2017 WL 3575655, at *1-4, 2017 U.S. Dist. LEXIS 131617, at *4-13, and will not be repeated here.
As part of a multi-prong challenge to the government's introduction of Title III intercepts at trial, the defendants have jointly moved to suppress "any and all communications intercepted by the Government pursuant to ... Title III," on the ground that the orders authorizing the intercepts were "facially insufficient." Defs.' Mot. Suppress T. III Intercepts at 1.
The government conducted a 22-month wiretap investigation between February 2013 and December 2014, during which the government submitted and obtained 27 applications for electronic intercepts and ultimately intercepted "thousands of pertinent electronic communications (Blackberry Messenger text messages [`BBMs'])" from "over [59] different devices." Gov't's Opp'n Defs.' Mot. Suppress T. III Intercepts ("Gov't's First Opp'n T. III Intercepts") at 2-3, ECF No. 68. The first wiretap application and order targeted the electronic communications of Panfilo, who was using "Target Device 1." Id. at 3-4. Over the course of the investigation, three additional BlackBerry devices used by Panfilo were subject to court-authorized interception. Id. In total, "[t]he government intercepted approximately 12,500 pertinent electronic communications between Panfilo and other [alleged] co-conspirators." Id. at 4. Apparently, these pertinent BBMs of Panfilo's were intercepted during thirteen months in 2013 and 2014: February through October, 2013, and May, June, July, and December 2014. See Gov't's Opp'n Defs.' Mot. Compel Discovery ("Gov't's Opp'n Defs.' Discovery Mots.") at 3-4, ECF No. 44 (listing "periods of time" in which intercepted communications "are between Panfilo and various co-conspirators"); Defs.' Suppl. Reply Supp. Mot. Suppress T. III Intercepts ("Defs.' Second Reply Mot. Suppress T. III Intercepts") at
The government's initial application, seeking to intercept electronic communications over Target Device #1 was granted by the District Court in the Western District of Texas, on February 19, 2013. See id. at 2-3; see also id., Ex. 1, Application for Interception for Electronic Communications ("Initial T. III App.") ¶ 2, ECF No. 68-1; id., Ex. 2, Order Authorizing the Interception of Electronic Communications ("Initial T. III Order") at 3-7, ECF No. 68-2. That first application and order, as well as the twenty-six that followed, all contained "the same information — a Government attorney's name in the application and order, and reference [to] the appropriately designated [Department of Justice (`DOJ')] official," as is required by 18 U.S.C. § 2516(3) for interceptions of electronic communications. Gov't's First Opp'n T. III Intercepts at 3. Although "the Government sought only to intercept electronic communications when it first applied for judicial authorization," the wiretap also intercepted some "wire (voice) communications," mostly "in the form of `voice notes,'" which are in a compressed audio Adaptive Multi-Rate ("AMR") file format. Gov't's' Third Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts ("Gov't's Fourth Opp'n T. III Intercepts") at 3-4, ECF No. 113. The interception of these voice notes, or AMR files, was due to BMM's functionality in transmitting both audio and text communications over the same network and the Blackberry service provider's inability to disaggregate the two formats of communications. Gov't's Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts ("Gov't's Second Opp'n T. III Intercepts") at 3-4, ECF No. 89. As the government explains, BBM is BlackBerry's "proprietary instant messaging service," and "[u]sers of BBM are able to attach video and audio files, including `voice notes,' to standard text conversations and send these messages as BBM communications utilizing [BlackBerry's] network." Id. at 3. BlackBerry announced the voice notes functionality in December 2012, three months before the wiretap investigation in this case began. Defs.' Third Reply Supp. Mot. Suppress Title III Intercepts ("Defs.' Fourth Reply Mot. Suppress T. III Intercepts") at 2, ECF No. 129.
The government does not dispute that wire communications in the form of AMR files were intercepted, along with the court-authorized electronic communications. To deal with the occurrence of unauthorized intercepted wire communications, monitors at the reviewing site in El Paso, Texas were directed, in accordance with the instructions in the government's applications and orders, promptly to minimize such communications. Gov't's Second Opp'n T. III Intercepts at 4; see also, e.g., Initial T. III App. at 8; Initial T. III Order at 6-7, ECF No. 68-2. The government instructed monitors not to listen to any unauthorized intercepted wire communications in both verbal instructions and in signs taped to monitors' computers that stated "Do Not Listen to Any Audio Files." Jt. Stm. Discovery ¶ 5. At trial, the government plans to use as evidence only "lawfully intercepted electronic communications." Gov't's Opp'n Defs.' Discovery Mots. at 3-4.
The government has dribbled out information regarding the wiretaps, prompting over four rounds of briefing and two status conferences to clarify the basic facts related to this aspect of the government's
Specifically, the defendants reason that "the Government knew — or should have known" from the outset of the investigation that the wiretaps "would inevitably" capture both electronic and wire communications.
At the outset, the government concedes that the seven AMR files improperly marked as pertinent must be suppressed. Gov't's Fourth Opp'n T. III Intercepts at 5 (citing United States v. Suggs, 531 F.Supp.2d 13, 24 (D.D.C. 2008), aff'd sub nom. United States v. Glover, 681 F.3d 411 (D.C. Cir. 2012)). The government posits, however, that suppression of the intercepted electronic communications is not warranted because the government only targeted electronic communications in connection with Panfilo and, thus, did not need to satisfy any different statutory authorization requirements applicable to
When first enacted, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified at 18 U.S.C. §§ 2510-2522, addressed only the interception of wire and oral communications, and barred admission at trial of such communications, plus "evidence derived therefrom ... if disclosure of that information would be in violation of this chapter," 18 U.S.C. § 2515. This law also authorized "[a]ny aggrieved person" to seek suppression of such communications, "or evidence derived therefrom," on the following three grounds: "(i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval." Id. § 2518(10)(a). Title III was amended in 1986, by the Electronic Communications Privacy Act of 1986 ("ECPA"), Pub. L. No. 99-508, 100 Stat. 1848 (1986), to expand certain protections provided to wire and oral communications, to electronic communications, see, e.g., 18 U.S.C. § 2511(1)(a),(c), (d) and (e) (penalizing unauthorized interception of wire, oral and electronic communications).
In particular, as relevant to the instant suppression motion, Title III provides that an order "authorizing or approving the interception of any wire, oral, or electronic communication" must specify, inter alia, "the identity of the agency authorized to intercept the communications, and of the person authorizing the application." Id.
The defendants argue that the wiretap orders at issue in this case are "insufficient on [their] face" for failing to identify the appropriate high-ranking DOJ official authorizing the interceptions. See Defs.' Mot. Suppress T. III Intercepts at 1, 4 (internal quotation marks and citation omitted). In advancing this argument, the defendants rely on Scurry, in which the D.C. Circuit held that "a [Title III] wiretap order is `insufficient on its face,' 18 U.S.C. § 2518(10)(a)(ii), where it fails to identify the Justice Department official who approved the underlying application, as required by Title III, id. § 2518(4)(d)." Scurry, 821 F.3d at 5. Given that the orders authorizing the wiretaps in Scurry did not specify the statutorily required high-ranking DOJ official who had signed off on the underlying application, the D.C. Circuit mandated that the information collected pursuant to the wiretaps at issue be suppressed. Id.
At issue in Scurry were wire communications.
As noted, the defendants' evolved position, which relies heavily on legislative history, is that the government should have sought and obtained authorization to intercept both wire and electronic communications. See Defs.' Fourth Reply Mot. Suppress T. III Intercepts at 8-10; Defs.' Third Reply Mot. Suppress T. III Intercepts at 1-2. In particular, the defendants point to a House Judiciary Committee Report on ECPA, stating that: "The Committee understands that [DOJ] will apply for a court order under the `wire' standards in cases where a tap may intercept mixed wire and electronic communications," and "[a]s long as the wire standards are followed a single court order should suffice to authorize the interception of both wire and electronic communications involving the same lines of instruments." Id. at 2 (quoting H.R. REP. NO. 99-647, at 35-36 (1986)).
In short, this House Judiciary Committee Report language may bear on situations in which the government is actually seeking to capture both electronic and wire forms of communications, but this was not the government's intent here. The government only began collecting these AMR files in this case because of "a technological limitation." Gov't's' Second Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts ("Gov't's Third Opp'n T. III Intercepts") at 14, ECF No. 101-2. Indeed, as the government explains, BlackBerry was "unable to discern [whether] a particular BBM contain[ed] an embedded wire communication unless it manually reviewed the data for audio files, and concluded the audio files included the human voice," which BlackBerry declined to do. Gov't's Second Opp'n T. III Intercepts at 4; see also Status Conf. Hr'g (rough) Tr. (Aug. 17, 2017) at 70-79. As a result, BlackBerry "automatically" forwarded data, without separating the electronic from the wire communications, to the FBI Data Intercept Technology Unit ("DITU") server, which then "automatically forwarded the messages in this case to specialized equipment located at the FBI El Paso Division, where it was reviewed by the monitors." Gov't's Second Opp'n T. III Intercepts at 3. To address this technical challenge of disaggregating AMR files from the court-authorized electronic intercepts, the government took steps to ensure monitors minimized and did not listen to any unauthorized AMR and other audio files. See Gov't's Second Opp'n T. III Intercepts at 4; Jt. Stm. Discovery ¶ 5 (discussing verbal instructions and signage on minimization).
The government contends that "simply because it is technically possible to intercept wire communications concurrently with electronic communications," law enforcement should not be required to seek authority to intercept both under the wire standard. Gov't's Fourth Opp'n T. III Intercepts at 4. The perverse result of such a requirement would be that some communication technologies might be put outside the reach altogether of Title III surveillance or, alternatively, more intrusive surveillance may ensue. For example, if the government seeks, and only has probable
The Court concludes that the government took appropriate steps to minimize wire communications, which were intercepted due to the technology subject to surveillance, and that the Title III applications and orders at issue are facially valid since they sought only the interception of electronic communications and, consequently, reflect the appropriate authorizing government attorney's approval.
The final issue raised by the defendants is whether the interception of seven AMR files, which the government concedes are wire communications and therefore were improperly marked "pertinent," requires suppression of the entire wiretap. See Defs.' Second Reply Mot. Suppress T. III Intercepts at 2; Gov't's Fourth Opp'n T. III Intercepts 4-5. As noted, the government reports that approximately 170 AMR files were intercepted, 163 of which were minimized and seven of which were "erroneously marked pertinent." Gov't's Second Opp'n T. III Intercepts at 4. The monitors were instructed "not to open or listen to an AMR files because they did not have authorization to intercept wire communications." Id. According to the government,
The statutory requirement that government surveillance of communications "minimize the interception of communications not otherwise subject to interception under this chapter," 18 U.S.C. § 2518(5), does not create an "inflexible rule of law." Scott v. United States, 436 U.S. 128, 139, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). Rather the requirement demands an evaluation of the "facts and circumstances of each case." Id. at 140, 98 S.Ct. 1717. In this case, the government took reasonable efforts, given the technical obstacles to avoiding collection of AMR files during court-authorized interception of electronic communications, to minimize the wire communications. Indeed, the only alternative suggested by the defendants is for the government to have sought and obtained additional authority to expand the surveillance to encompass all wire communications, see Defs.' Second Reply Mot. Suppress T. III Intercepts at 3, which is no solution at all to the minimization challenge.
The proper remedy here is to suppress only those seven AMR files erroneously marked pertinent, similar to situations in which partial suppression is ordered when the government has failed to minimize certain intercepted communications properly. Gov't's Fourth Opp'n T. III Intercepts at 5 (citing Suggs, 531 F.Supp.2d at 24). In Suggs, the court explained that "[t]otal suppression `is not appropriate unless the moving party shows that there was a taint upon the investigation as a whole sufficient to warrant sweeping relief ... and is reserved for the particularly horrendous case ... where the government has made effectively no effort towards minimization whatsoever." 531 F.Supp.2d at 24 (internal quotation marks and citations omitted). Suppressing all the BBM interceptions in this case due to the interception of AMR files would not be appropriate where, as here, the AMR files were transmitted with, and inseparable from, the lawfully intercepted electronic communications and were effectively minimized.
Accordingly, the defendants' motion to suppress the entire Title III intercept is
Both defendants have moved, pursuant to Federal Rule of Criminal Procedure 16, to compel discovery of material related to the Title III wiretaps. See generally Agustin's Discovery Mot.; Panfilo's Discovery Mot.; Panfilo's Am. Discovery Mot. Specifically,
The defendants seek both Panfilo's minimized intercepts and co-conspirator intercepts in order to "argue that the Government improperly minimized the communications ... and search for exculpatory information." Jt. Stm. Discovery ¶ 7.
"Rule 16 is a discovery rule designed to protect defendants by compelling the prosecution to turn over to the defense evidence material to the charges at issue." Yates v. United States, ___ U.S. ___, 135 S.Ct. 1074, 1083, 191 L.Ed.2d 64 (2015). Specifically, five types of evidence must be turned over: (1) the defendant's oral, written, or recorded statements, FED. R. CRIM. P. 16(a)(1)(A)-(B); (2) the defendant's prior criminal record, FED. R. CRIM. P. 16(a)(1)(D); (3) certain documents and objects, "if the item is within the government's possession, custody, or control," FED. R. CRIM. P. 16(a)(1)(E); (4) the results or reports of any physical or mental examination, test, or experiment, FED. R. CRIM. P. 16(a)(1)(F); and (5) a written summary of any expert testimony that the government intends to use during its case-in-chief at trial, FED. R. CRIM. P. 16(a)(1)(G). The defendants' instant motions to compel hinge on the third category of evidence. See FED. R. CRIM. P. 16(a)(1)(E).
Under Rule 16(a)(1)(E), "the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and," inter alia, "the item is material to preparing the defense" or "the government intends to use the item in its case-in-chief at trial." FED. R. CRIM. P. 16(a)(1)(E)(i)-(ii); see United States v. Thompson, 562 F.3d 387, 396 (D.C. Cir. 2009). Here, the government intends to use Panfilo's electronic communications in its case-in-chief "as direct evidence against Defendant Panfilo and as
In other word, "the evidence must not simply bear some abstract relationship to the issues in the case, ... and the government must disclose Rule 16 evidence only if such evidence enables the defendant significantly to alter the quantum of proof in his favor." United States v. Libby, 429 F.Supp.2d 1, 7 (D.D.C. 2006) (internal quotation marks and citation omitted). Rule 16(a)(1)(E) applies equally to exculpatory and inculpatory evidence, since "it is just as important to the preparation of a defense to know its potential pitfalls as it is to know its strengths." Marshall, 132 F.3d at 67.
As a general matter, "Rule 16 establishes `the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases.'" United States v. Karake, 281 F.Supp.2d 302, 306 (D.D.C. 2003) (quoting FED. R. CRIM. P. 16 advisory committee's note to the 1974 amendments). That being said, "Rule 16 does not authorize a blanket request to see the prosecution's file." United States v. Maranzino, 860 F.2d 981, 985-86 (10th Cir. 1988) (citing Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957)).
The defendants fail to demonstrate that the minimized Panfilo intercepts and co-conspirator intercepts are "material" to preparing their defenses in "response to the Government's case in chief." Armstrong, 517 U.S. at 462, 116 S.Ct. 1480. To the contrary, the two reasons the defendants have put forward to compel this discovery — the possibility of finding some exculpatory information and to verify the government's minimization procedures — fall far short of justifying the massive discovery undertaking contemplated by this request. They are simply not entitled to the broad, time-consuming and burdensome fishing expedition encompassed by this discovery demand. Cf. United States v. George, 786 F.Supp. 11, 14 (D.D.C. 1991) ("At least one of the rationales behind the materiality requirement (and limiting discovery by criminal defendants generally) is to insure that the government not expend excessive time and effort securing documents for the defendant.").
Agustin has provided a similarly vague rationale for seeking the minimized and co-conspirator intercepts: "The defense must have access to all the intercepts in order to analyze their contents and determine what evidence exists that both potentially inculpates or exculpates him of the charges in this case." Agustin's Discovery Mot. at 4. As a threshold matter, the government has stated that the undisclosed intercepts will not be introduced in the government's case-in-chief, and, accordingly, the inculpatory nature of any of these communications is not material. Moreover, Agustin has provided absolutely no information about why communications to which he was not a party because he was incarcerated would contain any exculpatory information about him. The defendants' mere desire to "search" the intercepts "for exculpatory information," Jt. Stm. Discovery ¶ 7, reveals this request as the fishing expedition it is.
In contrast to the defendants' speculative reasons proffered here, in other cases in which a defendant has made a Rule 16(a)(1)(E) motion to compel discovery based on its potential exculpatory value, the defendant clearly identified how the evidence would further the defense. See, e.g., United States v. O'Keefe, Crim. No. 06-249 (PLF), 2007 WL 1239204, *1, 2007 U.S. Dist. LEXIS 31053, *2, 11 (D.D.C. Apr. 27, 2007) (granting a motion to compel in a corruption case where the evidence sought would prove that there was "no `official act' as a matter of law and that the defendants did not have the requisite criminal intent as a matter of fact"); Libby, 429 F.Supp.2d at 14-17 (granting in part the defendant's motion to compel and ordering disclosure of the topics covered during briefings to aid the defendant in his defense that he was preoccupied during the relevant time period); Karake, 281 F.Supp.2d at 308 (granting the defendants' motion to compel discovery where the information sought was "crucial to their ability to file motions to suppress [their] statements ..., and may reveal mitigating
In any event, the government represents that it is "unaware of any exculpatory material regarding the Defendants in this case" and affirms that it has and will continue to comply with its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); and Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Gov't's Opp'n Defs.' Discovery Mots. at 9. The government reiterated this point during the August 2, 2017 hearing and added that the members of the Meza Flores DTO (the distribution cell of a larger Mexican drug trafficking organization at issue in this case) used many different modes of communication. See Status Conf. Hr'g (rough) Tr. (Aug. 2, 2017) at 38-39. Thus, even if Panfilo were not a participant in all of the intercepted Blackberry messages among DTO members, this would not necessarily be exculpatory. Based on the government's written and oral assurances, the Court is satisfied that the government has been and will remain "vigilant in ensuring that it fulfills its discovery and Brady/Giglio obligations." Karake, 281 F.Supp.2d at 306 (accepting the government's assertion that it was aware of "no Brady information of the type described").
The next reason given by the defendants for compelling discovery of the minimized Panfilo and co-conspirator intercepts shows plainly that this discovery demand is not intended to prepare a defense in response to the government's case-in-chief. The defendants argue that receiving all intercepts, including those of alleged co-conspirators and minimized, will help show that the government improperly minimized the communications. See Jt. Stm. Discovery ¶ 7. Although the erroneous marking of seven AMR files as "pertinent" rightfully raises some concern, seven is a "small number" compared to the approximately 12,500 electronic communications marked pertinent and not minimized. Gov't's Third Opp'n T. III Intercepts at 18. In addition, given the detailed description provided by the government of the minimization procedures employed, and the fact that the seven AMR files were all received in the same session by the same monitor and have no accompanying transcript, Gov't's Second Opp'n T. III Intercepts at 5, the defendants' argument that additional minimization violations may be uncovered through the requested compelled discovery is purely speculative.
This defense effort to find additional evidence to bolster arguments challenging the minimization procedures used during the wiretap phase of the investigation does not refute any of the government's direct evidence against the defendants. To the contrary, even if additional minimization violations were found, the wiretap statute does not provide a suppression remedy for Panfilo's intercepted electronic communications, which could still be used in the government's case-in-chief. Consequently, the defendants' wishful thinking of finding additional minimization violations does not justify the requested discovery under Rule 16. See, e.g., United States v. Pray, 734 F.Supp.2d 158, 159-60 (D.D.C. 2010) (denying defendants' motion to compel discovery of periodic wiretap reports for use in challenging, inter alia, minimization and propriety of government's procedures since such evidence "do[es] not constitute material evidence"); United States v. Trabelsi, Crim. No. 06-89 (RWR), 2015 U.S. Dist. LEXIS 189343, *6-7 (D.D.C. May 8, 2015) (finding that defendant's request for discovery to was "not warranted under Rule 16(a)(1)(E)(i)" since it is "not to rebut the government's case in chief but to support an independent argument to dismiss the indictment").
The government has moved to use at trial transcripts of intercepted Black-Berry Messenger communications ("BBMs") in the form produced to the defendants on August 8, 2017. Gov't's BBMT Mot. at 1 & n.1. Shortly after initial production of the transcripts at issue, the defendants raised concern at a status conference held on August 11, 2017, that the government's proposed transcripts did not provide literal translations of certain words but instead interpreted Spanish slang to have potentially prejudicial meaning, like "cocaine" for a word literally translated as "parakeet." Status Conf. Hr'g (rough) Tr. (Aug. 11, 2017) at 4-5.
Conceding that literal translations are not used for certain Spanish words in these proposed transcripts, the government argues that the transcripts reflect "English translations of Spanish slang words or colloquialisms that are acceptable translations of the Spanish language BBM communications," based upon the "knowledge and experience" of the translator. Gov't's BBMT Mot. at 2. According to the government, if literal translations are used, the translator "would be unable to testify that the translation is a fair and accurate translation of the Spanish communication based upon her expertise and based on the context of the conversation," since interpreting the import of the communication requires more than "taking statements in one language and expressing them in a different language" but instead reflects "a continuing exercise of judgment and analysis of what is meant or intended to be said by the parties." Id. at 6-7 (internal quotation marks and citation omitted).
Specifically, the government has enumerated eleven words set out in the chart below that have been translated differently from the literal meaning to reflect the common slang understanding. See id.
Intercepted Literal Translation Slang Translation Used in Proposed Spanish Word BBM Transcripts 1 Simón Simon yes 2 Sale leave alright 3 Jale pull work, job, stuff 4 Fierro iron guns; also interjection like "Alright" or "go for it!" 5 Paro Stop; strike; stoppage "hacerme el paro" is to do me a favor 6 Chale chalet No way!; Oh my God!; sure 7 Aguitarse (no definition) bummed; bummed out 8 Parrque park ammunition; ammo 9 Morros snout/nose kid; boy 10 Pedo fart no hay pedo; there's no problem 11 Vato (no definition) dude
Here, without identifying any of the eleven words or other particular words or phrases used in the proposed transcripts as disputed, the defendants have generally challenged the transcripts' accuracy and requested "a pre-trial hearing to determine the admissibility of the materials." Defs.' Opp'n Gov't's BBMT Mot. at 1, ECF No. 100.
To the extent the defendants challenge the interpretation reflected in the transcripts, the government contends that they may do so "through cross-examination or by the presentation of another qualified translator with a contrary view." Gov't's BBMT Mot. at 3 (citing United States v. Verdin-Garcia, 516 F.3d 884, 892-93 (10th Cir. 2008) (emphasis in original); id. at 3-5 (discussing United States v. Khan, 794 F.3d 1288, 1294-97 (11th Cir. 2015) (affirming ruling admitting non-literal transcripts at trial, noting that "[d]efendants who object to the manner in which a translator has performed the difficult and delicate task of moving meaning between two languages have a number of tools at their disposal — Rule 702, cross-examination, and limiting instructions, to name a few")). The government is correct.
Although "[t]he ideal procedure for testing accuracy is to have the prosecution and defense attorneys stipulate to a transcript," United States v. Slade, 627 F.2d 293, 302 (D.C. Cir. 1980), the D.C. Circuit has provided guidance as to the appropriate procedures when, as here, the accuracy of transcripts is disputed. In this circumstance, "the trial court can make a pretrial determination of accuracy after comparing the proposed transcript against the tapes or provide the jury with one transcript reflecting the prosecution's interpretation of the recording and one version reflecting the defendant's interpretation," United States v. Holton, 116 F.3d 1536, 1541 (D.C. Cir 1997); see also Slade, 627 F.2d at 303 ("A third alternative is to present the jury with two transcripts, containing both sides' versions, and let the jury determine which is more accurate," in which "situation, because no one transcript is presented as `correct,' the judge need not necessarily listen to the tapes or pass on the accuracy of any transcript.") (internal quotation marks and citation omitted). If two competing versions of the same recording are presented, the jury "should be instructed that there is a difference of opinion as to the accuracy of the transcripts and that it is up to them to decide which, if any, version to accept. The jurors also should be instructed that they should disregard any portion of the transcript or transcripts that they think differs from what they hear on the tape recording." Holton, 116 F.3d at 1543. If only the government submits a transcript, then cautionary instructions should be given that "the transcript is only one party's version," United States v. Law, 528 F.3d 888, 901-02 (D.C. Cir. 2008) (quoting Holton, 116 F.3d at 1542).
The precise procedure to be used at trial remains unclear due to the defendants' expressed need to locate their own qualified expert interpreter. Defs.' Resp. Gov't's Not. Expert Witnesses at 3. The defendants have now had since August 8, 2017, or over four months, to do so, as well as to determine precisely which interpretations in the proposed transcripts are disputed and to prepare versions of their own transcripts, as necessary. Thus, the parties are required to submit jointly, by
In view of the defendants' withdrawal of their objection to the government's translator's qualifications, their request for a pretrial hearing to evaluate and hear expert testimony about the proposed August 8, 2017 BBM transcripts is
Both defendants previously unsuccessfully moved to dismiss Count Two of the Indictment charging a firearm offense, in violation of 18 U.S.C. § 924(c), as not applying extraterritorially and for being facially defective. See Apodaca II, 275 F.Supp.3d at 152-54, 2017 WL 3575655, at *18-19, 2017 U.S. Dist. LEXIS 131617, at *66 (denying defendants' motions to dismiss Count Two and finding that "§ 924(c) also applies extraterritorially" and "adequately informs the defendants of the § 924(c) offenses with which they are charged"). Undeterred, Agustin now raises a new challenge to Count Two and moves for "an in camera inspection of the grand jury minutes to determine what specific evidence was presented concerning the possession of a firearm charged in Count Two of the Indictment," and what "legal instructions" were "provided to the grand jurors concerning Count Two's `aiding and abetting' theory." Def.'s Mot. GJ Inspection at 1.
In evaluating this motion, the charge itself and the government's proffered evidence are first reviewed, before turning to analysis of whether either of Agustin's arguments warrant inspection of the grand jury minutes. Count Two charges, in relevant part, that the defendant, "[f]rom in or about July 2010, and continuing thereafter, up to and including May 2012, ... did knowingly and intentionally use, carry, and brandish a firearm, during and in relation to one or more drug trafficking crimes, to wit: the crimes charged in Count One, and... possess a firearm in furtherance of such drug trafficking crimes." Agustin's
With respect to the first proffered basis for inspection of the grand jury minutes, Agustin denies that he is challenging "the sufficiency of the evidence presented to the grand jury," Def.'s Mot. GJ Inspection at 5; see Def.'s Reply Supp. Mot. In Camera Inspection of Grand Jury Minutes ("Def.'s Reply Mot. GJ Inspection") at 1, ECF No. 132, but requests only that the Court inspect "
At the outset, the government's response lacks any specific assurances about the evidence presented to the grand jury to support Count Two. Id. at 1 (noting that "Government has [not] even offered an informal `proffer' as to the evidentiary predicate for Count Two presented to the grand jury"). Nevertheless, as Agustin concedes, the government had cooperating witnesses' testimony available in some form to present to the grand jury, and such evidence would be sufficient to support Count Two. Thus, despite his denial that he is challenging the sufficiency of the grand jury evidence, Agustin's request for in camera review of grand jury minutes to ascertain what evidence was presented to support the grand jury's finding of probable cause to believe the defendant committed the firearms offense charged, amounts to the same thing. Yet, the law is well-established that challenges to the sufficiency of the evidence presented to the grand jury are not permitted. See, e.g., United States v. Williams, 504 U.S. 36, 54-66, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) ("[I]t would run counter to the whole history of the grand jury institution' to permit an indictment to be challenged `on the ground
This law reflects "a long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts," United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), and "a presumption of regularity," with respect to grand jury proceedings, "which generally may be dispelled only upon particularized proof of irregularities in the grand jury process," United States v. Mechanik, 475 U.S. 66, 75, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). Under Federal Rules of Criminal Procedure 6(e), grand jury materials are subject to disclosure when the defendant succeeds in carrying the heavy burden of showing "that a particularized need exists" that "outweighs the policy of secrecy." Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959) (internal quotation marks omitted); see also id. at 399, 79 S.Ct. 1237 ("Petitioners concede, as they must, that any disclosure of grand jury minutes is covered by [FED. R. CRIM. P. 6(e)].") The Supreme Court has found this burden met where "the Government concedes that the importance of preserving the secrecy of the grand jury minutes is minimal and also admits the persuasiveness of the arguments advanced in favor of disclosure." Dennis v. United States, 384 U.S. 855, 871-72, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); see also De Binder v. United States, 292 F.2d 737, 739 (D.C. Cir. 1961) (determining that defendant met burden for inspection of grand jury minutes where "ample ground" existed for "suspicion" of "inconsistencies" between grand jury and trial testimony of prosecution's "sole, key, eyewitness").
By contrast, where a defendant fails to provide a discrete reason, and instead relies on speculation or unsupported assumptions, courts have made clear that disclosure of grand jury minutes is not warranted. See, e.g., Procter & Gamble, 356 U.S. at 682-83, 78 S.Ct. 983 (noting that defendants' showings "fall short of proof that without the [grand jury] transcript a defense would be greatly prejudiced or that without reference to it an injustice would be done," and thus the case was not one of those "cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly"); Jackson v. United States, 297 F.2d 195, 197-98 (D.C. Cir. 1961) (explaining, after finding "not the slightest evidence of inconsistency" between witness's trial and grand jury testimony, that "[i]f defendant's position is correct ... defense counsel in every case [might] be allowed to go upon a fishing expedition in the hope of developing something favorable to the defense"); United States v. Borda, 905 F.Supp.2d 201, 205 (D.D.C. 2012) (finding defendants did not demonstrate particular need for inspection of grand jury minutes where their assertions about misleading evidence were "completely speculative" and relied on a "tenuous" connection between an affidavit and testimony presented to the grand jury); United States v. Hernandez, No. CR-14-0120 EMC, 2015 WL 4498084 at *8, 2015 U.S. Dist. LEXIS 96402 at *29 (N.D. Cal. July 23, 2015) (finding, where "[i]ndictment is sufficiently factually specific," defendants have "no particularized need... to obtain the grand jury transcripts so that they can `confirm' that the grand jury did not pass on the factual allegations the Government intends to prove at trial").
In this case, Agustin contends that the grand jury minutes should be inspected to guard against any constructive amendment of the indictment stemming from variance between the evidence considered by the grand jury and the anticipated proof at trial. He speculates about "what evidence was presented to the grand jury" to raise "a very real possibility" that "constructive amendment of the Indictment" may occur. Def.'s Reply Mot. GJ Inspection at 1-2. While constructive amendment of an indictment violates the Fifth Amendment's presentment clause where substantial "variance" exists between the "charging terms of the indictment left unaltered" and "evidence offered at trial prov[ing] facts materially different from those alleged in the indictment," Gaither v. United States, 413 F.2d 1061, 1071 (D.C. Cir. 1969); see also Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) ("[T]he basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for [an offense] which the grand jury did not charge."), Agustin has not presented any sufficient reason, let alone a particularized need, to overcome the presumption against disclosure of the grand jury materials.
Even if Agustin is correct that all of the evidence regarding the firearms charge that the government intends to introduce at trial was not presented to the grand jury, this does not amount to an improper variance of proof or demonstrate a particularized need for inspection of the evidence presented to the grand jury. As long as the defendant is on notice of the charges against him and the trial evidence does not alter "an essential element of the charge," the law permits some variance in proof between the grand jury and at trial. United States v. Hitt, 249 F.3d 1010, 1028 (D.C. Cir. 2001) (permitting "flexibility in proof" at trial, where "the defendant was given notice of the core of criminality to be proven at trial." (quoting Berger, 224 F.3d 107, 117 (2d Cir. 2000)); see United States v. Sitzmann, 74 F.Supp.3d 96, 122 (D.D.C. 2014) ("[W]here `a generally framed indictment encompasses the specific legal theory or evidence used at trial, there is no constructive amendment.'") (quoting United States v. Rigas, 490 F.3d 208, 228 (2d Cr. 2007)); accord United States v. Dowdell, 595 F.3d 50, 68 (1st Cir. 2010) (explaining that, given notice of charge given to defendant, any "variance" in proof "would have been a harmless one" and not in violation of the Fifth Amendment); United States v. Wiley, 29 F.3d 345, 352 (8th Cir. 1994) (finding where defendant "was on notice before trial that the government intended to present" certain evidence, "any variance did not affect his substantial rights or cause actual prejudice"). For instance, "[t]here is no constructive amendment when a court `admit[s] evidence of other criminal conduct that is inextricably intertwined with the charged offense or that completes the story of the charged offense.'" McClurge v. United States, No. 04 C 3628, 2004 WL 2870072 at *3, 2004 U.S. Dist. LEXIS 25108 at *10 (N.D. Ill. Dec. 13, 2004) (alteration in original) (quoting United States v. King, 126 F.3d 987, 995 (7th Cir. 1997)). Thus, to the extent Agustin is concerned that the government will present at trial other crimes or intrinsic
Given the adequate notice of the firearms charge afforded to the defendants, see Apodaca II, 275 F.Supp.3d at 155, 2017 WL 3575655 at *20, 2017 U.S. Dist. LEXIS 131617 at *66, and Agustin's failure to provide any actual "particularized need" for disclosure of grand jury materials, especially in light of his concession that cooperating witnesses may provide sufficient support for the charge against him, the first basis of his motion for inspection of grand jury minutes fails.
The second basis for Agustin's motion for in camera inspection of the grand jury minutes is to check whether the grand jury was properly instructed on the law regarding aiding and abetting liability. In this regard, Agustin is correct that criminal liability for aiding and abetting a violation of 18 U.S.C. § 924(c) requires that the defendant has "actual knowledge" of the use of a firearm by the principal. See Rosemond v. United States, ___ U.S. ___, 134 S.Ct. 1240, 1243, 188 L.Ed.2d 248 (2014) ("We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission."); United States v. Slatten, 865 F.3d 767, 793 (D.C. Cir. 2017) (citing Rosemond, and finding "sufficient evidence to support [] convictions under an aiding-and-abetting theory" where defendant at issue "actively participated in a gunbattle in which" victims were killed and "the gunfire of each shooter hindered potential escape, leaving victims exposed to the others' bullets"); United States v. Powell, 929 F.2d 724, 729 (D.C. Cir. 1991) (requiring proof that aider and abettor "knew to a practical certainty that his drug-peddling associates would be carrying a gun in connection with their joint venture"); United States v. García-Ortiz, 792 F.3d 184, 189-90 (1st Cir. 2015) (stating "requirement that an aider and abettor of a § 924(c) crime have advance knowledge of the principal's intent to use a weapon"). Citing a single paragraph in the prosecutor's extradition request, which Agustin claims provides an "incomplete statement of the law" applicable to aiding and abetting, he contends this provides "good reason to believe that any instructions [to the grand jury] were incomplete." Def.'s Mot. GJ Inspection at 7-8.
With this argument, Agustin again fails to meet his burden for demonstrating a "particularized need" to overcome the presumption of secrecy and regularity that materials from grand jury proceedings enjoy. See Procter & Gamble, 356 U.S. at 683, 78 S.Ct. 983; Pittsburgh Plate Glass, 360 U.S. at 400, 79 S.Ct. 1237. His argument essentially relies on what is missing in the extradition request, which, as the government points out, is governed by treaty and does not require "a complete set of jury instructions." Gov't's' Opp'n Def.'s Mot. GJ Inspection at 7-8. Moreover, as discussed above, the indictment has already been deemed facially valid, which undermines Agustin's theory that the grand jury instructions may have been incomplete. See United States v. Espy, 23 F.Supp.2d 1, 10 (D.D.C. 1998) (denying motion for disclosure of grand jury materials where "facially valid indictment undermines any `particularized need' the alleged grand jury instructions demonstrate for disclosure of the grand jury transcripts"); see also United States v. Singhal, 876 F.Supp.2d 82, 99 (D.D.C. 2012) (rejecting disclosure of grand jury materials where
For these reasons, Agustin has failed to show any "particularized need" for inspection of the instructions to the grand jury about Count Two, and his attempt to relitigate his earlier challenge to this charge in the indictment must be rejected. Accordingly, Agustin's motion for an in camera review of the grand jury minutes is
For the foregoing reasons, the following motions are
An Order consistent with this Memorandum Opinion will issue contemporaneously.
