United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
This matter is before the court on defendant Rito Vasquez-Garcia's sixteen motions in limine. Defendant appeared in person and through counsel at a hearing on November 24, 2014. The court will address the motions in turn.
Defendant is charged with one count of conspiracy to possess methamphetamine with intent to distribute in violation of 21 U.S.C. § 846, and seven counts of using a communication device in facilitating that conspiracy in violation of 21 U.S.C. § 843(b). A total of thirty defendants were indicted in connection with this conspiracy.
Law enforcement investigated the activity of this drug trafficking conspiracy from June 2008 to April 2009. According to the government, the investigation revealed the following. Pascual Vasquez-Villa was transporting and distributing large quantities of methamphetamine for defendant. The primary source of methamphetamine was located in Phoenix, Arizona. Simultaneously, Adan Molina was transporting and distributing large quantities of methamphetamine from the same source in Phoenix. According to the government, Molina worked for defendant in the same conspiracy until June 2006, when Molina branched out into his own trafficking operation. Defendant denies involvement in this conspiracy.
Two cellular phones, Target Phone 11 and Target Phone 13, played an important role in this investigation. They were the subject of wiretap orders issued by the court. DEA agents at a listening post in St. Louis, Missouri, monitored Phone 11 from March 19, 2009, to April 17, 2009, and Phone 13 from May 1, 2009, to May 11, 2009. The phones were allegedly used by Vazquez-Villa and defendant during trips to the supplier in Phoenix.
On June 19, 2009, the investigation was "taken down" with search warrants, one of which was executed at defendant's Great Bend residence. Defendant was not home at the time, but was in Mexico with family. Agents recovered four firearms from the residence, but no drugs or currency.
A grand jury returned an eight-count Indictment as to defendant on February 10, 2010 (Dkt. 1). He remained in Mexico until July 2012, and was arrested in the Western District of Texas on July 25, 2012. (Dkt. 5). On separate but related indictments, Vazquez-Villa was convicted at trial and Molina pled guilty.
II. Legal Standard
The motion in limine provides a trial court the opportunity "to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." United States v. Cline , 188 F.Supp.2d 1287, 1291 (D. Kan. 2002) (quoting Palmieri v. Defaria , 88 F.3d 136, 141 (2d Cir. 1996)). The power to make evidentiary rulings in limine is not expressly provided by statute or rule; it stems from the court's authority to administer and try cases. Luce v. United States , 469 U.S. 38, 41 n.4 (1984); see FED. R. EVID. 103(d), 104(c), 402, 403, 611(a). Such rulings may increase judicial efficiency, but many evidentiary rulings "should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in the proper context." Mendelsohn v. Sprint/United Mgmt. Co. , 587 F.Supp.2d 1201, 1208 (D. Kan. 2008) (citing Sperberg v. Goodyear Tire & Rubber Co. , 519 F.2d 708, 712 (6th Cir. 1975)). An in limine evidentiary ruling is subject to change, at the court's discretion, "when the case unfolds" in trial. Luce , 469 U.S. at 41-42.
1. Defendant's Motion to Suppress Intercepted Conversations and Evidence Obtained Therefrom (Dkt. 118)
Defendant challenges the admissibility of cell phone conversations intercepted from Phones 11 and 13 while they were outside the District of Kansas. (Dkt. 118). The court issued a wiretap warrant for each phone while the phone was in Kansas. (Dkt. 118-1). DEA agents monitored the phones from a listening post in St. Louis. Defendant argues that material intercepted while both the phones and the listening post were outside the District exceeds the jurisdictional scope of the warrants and should be suppressed pursuant to 18 U.S.C. § 2518(10), along with any evidence derived therefrom. The court disagrees.
Investigative wiretaps are governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2516 et seq . Upon application and finding a statutory cause for the wiretap, a court
may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction).
18 U.S.C. § 2518(3). The Tenth Circuit has clarified that a communication is intercepted, for the purposes of § 2518(3), either "where the tapped telephone is located" or "where the contents of the redirected communication are to first be heard." United States v. Tavarez , 40 F.3d 1136, 1138 (10th Cir. 1994). Here, the communications were all heard in St. Louis, Missouri. At issue here is whether a wiretap issued on a mobile phone qualifies as a "mobile interception device" under § 2518(3).
The Tenth Circuit has not addressed the meaning of "mobile interception device" in this context, but the Seventh Circuit has. In United States v. Ramirez , 112 F.3d 849 (7th Cir. 1997), a Western District of Wisconsin judge ordered a wiretap on a cell phone associated with an alleged drug conspiracy in that district. The phone was owned by an individual under investigation in the district. The phone was located in the district at the time the order was issued. The owner then gave the phone to another person who took it to Minnesota and used it in connection with the same conspiracy. The listening post was also in Minnesota, outside the issuing district. The court found it irrelevant where the phone ended up, because it was in the district at the time a valid warrant was issued and the warrant did not limit the geographic scope of the surveillance.
As in this case, the issue in Ramierz turned on the interpretation of "mobile interception device" in the § 2518(3) parenthetical. The court found that a literal reading of § 2518(3) makes very little sense in the context of cell phone surveillance. Id. at 852. The court referenced the legislative history of Title III and determined that a "mobile interception device" applies "to both a listening device installed in a vehicle and to a tap placed on a cellular or other telephone instrument installed in a vehicle." Id. at 852 (quotation omitted). The court went on to conclude that "[t]he emphasis in mobile interception device' falls, it seems to us (there are no other published decisions on the point), on the mobility of what is intercepted rather than on the irrelevant mobility or stationarity of the device." Id. at 853. The Ramirez court concluded that the order issued in the Western District of Wisconsin was valid for the calls made while the phone and listening post were outside the district because § 2518(3) allows the surveillance to be conducted anywhere in the United States when the interception of a cell phone is authorized while the cell phone is in the district of the court issuing the wiretap warrant.
Here, defendant relies on a special concurring opinion in United States v. North , 735 F.3d 212, 218-19 (5th Cir. 2013) (DeMoss, J., concurring), to support the proposition that "mobile interception device" means the device intercepting the communication, and thus does not permit tapping a cell phone when it leaves the court's jurisdiction.
The court finds the reasoning of the Seventh Circuit in Ramirez to be sound. The parenthetical in § 2518(3) was added in 1986, while cell phone technology was in its infancy. The underlying principles of physical surveillance, more common at that time, are instructive in corroborating the court's view.
The D.C. Circuit addressed a physical listening device under § 2518(3) in United States v. Glover , 736 F.3d 509 (D.C. Cir. 2013). The Glover court evaluated the installation of a physical listening device on a vehicle located outside the court's district at the time of installation. The wiretap warrant was found facially invalid because it authorized placement of the device while the vehicle was outside the court's jurisdiction. The court noted that any such device cannot be properly authorized unless the property on which it is to be installed is located inside the authorizing court's jurisdiction at the time of authorization. Glover , 736 F.3d at 514. The court further noted that, according to a Senate Judiciary Committee report, the purpose of the statute's parenthetical is to "ensure that warrants remain effective in the event a target vehicle is moved out of the issuing judge's jurisdiction after a warrant is issued, but before a surveillance device can be placed in the vehicle." Id. (emphasis in original) (citing S. Rep. No. 99-541, at 106(a) (1986)). The Glover court reinforced its interpretation of the statute by noting that FED. R. CRIM. P. 41, which partially implements the statute, allows a magistrate to issue a warrant for a person or property outside the district if the person or property is located within the district at the time of issuance, but might move out of the district before the warrant is executed. FED. R. CRIM. P. 41(b)(2).
Ramirez illustrates the proper application of § 2518(3) to mobile communication technology. The court recently adopted the Ramirez view of "mobile interception devices" in United States v. Dahda , 2014 WL 1493120 (D. Kan. Apr. 2, 2014). In Dahda , the defendant challenged the validity of nine wiretap orders as facially invalid because they did not specify that a listening post must be maintained in the District of Kansas if and when the target phones left the District. As in this case, the defendant in Dahda argued the North concurrence, asserting that the statute allows interception anywhere in the country only where the listening device itself is mobile. In Dahda , the court analyzed § 2518 as the Ramirez court did, concluding that the mobility of the listening device was irrelevant when the phones being intercepted were mobile. The parenthetical of § 2518(3) extends the jurisdictional scope of the order to anywhere in the United States that mobile phones may travel if they were in the district at the time the order is issued, regardless of the listening post location. In Dahda , the mobile phones were in the District at the time the orders were issued, and conversations intercepted while the phones were outside the District were within the jurisdictional limitations of the order.
The same is true here. The wiretaps on Target Phones 11 and 13 were issued while the phones were in the District. Therefore, conversations intercepted while the phones were outside the District do not violate the statute and are admissible. Defendant's Motion (Dkt. 118) is DENIED.
2. Defendant's Motion to Suppress Conversations Pursuant to an Arizona Wiretap and Evidence Derived Therefrom (Dkt. 125)
Arizona authorities conducted a wiretap on another phone, Target Phone 2, intercepting calls involving defendant. As with Target Phones 11 and 13, agents intercepted calls from Phone 2 while it was outside Arizona. Defendant argues that interceptions made while the phone was not in Arizona should be suppressed. Defendant's argument is identical to that in Dkt. 118. For the same reasons described in the court's ruling on Dkt. 118, defendant's Motion (Dkt. 125) is DENIED.
3. Defendant's Motion to Suppress Intercepted Conversations Where Related Documentation Was Unlawfully Unsealed (Dkt. 123)
In April and May 2009, the court issued orders granting the wiretaps on Target Phones 11 and 13. A grand jury returned indictments on thirty defendants in this conspiracy between April 2009, and June 18, 2009. Defendant's residence was searched pursuant to a warrant on June 17, 2009. On June 26, 2009, about a week after most of the arrests in this investigation, the court granted the government's motions to unseal the "wiretaps, extensions thereof, and all related documentation" for Target Phones 11 and 13. (Dkt. 123, at 1) (citing Case No. 09-50008-RDR (Dkts. 123-1; 123-2)). The orders did not state the reasons for granting the motions to unseal. Defendant argues that the unsealing violated Title III and that the recordings and their derivatives should be suppressed. The government concentrates its argument on the unsealing of the wiretap application or order, governed by 18 U.S.C. § 2518(8)(b), but the unsealing in question here is that of the actual recordings and all extensions thereof (Dkt. 123-2), which are governed by 18 U.S.C. § 2518(8)(a).
An "aggrieved person" may move for suppression of intercepted communications in violation of Title III. 18 U.S.C. § 2518(10). An "aggrieved person" is one "who was a party to an intercepted... communication or a person against whom the interception was directed." 18 U.S.C. § 2518(11). Section 2518 governs procedure for Title III communication interceptions, including the sealing of wiretap recordings.
Wiretap recordings must be authorized by a proper order, made available to the issuing judge immediately upon the expiration of the time period specified in the order, then sealed under the judge's direction. 18 U.S.C. § 2518(8)(a). "The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of any wire, oral, or electronic communication evidence derived therefrom under subsection (3) of section 2517." 18 U.S.C. § 2518(8)(a). Section 2517(3) allows disclosure of wiretap information through "testimony under oath or affirmation at a proceeding held under the authority of the United States...." Section 2517(3) is the only provision in the chapter describing how wiretap information is to be disclosed to the public forum. Thus, a court may not unseal wiretap communications, placing them in the public record, without a satisfactory explanation. See 18 U.S.C. § 2518(8)(a). Unsealing for discovery purposes, such as making copies for defendants, or for use in trial is a satisfactory explanation. See id. However, "once the trial level proceedings to which the unsealing order pertained have concluded, the tapes should be resealed in order to preserve their integrity should their admission be sought in another trial - either in another case or in a retrial of the same case after appeal." United States v. Scopo , 861 F.2d 339, 347 (2d Cir. 1988).
Violation of any § 2518 provision that plays a central role in the statutory scheme of Title III requires suppression of the wiretap evidence. United States v. Giordano , 416 U.S. 505, 524-28 (1974) ("the critical inquiry is whether there has been a failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.'"). Section 2518(10)(a) extends its suppression mandate beyond constitutional violations, which are themselves included in § 2518(10)(a)(i), to include violations of the statute itself in (ii) and (iii). Id. Suppression for violation of § 2518 does not require prejudice to the aggrieved party. Id. The sealing requirements of Title III are central to the statute's purposes of protecting individual liberty interests and preserving evidence. See United States v. Cline , 349 F.3d 1276, 1284 (10th Cir. 2003).
Here, the recordings from Target Phones 11 and 13 were unsealed for use in the Vazquez-Villa trial on June 26, 2009. United States v. Cellular Telephone , No. 09-50008, Dkt. 10 (D. Kan. June 26, 2009); United States v. Cellular Telephone , No. 09-50016, Dkt. 5 (D. Kan. June 26, 2009). The government contends that the unsealing was necessary to facilitate discovery in all related cases. "Because there was no other way for the government to reasonably comply with all of the discovery orders of the court as to each of the thirty defendants indicted as a result of this investigation, good cause' existed for the unsealings of Target Phones 11 and 13." (Dkt. 146, at 10). The facilitation of discovery or use in a trial is a satisfactory explanation for unsealing the recordings.
However, it is still unclear whether the original disks were resealed after use in the Vazquez-Villa trial. The presence of the seal on the original disks is prerequisite to admissibility of their contents in this trial. If the disks have remained unsealed, then § 2518(8) is violated and the evidence will be suppressed. However, a ruling suppressing the evidence on such basis at this time is premature because the disks have not yet proved to be unsealed. The court defers its ruling until trial.
Defendant's Motion (Dkt. 123) is therefore DENIED.
4. Amended Motion to Suppress Intercepted Conversations, and Evidence Derived Therefrom, Because the Recordings Were Not Immediately Sealed (Dkt. 134)
This motion replaces Dkt. 124 and also concerns the sealing of the disk for Target Phones 11 and 13. Defendant claims that sealing delays violate Title III's "immediate" sealing requirement and that any evidence on or derived from the recordings should be suppressed.
Target Phone 11 was sealed by the court on April 23, 2009, six days after the authorizing order expired on April 17, 2009. The government explains the chain of custody of Target Phone 11, showing that it was sealed by the DEA on April 21, sent to the DEA Topeka Post of Duty where it was received on April 22, and delivered to and sealed by the court on April 23.
The authorizing order for Target Phone 13 was effective until May 30, 2009. Monitoring of Target Phone 13 terminated on May 11, 2009, the data disk was packaged and shipped on May 27, 2009, to the DEA Topeka Post of Duty, where it was received on May 28, 2009, and delivered to and sealed by the court on the same day.
Wiretap recordings must be sealed by the court immediately following the expiration of the underlying order. 18 U.S.C. § 2518(8)(a). The immediate sealing requirement may also be met if the government provides a "satisfactory explanation" for any delay in sealing. Id. The satisfactory explanation prong "requires that the Government explain not only why a delay occurred but also why it is excusable." United States v. Ojeda Rios , 495 U.S. 257, 265 (1990). A "satisfactory explanation" may include the unavailability of the issuing judge, intervening weekends and holidays, or a need to prepare paperwork. Cline , 349 F.3d at ...