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In re Interception of Oral Communications of Steven

United States District Court, D. Kansas

March 17, 2017

IN THE MATTER OF THE INTERCEPTION OF ORAL COMMUNICATIONS OF BRANDON STEVEN AND MICHAEL O'DONNELL

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         Sometime between May 14, 2015, and July 1, 2015, several Wichita Eagle employees, as well as an employee of the McClatchy Company, [1] spoke on the phone with either Brandon Steven-a prominent Wichita businessman-or Michael O'Donnell-a Wichita politician. On February 1, 2017, the Wichita Eagle and its employees (“the Movants”) each received a letter from the United States Department of Justice, informing them that those phone calls had been intercepted pursuant to an investigation involving wiretaps on Steven and O'Donnell's phones. The Movants now move the Court for an order to disclose both the content of their intercepted communications in addition to the application for and order granting the wiretaps (Doc. 1). For the reasons stated below, that motion is denied.

         I. Factual and Procedural Background

         On May 14, 2015, this Court authorized the interception of telephone communications of Brandon Steven, a prominent Wichita businessman. On June 2, 2015, this Court authorized the interception of telephone communications of Michael O'Donnell, who at that time was a Kansas State Senator and is currently a Sedgwick County Commissioner. The wiretaps were authorized under Title III of the Omnibus Crime Control and Safe Streets Act (“Title III”).[2] Accordingly, from May 14, 2015, through June 13, 2015, the Government intercepted Steven's phone calls. During that period, Steven spoke on the phone with Carolyn Rengers of the Wichita Eagle. And from June 3, 2015, through July 1, 2015, the Government intercepted O'Donnell's phone calls. During that period, O'Donnell spoke on the phone with Sherry Chisenhall, Bryan Lowry, and Dion Lefler, all of the Wichita Eagle. O'Donnell also spoke on the phone with Lindsay Wise of The McClatchy Company.

         On February 1, 2017, the Wichita Eagle, Rengers, Chisenhall, Lowry, Lefler, and Wise each received a letter from the United States Department of Justice, informing them that those phone calls had been intercepted pursuant to the wiretaps on Steven and O'Donnell's phones. The headings noted that the letters regarded the phone number of either Brandon Steven or Michael O'Donnell (depending on which call the letter corresponded to). The body of the letter read, in full:

To Interceptee:
This is to inform you pursuant to Title 18, United States Code, § 2518(8)(d) that you were either named in an order and/or application made in the District of Kansas authorizing the interception of wire, oral and/or electronic communications or were a party to an intercepted communication.
For the above number, communications were intercepted between [May 14 or June 3], 2015, and [June 13 or July 1], 2015.
This notice does not mean that you are being charged in court with anything. This is simply a notice which the law requires we send to you. It only means that you, or someone using a telephone subscribed to you, were intercepted talking with a person using the telephone number listed above.

         Please do not call this office, as we are unable to give out any further information. The Government's investigation that gave rise to the wiretaps is still ongoing. No indictments have been filed. Nobody, including any of the Movants, has been charged with a crime. And there is no evidence from which the Movants would reasonably believe that they are targets of the investigation or will likely face any charges.

         The Movants now move that the Court disclose to them documentation of their intercepted phone calls as well as the application for and order granting the interceptions. The Government, as an interested party, filed a response in opposition to the Movants' motion.

         II. Analysis

         A. Status of the Movants

         Before considering the Movants' substantive arguments, the Court must clarify their status as it relates to the interception of Steven's and O'Donnell's communications.

         The Movants received notice that their calls had been intercepted under 18 U.S.C. § 2518(8)(d), which provides in relevant part:

Within a reasonable time but not later than ninety days after . . . the termination of the period of an order [allowing the interception of communications] or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory . . . .

That subsection further provides that upon the filing of a motion, the Court

[M]ay in his discretion make available to such person [who had been provided an inventory] or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice.

Under the plain reading of the statute, then, an inventory must be sent to those named in the order or application related to intercepted phone calls. In other words, the targets of the wiretaps must be notified. But under the statute, for non-targets whose communications were incidentally intercepted, notification is only required “as the judge may determine in his discretion that is in the interest of justice.” The Movants pointed out that, given this statutory framework, they are more than inconsequential interceptees because they received notice under § 2518(8)(d). Obviously, the Movants contend, their conversations are significant to the Government's investigation because a judge determined that it was in the interest of justice that they be served an inventory.

         The Movants' understanding of the situation is based entirely on the plain language of § 2518(8)(d), and their deduction is logically sound. If the statute were followed verbatim, then the Movants would only receive notice if they were targets of the investigation, or if a judge had determined they must be notified in the interest of justice. But at the hearing on the Movants' motion, the Government revealed that in practice, it does more than the statute requires. Rather than only notifying those required by § 2518(8)(d), the Government's practice is to send notice to every single individual whose calls have been intercepted. As the Government stated

The registered or identified subscriber to that number [of any interceptee] is given an inventory notice, despite their status, despite the length of the interception, despite whether it's privileged, non-privileged, pertinent, ...

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