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United States v. Portillo-Uranga

United States District Court, D. Kansas

October 25, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JORGE PORTILLO-URANGA, ET AL., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendant Jorge Portillo-Uranga's Amended Motion to Suppress (Doc. 268) (Defendants' “Motion”).[1] The Court held a hearing on October 9, 2019 at which time two case agents testified. The parties admitted exhibits into evidence at the start of the hearing.[2] Co-defendant Martin Castaneda-Ontiveros orally moved to join Portillo's Motion, and the Court granted that request.[3] In their Motion, Defendants contend that the Government obtained wiretaps in violation of 18 U.S.C. §§ 2510, 2518; the Fourth Amendment; the Fifth Amendment; and Rules 12 and 41 of the Federal Rules of Criminal Procedure. The Motion is fully briefed, [4] and the Court is prepared to rule. For the reasons stated below, the Motion to Suppress (Doc. 221) is denied as moot, and the Amended Motion to Suppress (Doc. 268) is denied.

         I. Background

         As part of an investigation into a drug-trafficking organization, Drug Enforcement Administration (“DEA”) agents obtained authorization to intercept wire and/or electronic communications of multiple cellular phones pursuant to orders signed in the District of Kansas. In total, thirty-two phones were subject to wiretaps. Phase I of the investigation focused on “Target Telephones 1-12, ” (“TTs” 1-12) and Phase II of the investigation focused on “Target Telephones 13-32” (“TTs” 13-32). Defendants seek “to suppress evidence obtained pursuant to a wiretap interception of wire communications for Target Telephones 1 through 32[.]”[5]

         II. Standing

         As a threshold matter, the Court addresses the standing of each Defendant to seek suppression. Defendant Portillo argues that he has standing to move for suppression of evidence obtained from all 32 TTs because he is an “aggrieved person” as defined by 18 U.S.C. §§ 2510(11), 2518(10)(a). Defendant Castaneda joined Portillo's Motion in full. The Government argues that Castaneda only has standing as to TTs 22-32.

         To establish standing to challenge the validity of a wiretap application, a defendant must demonstrate that he is an “aggrieved person, ”[6] which is defined as “a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.”[7] To meet this definition, a defendant must generally show that “(1) he was a party to the communication, (2) the wiretap efforts were directed at him, or (3) the interception took place on his premises.”[8]

         Here, the Government does not dispute that Portillo has standing to challenge the validity of wiretaps for all 32 TTs. The Government concedes that, although the Phase I wiretaps were not directed at Portillo's devices, the wiretaps were directed at him. The Government also agrees that Phase II targeted Portillo's devices. After reviewing the pertinent affidavits and wiretap authorizations, the Court finds that Portillo has standing to seek suppression of evidence obtained from wiretaps on all 32 TTs.

         The Government argues that Castaneda only has standing regarding TTs 22-32. Regarding the Phase I wiretaps, the Court finds that Castaneda was not intercepted in any conversation. The Court further finds that Castaneda was not a target subject of the Phase I wiretaps, nor did those wiretaps target any of his devices. Moreover, the affidavits for TTs 13- 21 do not list Castaneda as a target subject, nor are any of the targeted devices his. Castaneda was also not intercepted on any of these devices. Castaneda was, however, intercepted on TTs 22-28. Castaneda was listed as a target subject in the affidavits authorizing wiretaps for TTs 26- 32. Accordingly, Castaneda only has standing to seek suppression of evidence obtained from wiretaps of TTs 22-32.

         III. Discussion

         Defendants argue that the evidence should be suppressed for the following reasons: (1) the tapes of recorded conversations were not timely sealed, (2) minimization was insufficient, (3) the Government has not provided records to show that interception of the telephone calls took place within the territorial jurisdiction of the Court, (4) the authorization orders were deficient because of a lack of necessity, [9] and (5) Defendants were not timely notified of the wiretaps as required by 18 U.S.C. § 2518(8)(d). The Court will discuss Defendants' arguments in turn.

         A. Sealing

         Defendants argue that the discs containing the intercepted conversations were not sealed in the manner required by 18 U.S.C. § 2518(8)(a) and should therefore be suppressed. Section 2518(8)(a) provides that “[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.”[10] The Supreme Court has established two ways that this requirement may be satisfied: either the recording must have been properly placed under seal, or the Government must provide a satisfactory explanation for its failure to comply with the sealing requirement.[11] The Government must explain both a total absence of any seal, and the lack of a “timely applied” seal.[12] “A satisfactory explanation is one that is ‘objectively reasonable.'”[13]This means that the Government must “explain not only why a delay occurred but also why it is excusable.”[14]

         Defendants contend that the Government failed to immediately seal the wiretap discs following the end of the period of interception. Defendants provide a chart to the Court that measures the number of days between the final intercepted communication on a given TT and the date on which the recordings were sealed.[15] This chart, however, does not use the correct measure for determining the length of delay. As the plain language of § 2518(8)(a) indicates, the sealing requirement is triggered by the expiration of the order authorizing the wiretap.[16] Accordingly, there was no delay in sealing the recordings for TTs 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 26, 28, 29, 30, 31, and 32 because these recordings were sealed prior to the expiration of their respective authorization periods. The Court will address the proffered reasons for the delay in sealing of each remaining TT.

         1. Thursday or Friday Authorization Expirations Followed by Tuesday Sealing

         Defendants argue that any delay in sealing discs of more than two days violates the “immediacy” requirement of § 2518, thereby warranting suppression of those discs absent a satisfactory explanation from the Government. Many of the “delays” in sealing occurred because the authorization order expired on a Thursday or Friday, and the tapes were not sealed until the following Tuesday.

         As the Government's Response explains, and as both DEA Case Agents Nick Wills and Derrick Maguire testified, discs of wiretap recordings for the Overland Park, Kansas DEA Office (the “Overland Park Office”) are all processed through the DEA St. Louis Field Division Office (the “St. Louis Office”). The Government further explains that once the authorization period expires-or sooner, in some instances-case agents will contact the St. Louis Office and instruct them to burn the recordings onto Blu-Ray discs. The discs are then mailed, via FedEx Overnight, to the Overland Park Office. Agents Wills and Maguire both testified that if an order expires on a Thursday or Friday, agents wait until the following Monday-or Tuesday, in the event of a holiday weekend-to request the Blu-Ray discs be burned. In the event of Thursday expirations, the agents explained that if the disc is burned and mailed on Friday, it would arrive to the Overland Park Office on Saturday morning, when agents are not typically stationed at the Overland Park Office. In the event of a Friday or Saturday authorization expiration, the St. Louis Office will not be staffed to burn the disc and mail it out.

         The authorization period for TTs 1FE, [17] 2, 3, and 4 expired on Thursday, July 24, 2014 at 11:59 p.m. Sealing took place for each of these TTs on Tuesday, July 29, 2014. The agents requested the discs be burned and mailed the following Monday, which was July 28, 2014. The discs arrived at the Overland Park Office on Tuesday, July 29, 2014 and were sealed later that same day.

         The authorization period for TT 5 ended on Saturday, August 2, 2014. As with TTs 1FE-4, agents requested the Blu-Ray discs of TT 5 intercepts be burned the following Monday, which was August 4, 2014. The discs for TT 5 were received at the Overland Park Office on the following day, which was Tuesday, August 5. Those discs were sealed later that same day.

         The authorization period for TT 21 expired on Friday, May 5, 2017. Agents in Overland Park requested the Blu-Ray discs for intercepts from TT 21 be created and mailed on Monday, May 8, 2017. The discs were then mailed via FedEx overnight, and arrived at the Overland Park Office on Tuesday, May 9. The discs for TT 21 were sealed later that same day.

         The authorization period for TT 27 expired Friday, July 28, 2017. Agents in Overland Park requested the Blu-Ray discs of intercepts from TT 27 be created and mailed on Monday, July 31, 2017. The discs were created on July 31 and mailed via FedEx overnight. The discs arrived at the Overland Park Office on Tuesday, August 1, 2017 and were sealed later that day.

         The authorization orders for intercepts of TTs 1FE, 2, 3, 4, 5, 21, and 27 all expired on either a Thursday or Friday; and the discs of those intercepts were sealed on Tuesday of the following week. In light of the information provided by the Government regarding the process for creating, mailing, receiving, and sealing the discs, the Government has met its burden to satisfactorily explain its reasons for such delays.[18]

         2. Judicial Scheduling Issues

         The Government also responds to some of Defendants' challenges by noting that judicial scheduling issues caused some of the delays. The authorization period for TT 7 expired on Tuesday, March 31, 2015. The following day, agents in the St. Louis Office created the Blu-Ray discs and mailed them to the Overland Park Office. Agents in the Overland Park Office received the tapes on Thursday, April 1, 2015. During the October 9, 2019 Hearing, Agent Wills testified that Judge Crabtree-the authorizing judge for the wiretap on TT 7-had scheduling conflicts related to sealing TT 7 discs. Ultimately, to avoid further delay in sealing, Judge Lungstrum signed the sealing order on April 6, 2015.

         The authorization period to TT 7FE expired on Saturday, May 2, 2015. On Monday, May 4, 2015, the St. Louis Office created Blu-Ray discs of the interceptions and mailed those discs to the Overland Park Office via FedEx Overnight. The discs for TT 7FE arrived at the Overland Park Office on Tuesday, May 5, 2015. As Agent Wills testified, there was a scheduling issue which rendered Judge Crabtree-the authorizing judge-unable to sign a sealing order on May 5. Judge Crabtree ultimately signed the sealing order on Wednesday, May 6, 2015.

         The authorization period for TTs 22, 23, 24, and 25 all expired on Wednesday, June 7, 2017. In anticipation of the June 9 receipt of the discs for TTs 22-25, the Government requested a June 9 sealing appointment with Judge Crabtree (who had authorized the wiretaps). However, Judge Crabtree's Courtroom Deputy informed the Government that Judge Crabtree would not be available until June 12, 2017. The discs were ultimately sealed on June 12.

         All of the delays for these devices-TTs 7, 7FE, 22, 23, 24 and 25--can be attributed not to conduct of the Government, but scheduling issues with the sealing judges. Scheduling issues with the sealing judge constitute a satisfactory explanation for sealing delays.[19] Accordingly, the Court finds that the Government has provided satisfactory explanations for each delay in sealing the discs for TTs 7, 7FE, 22, 23, 24, and 25.

         3. Miscellaneous Issues: TTs 2 and 19

         Sealing issues regarding two TTs remain: TT 2 and TT 19. Defendants argue that there was a 27-day delay between the “end of the period of interception” and the date the discs for TT 2 were sealed. As previously explained, the end of the period of interception does not trigger the sealing requirement; the end of the authorization period does. But even if Defendants' interpretation were correct, Wills testified that no calls were intercepted for that TT. The only recorded call was a “test call” from DEA agents attempting to verify the wiretap was set up correctly. In other words, Defendants will suffer no prejudice if the discs from TT 2 are not suppressed.

         Defendants also argue that they have not been provided any information regarding TT 19, and that all interceptions recorded therefrom should be suppressed. However, as the Government Response explains and as Agent Maguire testified, no intercepts were recorded from TT 19. It is unclear that any discs related to TT 19 exist. Unless and until such evidence is identified, the Court declines to suppress the same.

         4. Alternative Trigger Dated: Using the End of Interception Period Rather Than the End of the Authorization Period

         Even if the Defendants were correct that the sealing requirement is triggered at the end of the surveillance period rather than the authorization period, the Government has met its burden to provide a satisfactory explanation for each delay. Here, the Government has explained that it relied on the plain language of § 2518 to determine that the sealing requirement was triggered once the authorization period expired. As Agent Wills testified, sometimes a phone line will be inactive and subsequently resume activity within the authorization period. Agent Maguire also testified that, for some of the roving authorizations, Judge Crabtree instructed him to wait and seal all of the discs at the end of the authorization period. In other words, the Government has demonstrated that it has objectively reasonable explanations for each delay, even if this Court were to ultimately decide that the sealing trigger date was the end of the surveillance period.

         Moreover, neither the Tenth Circuit nor the Supreme Court have given any indication that the Government's reasoning would be unreasonable. Even if the calculation of the trigger date for sealing purposes were to be a mistake of law, such mistake will qualify as a satisfactory excuse so long as that mistake of law was “objectively reasonable” at the time.[20] Relying on a judge's instructions to seal multiple tapes at the expiration of the authorization period constitutes objectively reasonable reliance, even assuming arguendo that such instruction were a “mistake of law.” The same reasoning excuses the agents' reliance on the plain language of § 2518 to determine that the trigger date of the sealing requirement was the expiration of wiretap authority rather than the expiration of the surveillance period. Accordingly, the Court finds that the Government has met its burden to provide a satisfactory explanation for its delays in sealing the wiretap recordings for TTs 1FE, 2, 3, 4, 5, 7, 7FE, 21, 22, 23, 24, 25, and 27 regardless of whether the trigger date for sealing recordings is the end of the authorization period or the end of the surveillance period.

         B. Minimization

         Defendants also argue that all evidence from the wiretaps should be suppressed because the Government did not meet minimization requirements. Specifically, the Defendants argue that: (1) regarding TTs 1-12, the Government has not demonstrated individuals listening to intercepted conversations were properly instructed on their legal limitations; and (2) regarding all TTs, the Government has not demonstrated that it properly minimized foreign language intercepts.

         Federal law permits the Government to apply for and obtain wiretap authorization upon a determination that probable cause exists to believe that an individual is committing, has committed, or is about to commit particular crimes.[21] Judicial orders permitting a wiretap must specify that the wiretap will “be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.”[22] If a wiretap was not conducted in conformity with this “minimization” requirement, a defendant may move to suppress evidence obtained therefrom.[23] As the Supreme Court has noted, “this provision does not create an ‘inflexible rule of law,' but rather demands an evaluation of the ‘facts and circumstances of each case.'”[24]

         In United States v. Willis, [25] the Tenth Circuit described the procedure for determining whether the Government's minimization efforts were reasonable. First, “[t]he government must make an initial prima facie showing of reasonable minimization.”[26] “‘Once the government has made a prima facie showing of reasonable minimization, the burden then shifts to the defendant to show more effective minimization could have taken place.'”[27] To determine whether the Government has established a prima facie case of reasonable minimization, courts consider the following factors: (1) whether a large number of the calls are very short, one-time only, or in guarded or coded language, (2) the breadth of the underlying investigation that gave rise to the need for the wiretap, (3) whether the phone is public or private, (4) whether the non-minimized calls occurred early in the surveillance period, and (5) the extent to which the authorizing judge supervised the ongoing wiretap.[28]

         Here, Defendants do not allege that the Government has failed to meet its prima facie burden. Instead, Defendants base their claims on the Government's failure to produce signed copies of a supervising attorney's memorandum to the DEA agents regarding minimization.[29]Neither § 2518(5) nor judicial precedent set out a specific procedure that must take place to achieve minimization; there is no statutory or judicial requirement that agents sign an acknowledgement that they have been instructed on minimization.

         Moreover, the Court is satisfied that the Government has established a prima facie case demonstrating compliance with the minimization requirement. The Government has: (1) produced memoranda that the supervising attorney provided to each person who listened to intercepted calls; (2) elicited testimony that all those memoranda were signed by the recipients; and (3) provided 15-day progress reports, each of which describe minimization procedures that agents utilized. The Government argues-and the Court agrees-that pre-interception briefing is a cautionary method employed by the Government and not a statutory or judicially-imposed requirement. The lack of signed memoranda is therefore not a source of concern for the Court, particularly in light of the progress reports for each TT that describe minimization procedures for the intercepted conversations.

         Defendants also make arguments related to translation and interpretation of Spanish-language interceptions. Defendants assert that “without adequate documentation of the foreign language minimization process, it is impossible to assess whether the government did, in fact, have a Spanish speaker present and, when there was no translator, whether it minimized ‘as soon as practical' after interception.”[30] While unclear, the argument seems to be based on a lack of documentation. But again, the minimization requirement is assessed under a standard of reasonableness. The Government has established that the same minimization procedures were employed for English and Spanish language interceptions. It has met its prima facie burden to demonstrate reasonable minimization took place for all calls-including those in Spanish. The burden then shifts to Defendants to demonstrate more effective minimization could have taken place. Defendants have failed to make such an allegation.

         In sum, these interceptions do not violate the minimization requirement of 18 U.S.C. § 2518(5). The Government has established its prima facie case, and Defendants have not alleged that “more effective minimization could have taken place.”[31]

         C. Territorial Jurisdiction

         Defendants also argue that the Government has failed to “provide records to show that interception of the telephone calls took place within the territorial jurisdiction of the Court.”[32] At the October 9, 2019 Hearing, Agents Wills and Maguire testified that monitoring of all 32 TTs took place within the District of Kansas. Both agents testified that the DEA listening post was located in Overland Park, Kansas, and that the location did not change during the course of the investigation.

         Section 2518(3) proves that, upon application and finding a statutory cause for the wiretap, a court:

may enter an ex parte order, as requested or 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).[33]

         In the Tenth Circuit, a communication is deemed “intercepted” for purposes of § 2518(3) either “where the tapped telephone is located” or “where the contents of the redirected communication are to first be heard.”[34] Here, as Agents Wills and Maguire testified, the “redirected communications” were all first heard at the DEA's listening post in Overland Park, Kansas; and, the location of that listening post did not change during the court of this investigation. Thus, all interceptions took place within the territorial jurisdiction of this Court.

         D. Necessity

         Defendants next argue that the affidavits supporting each wiretap did not meet the necessity requirement imposed by 18 U.S.C. § 2518(1)(c). Defendants contend that necessity was lacking for the following reasons: (1) normal investigative procedures were successful, (2) the stated purposes of the investigation had already been achieved, (3) less intrusive means to obtain information were successfully utilized, and (4) the Government did not demonstrate that the use of traditional investigative techniques would have been too dangerous. The Government responds that the affidavits established the necessity requirement.

         As a threshold issue, the Court notes that Castaneda has previously filed a Motion to Suppress Wiretap Evidence.[35] That motion argued that the Government failed to satisfy the necessity requirement as to TTs 21-29. This Court denied that motion, finding that Castaneda did not have standing to seek suppression of intercepts from TT 21, and that the Government had met the necessity requirement for TTs 22-29.[36] However, Portillo did not join in that motion, and the instant Motion applies to all 32 TTs. Notwithstanding its prior Memorandum and Order, the Court will address all arguments-including those about TTs 21-29 that echo Castaneda's prior Motion to Suppress-made in the instant Motion.

         1. Legal Standard

         Under 18 U.S.C. § 2518(1)(c), each wiretap application must include “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”[37]Additionally, before authorizing a wiretap investigation, a court must find that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.”[38] “Normal” investigative procedures include standard physical and video surveillance, questioning of witnesses and participants in the crime (including through the use of grand juries), executing search warrants, and the use of undercover agents or confidential informants.[39] “This rule is known as the ‘necessity' requirement.”[40] The purpose of this requirement is to “ensure that the relatively intrusive device ‘is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.'”[41]

         In determining whether a wiretap application is supported by a showing of necessity, a court must consider “all the facts and circumstances” and read the necessity requirement “in a common sense fashion.”[42] To meet the necessity requirement, the Government need not “‘exhaust all other conceivable investigative procedures before resorting to wiretapping.'”[43]Rather, if any traditional investigative techniques are not used, the Government must explain with particularity why it did not employ these techniques.[44] Once a wiretap application is authorized, the defendant bears the burden of proving that the authorization was invalid.[45] “If a defendant succeeds in showing that the necessity requirement was not met, evidence seized pursuant to the wiretap must be suppressed.”[46]

         2. Goals of the Investigation/Stated Purpose of the Investigation

         Defendants argue that the Government cannot establish necessity because “[m]ost, if not all, of the purposes or objectives stated in the Affidavit [for TT 1] were already known to the government” when the Government applied for wiretaps.[47] Defendants also assert that before the Government had applied for any wiretap orders, it already knew the organization's key personnel and had met other investigative objectives laid out above. The Government responds that “the target subjects were not all federally prosecutable before the Court granted Title III authority, ”[48]meaning the Government had not achieved the legitimate goals of the investigation at the time it submitted wiretap applications. It adds that “[t]he standard for necessity is not whether the defendant and others could be prosecuted for any federal crime without the use of Title III intercepts” but “whether the legitimate goals of the investigation”-including discovering the full breadth and operating procedures of the trafficking organization-“could be achieved through traditional investigative techniques.”[49]

         Each Phase I affidavit describes the goals of the investigation as follows:

a. discovering the full scope and identification of key personnel involved in illegal drug trafficking on behalf of [the Target Subjects], and others yet unknown;
b. discovering the identities and roles of all suppliers of cocaine, “ice” methamphetamine, marijuana, and/or other drugs or controlled substances to the conspirators;
c. discovering the identity of the main customers of [the Target Subjects], and others yet unknown;
d. discovering the stash locations where cocaine, “ice” methamphetamine, marijuana, and/or other drugs are stored or manufactured prior to distribution;
e. discovering the management and disposition of proceeds generated by the organization's drug trafficking; and,
f. obtaining admissible evidence that proves beyond a reasonable doubt that [the Target Subjects], and any later identified targets, committed the alleged violations of law set forth herein.[50]

         The investigatory goals listed in each Phase II affidavit are substantially similar to those listed for Phase I.[51]

         To begin, the Court agrees with the Government that its stated investigative objectives provided in the Phase I and II affidavits were neither overly broad nor illusory.[52] The Court also finds Defendants' assertion that the “identity of key personnel” and other investigatory “purposes or objectives stated in the Affidavit[s] were already known to the government” prior to applying for wiretaps to be belied by the record. As the Government concedes, it did know some information before applying for wiretaps; however, having such information did not obviate law enforcement's need for wiretaps to fully achieve the investigation's legitimate goals. For instance, as the Government has explained, ...


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