United States v. Johnson

191 F. Supp. 3d 363, 2016 WL 7107236
District Court, M.D. Pennsylvania·Decided May 11, 2016·No. No. 4:16-cr-00019·Published·Cited by 2 cases

Opinion

[365] MEMORANDUM

Matthew W. Brann, United States District Judge

I. BACKGROUND

On February 11, 2016, a federal grand jury sitting in Williamsport, Lycoming County, Pennsylvania returned a ’ superseding indictment that charged the Defendants in this matter with conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 and § 841 and firearms offenses in violation of 18 U.S.C. § 922(g)(1) and § 924(a). Critical to the investigation were certain interceptions- of Defendants’ wire and electronic communications authorized by this Court.,

On November 20, 2015, the Court approved the initial interception of oral, wire, and electronic communications made ■ by Defendants and others over cellular telephone facilities. That authorization was later extended on December 22, -2015. On January 13, 2016, a second order issued authorizing interception of wire and electronic communications on additional telephones, which the results from the first interception period indicated were receiving forwarded calls from the initial target phones or were otherwise involved in the alleged conspiracy.

Thorough applications . and affidavits made by the United States and certain of its officers in support of its request to conduct electronic surveillance were filed with the Court, under seal. Specifically, certain law enforcement officers submitted affidavits totaling nearly one hundred and fifty pages that detailed those aspects of their investigations warranting authoiization of the wiretaps. .

The Government reported detailed findings to the Court as to status of the investigation once each ten-day period while the interceptions remained active. In addition, following the completion of each of the interception periods, the authenticity of the audio recordings was attested to and said recordings were received in-person by the Court from certain representatives of the Government and law enforcement officers.

All of the search warrant materials were filed with the Court under seal, and remain under seal at this time. Among other details, the reports reveal information as to uncharged third-parties, cooperating third-parties, unidentified phone numbers, law enforcement officials, and representatives for the Government—information [366] gathered not only from the Defendants’ own communications and data but also from summaries written by the affiants that summarize and place in context the communications. As the Government states, “[sjeveral of the uncharged inter-ceptees are the subject of ongoing investigation by the FBI and [the Pennsylvania State Police].”1 Moreover, the sealed documents contain descriptions of investigative tactics and the broader status of this operation, which to the Court’s knowledge, remains open and ongoing.

On March 9, 2016, pursuant Federal Rule of Criminal Procedure 16, the United States filed a sealed ex parte motion for a protective order. The motion asked the Court to authorize a controlled disclosure to Defendants of the applications, affidavits, orders, ten-day reports, and wire and electronic recordings made in connection with the subject surveillance, as well as related applications and orders for pen registers, trap and trace devices, and geographic locations of cellular telephones authorized by this Court. The motion also requested controlled disclosure of warrants, applications, affidavits, and related reports made in connection with search warrants that were authorized by this Court. The following items were the subject of the protective order:

Item 1, DVD: T-III (audio and electronic), Pen Registers, and CDR All Inclusive
Item 2. CD: T—Ill All Inclusive, Orders, Applications,
Item 3. CD I of 2: T-III Surveillance
Item 4. CD 2 of 2: T-III Surveillance
Item 5. CD: Pen Register Applications and Orders All Inclusive
Item 6. CD: Search Warrants, Vehicles, phone, residences and motel rooms

' In pertinent part, the protective order: (1) requires counsel for Defendants’ and counsels’ staff to keep the protected items secure and confidential; (2) forbids defense counsel from copying, reproducing, or disclosing the protected items in any form, except to the extent that counsel may discloses the items’ contents to their clients while retaining control over such items at all times; and (3) requires defense counsel to keep secure and confidential any personal identifiers contained in the protected items.2

To the extent that defense counsel deems it necessary to disclose the contents of the protected items to third parties in preparation for their client’s defense, defense counsel must also request under seal with a copy to the Government, an order authorizing such disclosure.3 In such event, defense counsel is responsible for removing personal identifiers in the disclosed portions of the evidence.4 Defense counsel must also obtain and file with the Court a signed acknowledgment by the third party agreeing to abide by the terms of the protective order.5 The protective order Defense counsel must return the protected items to the government not later than twenty days following the latter of sentencing, any other disposition of the charges, or conclusion of a direct appeal.6

In support of its motion for the protective order, the Government stated that “[t]he electronic surveillance and search [367] warrant materials contain sensitive and confidential information regarding sources of information, locations, individual identifying information, and information relevant to on-going criminal investigations of individuals not charged in the indictment.”7 Given those reasons, the Court granted the Government’s motion to institute the protective order.

Moreover, by way of further support, the Government explained that the intercepted conversations were likely to “contain conversations, in whole or in part, of individuals not included in the indictment.”8 As the Government quite reasonably anticipated, “If the disclosed materials are made available to the press and general public the defendants ‘right to a fair’ trial, as well as the rights of persons not charged in the indictment, may well be affected.”9

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United States v. Johnson, 191 F. Supp. 3d 363, 2016 WL 7107236 (M.D. Pa. 2016).

191 F. Supp. 3d 363 (United States v. Johnson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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