United States v. Perez

353 F. Supp. 3d 131
CourtDistrict Court, District of Columbia
DecidedDecember 18, 2018
DocketCriminal Action No. 16-30044-MGM-8
StatusPublished

This text of 353 F. Supp. 3d 131 (United States v. Perez) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Perez, 353 F. Supp. 3d 131 (D.D.C. 2018).

Opinion

MASTROIANNI, U.S.D.J.

I. INTRODUCTION

Presently before the court is a Renewed Motion for Discovery filed by Juan Perez ("Defendant"), in which he seeks an order directing the government to provide unredacted copies of affidavits filed in support of applications for warrants under Title III of the Omnibus Crime Control and Safe Streets Act ("Title III"), 18 U.S.C. §§ 2510 - 2522. The government previously *133provided Defendant with the Title III applications and orders but, following a series of discovery skirmishes, Defendant learned that these materials were redacted to remove certain attachments to the affidavits discussing a confidential informant. The weighty legal issue presented here is whether the government may withhold disclosure of information contained in Title III warrant applications pursuant to the informant's privilege, see Roviaro v. United States , 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), despite the requirement set forth in 18 U.S.C. § 2518(9) that the government provide the defendant with a copy of the Title III application and court order before introducing any evidence derived from the warrant at trial or in any proceeding. The court concludes that if Roviaro were the only standard applicable the result would be different, but here Congress has made clear in a comprehensive statutory scheme that the entire application must be provided to the defendant. Accordingly, the court will grant Defendant's motion.

II. BACKGROUND AND PROCEDURAL HISTORY

Defendant has been charged with conspiracy to distribute heroin and to possess heroin with intent to distribute. (Dkt. No. 464.) He is one of nineteen co-defendants charged in the second superseding indictment with crimes related to drug trafficking. As part of the investigation into the drug trafficking organization, the government applied for and was granted a series of Title III wiretap warrants. (See Dkt. Nos. 16-93014-MGM, 16-93015-MGM, 16-93016-MGM, and 16-93019-MGM.) The affidavits filed in support of the warrant applications describe in detail the investigation, what the government expected to learn through the wiretaps, and why traditional investigative techniques were insufficient, among other things.

Following a discovery request submitted by Defendant and the government's declination to provide all the requested information, Defendant filed a Motion to Compel Discovery. (Dkt. No. 341.) Defendant sought, among other items, disclosure of the identity of a target of a wiretap warrant on the theory that this individual was actually a confidential informant, the government had not disclosed this fact to the court in the wiretap applications, and, as a result, the government had not satisfied the "necessity" requirement for Title III warrant applications. See 18 U.S.C. § 2518(1)(c) ("Each application shall 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.").

As the parties litigated this issue before Magistrate Judge Katherine A. Robertson, the government maintained-while being careful not to confirm or deny the target's status as a confidential informant-that the court had not been misled in approving the wiretap applications. In one of its public filings, the government cited, in a footnote, certain pages in the underlying Title III applications to support its assertion "that the issuing Judge was not misled." (Dkt. No. 426 at 7 & n.4.) Immediately following the citation of the Title III applications, the government stated:

These documents were filed under seal and remain under seal per order of the Court. The documents have been provided to the defendants in the government's automatic disclosures, but these particular pages were provided in a completely redacted form. At the time, the defendants were also provided notice of the government's declination to provide un-redacted versions of these pages pursuant to LR 7.2 and LR 116.6.

(Dkt. No. 426 at 7 n.4.)

After Judge Robertson denied Defendant's motion, Defendant appealed that *134ruling to the undersigned. (Dkt Nos. 433, 445.) This court affirmed Judge Robertson's order on this issue, explaining that she "did not clearly err, abuse her discretion, or rule contrary to law in finding that Defendant failed to make an adequate showing of materiality" under Fed. R. Crim. P. 16 based on Defendant's "necessity" argument. (Dkt. No. 492.) This court additionally explained that it had reviewed the underlying Title III applications and orders (which it had originally issued) and found that it was not misled. (Id. ) In light of the revelation that the government had provided redacted copies of the Title III applications (purportedly in compliance with Local Rule 116.6), however, this court explained that its "ruling is without prejudice to Defendant's ability to seek, pursuant to Local Rule 116.6, unredacted copies of the Title III applications and affidavits already provided by the Government." (Id. )

Thereafter, Defendant filed his pending Renewed Motion for Discovery. (Dkt. No. 517.) Defendant asserted that, in providing him with a discovery letter and the Title III materials, the government had not apprised him it "was declining to provide any portion of the Title III materials." (Id. at 1.) Instead, he explained: "As a result of a series of hearings on his requests the Defendant has now learned that the Government's Application contained an [Attachment] 'A' that was not provided to Defendant." (Id. )1 With this new information, Defendant moved for production of the redacted attachment under the framework provided by Local Rule 116.6(a), but substantively relying on 18 U.S.C. § 2518(9). In response, the government asserted the "informant's privilege" recognized in Roviaro ,2 but did not address *135

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Bluebook (online)
353 F. Supp. 3d 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-perez-dcd-2018.