United States v. Rosenthal

32 F. Supp. 3d 774, 2013 U.S. Dist. LEXIS 188375, 2013 WL 9010187
CourtDistrict Court, S.D. Texas
DecidedJanuary 23, 2013
DocketCriminal No. B-11-743
StatusPublished

This text of 32 F. Supp. 3d 774 (United States v. Rosenthal) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rosenthal, 32 F. Supp. 3d 774, 2013 U.S. Dist. LEXIS 188375, 2013 WL 9010187 (S.D. Tex. 2013).

Opinion

ORDER

ANDREW S. HANEN, District Judge.

On December 18, 2012, the Court held a hearing on Defendant’s Motion to Disclose or Unseal Applications, Orders and Inventory of Title III Intercepts, and Motion for Evidentiary Hearing, and Motion to Suppress Title III Intercepts [Doc. No. 144] and Defendant’s Supplemental [sic] to Motion to Suppress Evidence Derived from Title III Intercepts and Motion for Franks Hearing, Dismissal of Indictment Tainted By Wrongful Intercepts and Request for Clarification of Court Order in Doc. No. 201 [Doc. No. 205]. The Court ruled on the various grounds for suppression proffered in Defendant’s motion during the hearing, as detailed below. In this order, the Court additionally rules on further grounds, on which Defendant also rests his argument for suppression, that were either taken under advisement or were included in Defendant’s written motion but not advocated during the hearing. Lastly, the Court addressed on December 18, 2012 [777]*777Defendant’s request for Clarification of the Court’s prior ruling on October 26, 2012 and GRANTED Defendant’s renewed Motion to Change Venue for the reasons set forth at the conclusion of this order.

I. Motion to Suppress Title III Intercepts

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 governs the interception of wire and oral communications. 18 U.S.C. §§ 2510-2522. The statute provides that the contents of any wire and oral interception, as well as evidence derived therefrom, must be suppressed in any trial if disclosure of the evidence in question would violate Title III. 18 U.S.C. § 2515. The specific grounds for suppression are outlined in 18 U.S.C. § 2518(10)(a), which provides in pertinent part that suppression is mandated when: “(i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.” See also United States v. Donovan, 429 U.S. 413, 432, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). Defendant has filed a motion to suppress asserting various violations of Title III and requesting this Court to suppress all evidence related to the Title III intercepts at issue in this case.

The Court preliminarily notes that Defendant’s motion, while asserting numerous grounds upon which this Court may suppress the evidence, failed almost entirely to identify the specific intercept application^) to which various alleged violations pertained. In order for the Court to rule on Defendant’s objections, and especially in light of the plethora of applications potentially relevant,1 the Court instructed Defendant during the hearing to specifically identify the intercept application(s) at issue for each objection. Per Counsel’s representations, the Court ruled on the objections as so limited in open court.

A. Standing

Title III provides that any “aggrieved person ... may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom....” 18 U.S.C. § 2518(10)(a). The statute further defines “aggrieved person” as “a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” 18 U.S.C. § 2510(11). The Government maintained that Rosenthal was only ever intercepted on Target Telephone # 2 and Target Telephone # 5. He was first intercepted on Target Telephone #2 during the third extension period of the wiretap and was included as a named interceptee on all subsequent applications for extensions pertaining to Target Telephone # 2. He was both a named inter-ceptee for, and intercepted numerous times on Target Telephone # 5. Defendant agreed with the Government’s representation and conceded that Rosenthal had standing to challenge only the intercept applications for Target Telephone # 2 from the third extension application onward and for Target Telephone #5. As [778]*778agreed by the parties, the Court finds that Rosenthal’s standing is accordingly limited. To the extent that Defendant’s motion challenges any applications aside from those aforementioned, this motion is DENIED.

B. Conflict of Interest and Franks Hearing

Defendant argues that FBI Agent Vela failed to disclose a conflict of interest to the Court, that such failure constituted a material omission without which a finding of probable cause for the intercepts against Rosenthal cannot be made, and that Defendant is entitled to a Franks hearing to prove his allegations. The alleged conflict of interest arises from FBI Agent Vela’s previous marriage to “a partner in the law firm ... that represented clients where the opposing attorney is Marc Rosenthal.” [Sealed Ex. C, Evidence of Conflict of Interest of. Special Agent Vela, Doc. No. 206-3]. Specifically, “the subject civil lawsuit that underlies the basis for conflict of interest disqualification was Deyanara Tapia v. Union Pacific Railroad, in Judge Andrew Hanen’s court.” [Id.] According to Defendant this conflict of interest provided FBI Agent Vela with motive to target Rosenthal in the intercept applications, and as such should have been disclosed to the Court. Further, Defendant maintains that had such disclosure been made, no probable cause as to Rosenthal would have been found.

The Court first notes that Defendant’s objection applies only to the intercept applications for Target Telephone #2, as FBI Agent Mark J. Gripka submitted the affidavit for the intercept application for Target Telephone # 5. Second, the Tapia case on which Defendant bases his objection concluded in October 2007, and the first application for which Rosenthal has standing to object was filed on February 15, 2008. The alleged source of the conflict of interest was therefore long resolved before Rosenthal was ever intercepted in the course of the Government’s investigation. Further, it was not until the fourth extension intercept application filed on March 14, 2008 that Defendant was first named as a target interceptee. Rosenthal had been intercepted on Target Telephone # 2 in a conversation with Judge Limas on March 5, 2008, in which Rosenthal discussed disposing of Judge Limas’ political opponent by securing an indictment against the opponent. [Docket No. 1:07-mc-22, Doc. No. 69 at 7-8]. The Court finds that this conversation, rather than any alleged conflict of interest, is the more likely reason why Rosenthal was added as an interceptee in subsequent applications for Target Telephone #2. Had there been a conflict of interest, the Court believes Rosenthal would have been named as an interceptee long before, given that FBI Agent Vela submitted the affidavits for the original intercept application filed on November 16, 2007 and the first three extension intercept applications. Lastly, the Court notes that the Tapia

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Bluebook (online)
32 F. Supp. 3d 774, 2013 U.S. Dist. LEXIS 188375, 2013 WL 9010187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rosenthal-txsd-2013.