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United States v. Machado-Galeana

United States District Court, M.D. Louisiana

April 16, 2018





         This matter is before the Court on a Motion to Reconsider the Suppression of the Title III Wiretap filed by Defendant Roy Martin Herrera Romero. (“Motion, ” Doc. 490). The Government has filed an Opposition. (Doc. 514).

         After careful consideration of the law, the facts of this case, and the parties' arguments, for the reasons set forth below, the Motion is denied.


         In December 2014, this Court authorized and later re-authorized the wiretap of a telephone line used by Defendant Oscar Machado-Galeana. (See generally Docs. 490-3, 490-4). An affidavit in support of the wiretap stated that the wiretap would likely reveal evidence concerning a drug trafficking conspiracy; the identities of the targets' associates and the conspiracy's personnel; the identities of individuals supplying drugs and financing and receiving proceeds from drug trafficking; the participants' roles in the conspiracy; the nature, scope, places, and methods of operation of the conspiracy; and the full nature and identity of the enterprise. (Doc. 514-1 at 23, 44). The affidavit discussed the alleged conspiracy, noting that its members likely had ties to a Mexican cartel and a supplier in California. (Id. at 25, 30, 64).

         The orders authorizing the wiretap stated, inter alia, that interceptions should be conducted “as to minimize the interception of wire and electronic communications not otherwise subject to interception” and that monitoring would terminate “immediately when it is determined the conversation is unrelated to communications subject to interception[.]” (Doc. 490-3 at 4; Doc. 490-4 at 4). The orders continued:

Interception will be suspended immediately when it is determined through voice identification, physical surveillance, or otherwise, that none of the TARGET SUBJECTS [including Machado-Galeana, Romero, and others] or any of their confederates, when identified, are participants in the conversation, unless it is determined during the portion of the conversation already overheard that the conversation is criminal in nature. If a conversation has been minimized, the monitoring agents will spot check to ensure that the conversation has not turned to criminal matters. Each text message will be reviewed over a secure system, and based upon the identities of the sender and the recipient and the content of the message, monitoring personnel will determine as soon as practicable after the interception whether the text message appears to be relevant to the investigation or otherwise criminal in nature. If the message is not criminal in nature, the message will be marked “SMS Non-pertinent” and not accessed by other members of the investigative team. If the message appears to be privileged, it will be marked “Privileged” and secured from access from other members of the investigative team. If a text message appears to be relevant to the investigation or otherwise criminal in nature, it will be marked “SMS-Pertinent” and may be shared with other agents or monitors involved in the investigation. If a text message is marked “SMS Non-Pertinent” or “Privileged, ” it will not be disseminated to members of the investigative team. All intercepted text messages will be sealed with the Court upon expiration of the Court's Order authorizing the interception. It is anticipated that the monitoring location will not be staffed at all times, but will be staffed at regular hours, at which time intercepted communication will be monitored and read (including those intercepted at hours when the location was not staffed). However, even when unmanned, the monitoring location will be kept secured with access limited only to authorized monitoring personnel and their supervising agents[.]
IT IS FURTHER ORDERED that . . . in the event the intercepted wire or electronic communications are in code or foreign language, and an expert in that code or foreign language is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception[.]

(Doc. 490-3 at 5-6; Doc. 490-4 at 4-6 (formatting altered)).

         The United States Attorney's Office prepared instructions for conducting the wiretap. (See generally Doc. 490-9). The instructions stated that the interception of non-pertinent and privileged communications should be minimized, that the results of the wiretap could be suppressed if monitors “listen[ed] to every communication occurring over the designated telephone lines, ” and that “‘[m]inimization' requires that the agents and officers make a good faith determination of whether each communication is relevant to those illegal activities described [below].” (Id. at 2). The instructions directed that, if, “after several days or weeks of interception, we have learned that communications between one or more of the TARGET SUBJECTS and a particular individual or individuals are invariably innocent, non-crime related matters, then a ‘pattern of innocence' exists and such communications should not be recorded, listened to, or even spot monitored, once such an individual has been identified as a party to the communication.” (Id. at 9). On the other hand, the instructions stated that, “[i]f we have been able to identify (by visual surveillance, name, nickname, voice, etc.), one or more individuals as co-conspirators, confederates, accomplices, or agents of one of our subjects in his or her Illegal Activities, and there is no applicable privilege involved . . . the ‘spot monitoring' requirement may be relaxed somewhat as to communications between our TARGET SUBJECTS and those individuals.” (Id. at 9-10).

         While the wiretap was operating, four 15-Day Reports issued to a judge of this Court concerning the operation of the wiretap. (See generally Docs. 490-5, 490-6, 490-7, 490-8). Each of these reports stated that DEA monitors listened to all intercepted communications in real time and determined “when, or if, a conversation should be intercepted or minimized, ” and monitors “made efforts to, and did, minimize non-pertinent conversations.” (Doc. 490-5 at 1; Doc. 490-6 at 1; Doc. 490-7 at 1-2; Doc. 490-8 at 1).

         Each 15-Day Report also contained statistics concerning the operation of the wiretap during that period. The first 15-Day Report stated that 712 calls had been intercepted, 141 of those had been deemed “pertinent, ” and 13 had been minimized. (Doc. 490-5 at 18). 86 of the total calls were longer than 2 minutes, and 11 calls longer than 2 minutes were minimized. (Id.).

         The second 15-Day Report stated that 578 calls had been intercepted, 109 of those had been deemed “pertinent, ” and 10 had been minimized. (Doc. 490-6 at 14). 84 of the calls were longer than 2 ...

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