Opinion
No. CR 14-00196 CRB
07-09-2015
UNITED STATES OF AMERICA, Plaintiff, v. KWOK CHEUNG CHOW, a/k/a "Raymond Chow," a/k/a "Hai Jai," a/k/a "Shrimpboy," et al. Defendants.
MEMORANDUM AND ORDER DENYING MOTIONS TO SUPPRESS
REDACTED PUBLIC VERSION
The Court files this Order to provide the reasoning for the Court's ruling at the July 7, 2015 motion hearing.
I. BACKGROUND
Defendants Keith Jackson and Leland Yee filed separate motions to suppress the evidence derived from five wiretaps in this case, or in the alternative, for Franks hearings. See generally Yee Mot. and KJ Mot. Although Jackson and Yee subsequently entered pleas in this case, the motions remained pending, as they were joined by the remaining Defendants. See Order granting Stipulation re Joinders (dkt. 512). The remaining Defendants did not timely file their own motions.
The Court notified the parties in December of last year that all Franks motions were to be filed at the same time. See Tr. of 12/18/2014 (dkt. at 62:3 (Court: "I want to be sure that any defendant in this case in the entire Indictment present the Franks motion at or about the same time. I don't want to have 28 Franks motions."); id. at 62:18 (Brosnahan: "There will be a Franks motion filed, and all the counsel will try to make it one motion"); id. at 65:6-7 (Court: "Any Franks motion that any defendant wishes to make should be filed on or before March 26."); id. at 70:7-8 (Court: "A Franks motion is a motion we'll be addressing to the entire group."); id. at 73:13-18 (Stepanian: ". . . those motions are going to be heard by everyone; and whatever our particular input is in that motion, we're going to interface with the four people being tried in June so that, as the Court stated, you want it done at one time. That's correct, your Honor?" Court: "That's correct."). In March 2015, some of the Defendants sought an extension of sixty days to submit a Franks motion. See Request (dkt. 733). The Court reset the dates, giving Defendants until May 28, 2015 to file their Franks motions. See Amended Order Resetting Franks Motion Submission and Hearing Dates (dkt. 745). Only Jackson and Yee timely filed motions. See Yee Mot; KJ Mot. At 11:52 PM on May 28, 2015, Defendants Chow, Nieh, Chiu, Siu, Pau, and Yun requested "that the currently scheduled Franks motion submission date of May 28, 2015, and hearing date of July 7, 2015, be vacated." See Request (dkt. 801). The Court denied that request, noting that the six moving Defendants joined in the Yee and Jackson motions. See Order Denying Request to Reset (dkt. 806). The Court held that the moving Defendants could make an argument about the Nieh Mercedez Benz wiretaps at a later date, if warranted. Id.
II. LEGAL STANDARDS
A. Misrepresentations
The Supreme Court explained the role of misrepresentations in affidavits as follows:
There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. . . . if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.Franks v. Delaware, 438 U.S. 154, 171-72 (1978). The Ninth Circuit expanded upon Franks, setting out a five-prong test that a defendant must meet to justify a Franks hearing:
(1) the defendant must allege that specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; (5) the challenged statement must be necessary to find probable cause.United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986) (internal citation omitted); see also United States v. Ippolito, 774 F.2d 1482, 1485 (9th 1985) (any "false statements must be material to a finding of probable cause."). Franks hearings are not "obtainable on a bare allegation of bad faith." United States v. Chesher, 678 F.2d 1353, 1360 (9th Cir. 1982). And "'[i]n doubtful cases, preference should be given to the validity of the warrant.'" United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir. 1987) (citation omitted).
B. Probable Cause
18 U.S.C. § 2518(3) allows courts to authorize wiretaps if an applicant shows probable cause that: an individual is committing, has committed, or is about to commit specified offenses; communications relevant to that offense will be intercepted through the wiretap; and the individual who is the focus of the wiretap investigation will use the tapped phone. 18 U.S.C. § 2518(3)(a), (b), (d). Courts will uphold a wiretap if, looking only at the four corners of the application, "there is a 'substantial basis' for these findings of probable cause." United States v. Meling, 47 F.3d 1546, 1552 (9th Cir. 1995) (citations omitted).
C. Necessity
A wiretap application must include a "full and complete statement" as to whether traditional investigative procedures (1) have been tried and failed; (2) reasonably appear unlikely to succeed if tried; or (3) are too dangerous to try. 18 U.S.C. § 2518(1)(c); see also 18 U.S.C. 2518(3)(c). The purpose of such requirements is "to ensure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir. 2001). Law enforcement "need not exhaust every conceivable alternative before obtaining a wiretap." United States v. McGuire, 307 F.3d 1192, 1196-97 (9th Cir. 2002). "The statute does not mandate the indiscriminate pursuit to the bitter end of every non-electronic device as to every telephone and principal in question to a point where the investigation becomes redundant or impractical or the subjects may be alerted and the entire investigation aborted by unreasonable insistence upon forlorn hope." United States v. Baker, 589 F.2d 1008, 1013 (9th Cir. 1979). A judge authorizing "a wiretap has considerable discretion" as to necessity, and necessity findings are reviewed for abuse of discretion. McGuire, 307 F.3d at 1197.
D. Minimization
Wiretapping must "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception. . . ." 18 U.S.C. §2518(5). "Minimization requires that the government adopt reasonable measures to reduce to a practical minimum the interception of conversations unrelated to the criminal activity under investigation while permitting the government to pursue legitimate investigation." McGuire, 307 F.3d at 1199. "The statute [authorizing interceptions] does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to 'minimize' the interception of such conversations." Scott v. United States, 436 U.S. 128, 140 (1978).
Minimization techniques "do not need to be optimal, only reasonable," and the government bears the burden of proving its compliance with the minimization requirement. United States v. Rivera, 527 F.3d 891, 904 (9th Cir. 2008). The Ninth Circuit has opined in dicta that "[i]n a case where it is clear that the minimization provision of the order was disregarded by the Government throughout the period covered by the order, a total suppression might well be appropriate. We assume, arguendo, that such should be the rule." See United States v. Turner, 528 F.2d 143, 156 (9th Cir. 1974).
III. DISCUSSION
Defendants move to suppress on four bases: (A) the Affidavits include material false statements and misrepresentations; (B) the Affidavits lack probable cause; (C) the Affidavits fail to demonstrate necessity; and (D) in conducting the wiretaps, the government failed to adequately minimize unrelated conversations. Although some of the representations Defendants identify are misleading, there is more than enough probable cause demonstrated in the remainder of the Affidavits. Defendants' arguments about necessity and minimization also fail. Accordingly, the Court DENIES both motions.
A. Misrepresentations
Defendants primarily challenge representations made in the November 13, 2012 Affidavit, but also challenge some of the representations made in the subsequent four Affidavits. Defendants challenge the following statements in the November 13, 2011 Quinn Affidavit (Chatterjee Decl. Ex. 18) (hereinafter "First Quinn Aff.").
1. Agent Quinn asserts that "Every conversation listed in this Affidavit to which 4773 was a party, except one conversation, was recorded and I have reviewed all recorded conversations and/or reports of those conversations." KJ Mot. at 2-3 (citing First Quinn Aff. at 13 n.2).
Jackson argues that there are hundreds of hours of recordings leading up to this Affidavit and that it is "doubtful" that Quinn listened to every conversation. Id. at 3. If Quinn instead relied on 4773's reports, Jackson concludes, then—given 4773's misconduct—"there are significant concerns about the reliability of the information [4773] reported." Id. This argument lacks merit. First, the Court has reviewed in camera documents pertaining to the 4773 investigation, and has no concerns about 4773's reliability in completing the reports in this case. Second, "the veracity of only the affiant must be challenged," see Perdomo, 800 F.2d at 920, and this argument really challenges 4773's veracity, not Quinn's. Third, this challenge is improperly conclusory, and based on pure speculation about what Quinn and 4773 did. See Franks, 438 U.S. at 171.
2. Agent Quinn asserts that from 2011 on, 4773 was "solicited by JACKSON and others to make unlawful payments to" campaigns. KJ Mot. at 3 (citing First Quinn Aff. at 13).
Jackson argues that he was not soliciting unlawful payments from 4773; rather, 4773 was the first person to suggest the idea of donations in excess of the contribution limits, which he did in a September 26, 2011 phone call to Jackson. Id. (citing Chatterjee Decl. Ex. 1). Jackson adds that the government misleadingly omits that he stated that any donations needed to be made by credit card or check as required by local campaign law. Id. This argument is also without merit.
Certainly in the September 26, 2011 phone call, 4773 spoke extensively about how to provide Yee with additional money; at one point in that conversation he said "The, the last way I can get some, some cash through you and then you can just break it up however you, you know, y'all need to break it up." Opp'n Ex. 3. According to the government's transcript (but not Defendants'), Jackson responds "We can do that too." Id. The Court has listened to that audio file, and Jackson indeed says "we can do that too." See Opp'n Ex. 4. Although this does not show Jackson initiating the talk of unlawful payments, it does show Jackson seeking payments and being receptive to the idea of unlawful payments. The Affidavit was therefore not misleading. Moreover, just a few minutes after the September 26, 2011 call with Jackson ended, 4773 received a call from Yee addressing future meetings to raise money, First Quinn Aff. at 21—this was one of many instances in which Jackson and Yee solicited 4773 for contributions. The government also notes that Jackson first suggested to undercover agents the idea of giving $5,000 as a lump payment and then breaking it up into different accounts in May 2011. Opp'n at 13 (citing Opp'n Ex. 2 at 5). Moreover, Jackson's credit card comment was captured in the Affidavit's reference to "UCE 4773 and JACKSON briefly [having] spoke[n] about UCE 4773's wife's contribution using her credit card." First Quinn Aff. at 21.
Defendants cannot refute this but argue only that this exhibit is an FBI-302 summarizing the conversation. KJ Reply at 5.
3. Agent Quinn states that "official action included Senator Yee acting on behalf of companies that UCE 4773 represented he had an interest in contracts with the State of California and other governmental entities." KJ Mot. at 3 (citing First Quinn Aff. at 14).
Jackson argues that Yee is alleged to have made a call and written a letter on behalf of only one company. KJ Mot. at 3. But the next line of the Affidavit references just one call and just one letter. See First Quinn Aff. at 14. Moreover, the government points to numerous other places in the Affidavit referencing 4773 as presenting himself as a "businessman . . . who represents clients who are interested in business and investment opportunities. . .", First Quinn Aff. at 19, and "as having an interest in companies involved in, among other things, affordable housing, senior-assisted living facilities, and technology consulting," id. at 38. Whether 4773 solicited the one call and one letter on behalf of a company or multiple companies is immaterial.
4. Agent Quinn asserts that Jackson and others agreed that 4773 would receive favors, which would "include benefits in receiving contracts as local and/or minority businesses for companies in which [4773] had an interest, regardless of their place of operation and the ownership of companies." KJ Mot. at 4 (citing First Quinn Aff. at 15).
Jackson argues that this is false and that there was no such conversation. Id. In response, the government points to: (1) a conversation between 4773 and an individual named about local contracts, First Quinn Aff. at 42, and (2) a conversation between 4773 and , in which said "You pay to play here. . . . We are the best at this game," id. at 32. While these conversations provide some support for Quinn's representation that "JACKSON, , and have repeatedly stated their understanding and agreement that [4773] expected to, and would, receive political favors in exchange for these contributions," including local business contracts, see id. at 14-15, it is misleading as to Jackson. The government does not identify any conversations involving Jackson and either local contracts or minority business status. The Court therefore strikes this representation.
5. Agent Quinn asserts that 4599 represented himself to Jackson "as a marijuana trafficker and money launderer from New Jersey who is affiliated with La Cosa Nostra, an Italian organized crime organization." KJ Mot at 4.
Jackson argues that this is false and that the defense has located no recording in which 4599 told Jackson he was affiliated with La Cosa Nostra, the mafia, or that he was a marijuana trafficker. Id. The government's response to this is unsatisfactory: that a real member of the mafia would not use the name "La Cosa Nostra" or "mafia" in conversation, but that 4599 "made his character's cover story abundantly clear to Jackson throughout the course of their relationship." See Opp'n at 15. The government points to discussions in which 4599 referred to his marijuana grow in Mendocino County and to using a nightclub/bar in Atlanta to launder money. Id. (citing Opp'n Ex. 5). And the government points to 4599's having a connected family. Id. (citing Opp'n Ex. 6) (302 Report: "UCE told BJACKSON that his family was part of a large criminal enterprise that engaged in various types of criminal activities."). While this last exhibit provides some support for Quinn's statement, the Court nonetheless concludes that Quinn's statement, explicitly naming La Cosa Nostra, goes too far, and strikes it.
6. Agent Quinn asserts that on May 25, 2011, Jackson told 4599 that "if [4599] wanted to contribute $5,000 to Senator Yee's campaign, the money could be placed in different accounts under multiple names at a rate of $500 each." KJ Mot at 4 (citing First Quinn Aff. at 18).
Jackson argues that this conversation does not appear in discovery. Id. What does appear in discovery, Jackson asserts, is a conversation on May 25, 2011 in which 4599 offers to donate to Yee, and Jackson makes it clear that the donation is subject to local limits and has to be made by check or credit card. Id. (citing Chatterjee Decl. Ex. 3) ("That's it. You can only do $500. . . . you gotta do a check. . . . you could do a credit card."). The government argues that the challenged representation does exist in discovery, and points to a 302 stating that "JACKSON explained if the UCE wanted to invest $5,000 in YEE, the money can be placed in different accounts under multiple people at $500 each." Opp'n Ex. 2 at 218. Jackson argues that this statement never occurs during the three hour recording of this conversation. KJ Reply at 8 (citing Chatterjee Decl. Ex. 29). The Court listened to the recording. Although there are moments the Court could hear clearly, the recording consists largely of unintelligible conversation occurring at a nightclub with music playing loudly in the background. That one cannot hear a particular sentence spoken during such a recording does not prove that it was not spoken. Given the Affidavit's presumption of validity, see Franks, 438 U.S. at 171, the Court finds this representation supported.
7. Agent Quinn asserts that on June 24, 2011 Jackson "asked [4599] to contribute $3,000." KJ Mot. at 5 (citing First Quinn Aff. at 18).
Jackson argues that Jackson actually told 4599 that he had committed to raising $20,000 for Yee and was $3,000 short. He then asked 4599 if he "would be interested in raising a little money for us." Id. (citing Chatterjee Decl, Ex. 4). Jackson deems this "emblematic of the government's misrepresentations" as raising $3,000 is entirely different from contributing $3,000. Id. The government has no good response to this, arguing that "[t]he difference is trivial" in light of the May 25, 2011 conversation—"whether 'raising' or 'contributing,' Jackson had already made it abundantly clear to [4599] that if one person wanted to make a lump sum donation over $500, he could do so by using multiple accounts." Opp'n at 16. But "raise" and "contribute" are different concepts—the former is perfectly legal, while the latter suggests unlawful payments. On this instance, Jackson said "raising." The Court therefore strikes this representation.
8. Agent Quinn asserts that sometime before September 20, 2011, "4599 told Jackson that his friend [4773] was a businessman who assisted [4599] in laundering money." KJ Mot. at 5 (citing First Quinn Aff. at 19).
Jackson argues that in no recorded conversation does 4599 ever discuss with Jackson that 4773 assisted 4599 with money laundering. Id. Jackson notes that 4773 was actually introduced as a businessman with his own dealings, interested in growing his business in the Bay Area. Id. He points to a call between Jackson and 4599 on September 14, 2011 in which 4599 describes 4773 as follows:
[A]ctually, one of the guys my family does business with, his name is Mikey, or I call him Mikey, but his real name is Michael . He's a really, really good guy, he's a heavy hitter from the Atlanta area. I think he's definitely somebody you should know because he's gonna start up—he's looking at starting up some business in and around this area and everything he does, I mean he's done a lot of work with us and he's helped my family out a lot, but he's got his own thing going on and I think he's worth meeting. He's definitely worth meeting.Chatterjee Decl. Ex. 5. The government responds that "[a]lthough [4599] may not have overtly used the phrase 'laundering money,' it would have been clear to Jackson." Opp'n at 16-17. But the statements the government points to ("he's done a lot of work with us and he's helped my family out a lot," "he's got his own thing going on," "Mike's a great guy, I think you guys should definitely at least, minimally, talk, trade emails, but I think he's he's wantin to do a lot of business out here," and "he, uh, he knows the deal . . . I wanna help out and you know, and uh, but there's only certain ways that I can do it.") are not enough to support the specific representation that 4773 helped with money laundering. The Court therefore strikes the representation.
9. Agent Quinn states that Jackson told 4773 that "he broke up the money among straw donors in order to make conduit contributions." KJ Mot. at 5-6 (citing First Quinn Aff. at 22).
Jackson argues that it is unclear when this conversation would have taken place, although Quinn might have been referring to an October 10, 2011 conversation. Id. "As of this date, however, it was impossible for Mr. Jackson to have 'broken up' any contribution from [4773]. [4773] had only contributed a total of $1,000, representing $500 from UCE-4773 and $500 from UCE-4773's wife," legal amounts. Id. at 6. The government points to a 302 report stating that on October 12, 2011, "[]on the way to Yee's headquarters, Jackson advised that he had already broken up some of the $5,000 in illegal contributions that he received from [4773] on 10/11/2011. Jackson stated that he thus far had used seven people from San Francisco in order to funnel $500 contributions." Opp'n Ex. 7 at 1. The same 302 report states that on October 11, 2011 "Jackson instructed [4773] to make the check payable to 'Jackson Consultancy' as a way to hide the fact that the funds were really intended for Senator Yee. Jackson advised that he would break the $5,000 into ten (10) individual $500 contributions, and that he already had some people lined up." Id. Jackson complains that the government "only relies on 302s," KJ Reply at 9, but the 302 is sufficient to support Quinn's statement.
10. Agent Quinn asserts that by October 14, 2011, 4773 "had contributed $11,000 to Senator Yee's campaign." KJ Mot. at 6 (citing First Quinn Aff. at 22).
Jackson argues that this is false because "the affidavit makes clear that by that date, [4773] donated $500 from himself, arranged for his wife to donate $500, arranged for 10 undercover agents to donate $500, and written a check to [Jackson] for consulting fees for $5,000." Id.; KJ Mot. Ex. A at 3. He concludes that Quinn "contradicted his own representation by stating that the agent 'raised' $11,000 by that date." Id. (citing First Quinn Aff. at 22). The government responds that because the Affidavit makes clear every source of the money raised by 4773, it cannot be misleading. The Court agrees. Although this representation suffers from the same "raise versus contribute" problem discussed above, because Quinn goes on to say that "4773 discussed the fact that he had already raised $11,000," First Quinn Aff. at 22, and because the Affidavit does, in Jackson's own words, "make[] clear" where the money came from, it is not misleading.
11. Agent Quinn misrepresents Yee's October 14, 2011 conversation with [4733] when he says that Yee acknowledged that 4773's donations were "too much money . . . not to get something." KJ Mot. at 6.
Jackson argues that Yee did not acknowledge that statement by 4773 but did acknowledge that 4773 believes that he cannot ask for a quid pro quo. Id. Jackson's transcript of this conversation omits Yee's response of "Right" to 4733's statements. See Chatterjee Decl. Ex. 8 at 1. The government's transcription more accurately depicts the conversation as:
UCE: With that amount of money Senator, that's, uh, you know that's the thing for me, and then the other thing is, uh, I'm not in the (UI) . . . to not get something back and I understand the way to play, I understand um, I can't put you in that position where I, you know, I need to ask for something in return, but that's, um, it, it's, it's too much money.Opp'n Ex. 8 at 4 (transcript); Opp'n Ex. 9 (audio). One might be able to persuade a jury that Yee's "Right" simply meant "I'm listening," see KJ Reply at 10, but even "I'm listening" is an acknowledgment. Quinn's representation was not misleading.
Yee: Right.
UCE: And not get something (UI).
Yee: Right, right, right. Um hmm.
12. Agent Quinn states that "[t]hroughout the remainder of the 2011 Mayoral campaign JACKSON and Senator YEE's contacted [4773] via telephone to ask for additional contributions beyond the campaign finance limit." KJ Mot. at 6 (citing First Quinn Aff. at 24).
Jackson argues that this is false and that Quinn fails to provide any specifics. Id. The government responds by pointing to two conversations. Opp'n at 20-22. In the first, on November 3, 2011, asked 4773: "I was wondering if you could possibly raise us any [UI] dollars?" Opp'n Ex. 10. That conversation shows soliciting funds but not specifically "additional contributions beyond the campaign finance limit." See First Quinn Aff. at 24. In the second conversation, on November 5, 2011, Jackson called 4773, and said, "Man hey, every dollar counts and what you did was big too, so, and he's, he's grateful for that, uh, but we, you know, we got, we gotta make this thing happen man." Opp'n Ex. 11. 4773 responds, "Okay, uh give me a call." Id. While the conversations show and Jackson soliciting funds from 4773, neither show them explicitly soliciting funds beyond the campaign finance limit. This representation is therefore misleading and the Court strikes it.
13. Agent Quinn mischaracterizes a January 18, 2012 conversation between Yee, and 4733 about a request for additional donations to retire Yee's campaign debt. KJ Mot. at 6-7 (citing First Quinn Aff. at 25).
Jackson argues that in that conversation, Yee acknowledged that 4733 had already contributed $500 and states "He cannot give, you can't give." Chatterjee Decl. Ex. 9. Jackson asserts that in that conversation, when 4733 asks how he can raise money without donating personally, they discuss bundling money like 4733 did before, by gathering smaller checks from individual donors. KJ Mot. at 7. Quinn's characterization of this conversation is consistent with Jackson's version, and closely tracks the transcript. See First Quinn Aff. at 25 ("Senator YEE acknowledged that UCE 4773 had already contributed the legal maximum amount. In light of that fact, UCE 4773 asked how he could make a $10,000 contribution, to which Senator YEE responded to the effect of: 'Just give the checks to her [ ], just how we did it before."); Chatterjee Decl. Ex. 9 ("Just give the checks to her. Just how you did it before in the campaign."). There is nothing misleading about that.
14. Agent Quinn states that "[o]n February 15, 2012, [4773] mailed a $2,000 check to JACKSON. [4773] and JACKSON discussed that this payment, which was made to JACKSON personally, was the first of what were going to be under-the-table, monthly payments to JACKSON" for helping 4773 build his business interests in San Francisco." KJ Mot. at 7 (citing First Quinn Aff. at 29).
Jackson argues that this is false—that during this call, Jackson and 4773 discuss a contract for consulting services and 4773 informs Jackson that he already mailed a check for $2,000 for consulting services; there is nothing about the arrangement being "under the table." Id. The government concedes that there was no use of the term "under the table," but argues that there was plenty in the communications between Jackson and 4773 to indicate criminality. Opp'n at 23-24 (citing September 26, 2011 conversation in which 4773 told Jackson that "I can get some, some cash through you and then you can just break it up however you, you know, y'all need to break it up," Opp'n Ex. 3 at 6; January 27, 2012 conversation in which 4773 told Jackson that he did not want Jackson talking about their business with other people—"don't take this as I'm trying to say I'm you know goody two-shoes straight up clean, um, Mr. Clean, you know, I'm, uh I'm, I'm, I'm part of the game," Opp'n Ex. 13 at 8; a February 15, 2012 conversation in which 4773 told Jackson "I don't wanna do the contract um, we'll we'll do some stuff on the side for awhile and um, I'll explain my reasoning when we sit down and, and talk and I'm gonna take care of you but. . . What I don't wanna do is uh, set it up on a contract," Opp'n Ex. 32; and the September 30, 2012 conversation in which 4599 described himself as part of a criminal organization with 4773 as a money man, First Quinn Aff. at 51). The government concludes that there was no doubt that the nature of the retainer was "not on the 'up and up.'" Id. at 24.
Jackson has the better argument. While 4773 and Jackson clearly established "a relationship of payments without any legal contract," id. at 24, and that 4773 was involved in some criminal activity, it overstates matters to equate payments made not pursuant to a contract with payments "under the table." Under the table suggests that the payments would not be properly reported, and that is not obvious from the absence of a contract. Accordingly, the Court finds this representation misleading and strikes it.
15. Agent Quinn asserts that, in a conversation between Jackson and 4773, Jackson "stated that they are trying to get [an individual] on the Commission' which will be good for us." KJ Mot at 7 (citing First Quinn Aff. at 42).
Jackson argues that this is false and misleading because it implies that Jackson was exerting political pressure to get an individual on the Commission, but Jackson was not involved in placing someone on the Commission. Id. Jackson explains that the "they" in that conversation was a third party. Id. (citing Chatterjee Decl. Ex. 11). The government argues that the conversation clearly referred to an "unspecified 'they'" and that "at no point in the Wire 3 affidavit did Agent Quinn allege or imply that Jackson was in any sort of position to put someone on the Commission himself." Opp'n at 25. The transcript itself shows Jackson discussing the Golden State Warriors' potential move to San Francisco, and stating, "And so, talked to her a little bit and I think she's going on a, they're trying to get her on a commission. It would be good for us and then you know see how we can look at you know going after some of that stuff." Chatterjee Decl. Ex. 11. This is a close question but Defendant makes a plausible argument that Quinn's statement "JACKSON stated that they are trying to get on the ' Commission'" suggests that Jackson was trying to get on the Commission. Because the representation is so insignificant in establishing probable cause, the Court strikes it.
16. Agent Quinn asserts that on May 30, 2012, at a lunch with Jackson, 4773 and 4599 discussed "their investments together, including [4599's] operations 'up north'—a reference to his purported marijuana grows." He also asserts that 4599 said that his "father wanted to make sure that [4773 was] cleaning the finances of Madison International." KJ Mot. at 7-8 (citing First Quinn Aff. at 42).
Jackson argues that Jackson was not part of the "up north" conversation or the Madison International conversation and that neither 4599 nor 4883 used the word "marijuana" in describing the business up north." Id. This argument lacks merit. Though neither speaker used the word marijuana, Quinn did not represent that they did. Nor did Quinn suggest that Jackson participated in the conversation between 4599 and 4773; rather, he states that "the two UCEs discussed their investments together" and "[t]he UCEs also discussed business with [4599]'s 'family' back on the east coast." First Quinn Aff. at 42. The Affidavit therefore accurately identified the speakers; the significance from the government's perspective is that Jackson was present. Opp'n at 25-26. Accordingly, the representation was not misleading.
17. Agent Quinn asserts that on September 19, 2012, during a call with 4773, "JACKSON explained that the $10,000 will be broken up into $500 donations to [candidate], who ran for . According to Jackson, [candidate] would then turn the money over to Senator YEE." KJ Mot. at 8 (citing First Quinn Aff. at 50).
Jackson argues that this is false and misleading, because in the same call, Jackson asked 4773 to donate to the candidate, and in return she will raise money for [Senator Yee]." Id. He reasons that Jackson did not say that the candidate would pass the same money through to Yee. Id. This argument is unavailing. Although the first thing Jackson says in the conversation is that if 4773 gave money to she would "raise money for" Yee, the transcript next has him saying: "But you can only still give $500 to her per person, so we can get more people to give more to her and then she will turn around and give it to Leland." Chatterjee Decl. Ex. 13 (emphasis added). He further explained: "It's like an even swap." Id. Jackson objects to this reading (saying the government "takes an[] improper pronoun reference out of context"). KJ Reply at 13 (citing Chatterjee Decl. Ex. 13). But given Jackson's own words, the representation was not misleading.
18. Agent Quinn omitted two instances of exculpatory statements, such as Jackson telling 4599 on May 25, 2011 that the limit is $500 and must be paid by check or credit card, and Yee telling 4773 on October 14, 2011 that under the law the contribution limits do not apply to ballot measures. KJ Mot. at 8 (citing Chatterjee Decl. Exs. 3, 8).
Jackson argues that the November 13, 2012 Affidavit omitted substantial exculpatory evidence, but then cites just these two examples. KJ Mot. at 8-9. He cites United States v. Stanert, 762 F.2d 775, 780-81 (9th Cir 1985), amended in 769 F.2d 1410 (9th Cir. 1985), for the proposition that "By reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw, To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning." The Court was not misled by the absence of those two statements. The Affidavit included other statements by the Defendants that are consistent with innocence, see, e.g., First Quinn Aff. at 25 ("Senator YEE acknowledged that UCE 4773 had already contributed the legal maximum amount."), and the omitted statements do not change the Court's view of probable cause.
19. Government Failed to Disclose the Nature of 4773's Misconduct
Jackson argues that the government failed to disclose the nature of 4773's misconduct. KJ Mot. at 9-10. Jackson is not satisfied with the footnote in the November 13, 2012 Affidavit, which notified the Court of "an internal FBI program review related to the financing and financial record-keeping of the undercover program under which [4773] was operating," or the disclosure in the February 8, 2013 application that there was a "pending internal investigation by [the] FBI regarding [4773]." Id. (citing First Quinn Aff. at 13 n.2; Second Quinn Aff. (Chatterjee Decl. Ex. 19) at 10 n.1. Because the 4773 investigation is not relevant or material to this case, this argument fails.
Jackson next argues that the Affidavits in support of the extensions to the wiretap filed on February 8, 2013, April 3, 2013, May 9, 2013, and July 1, 2013 "relied heavily on allegations from earlier wiretaps and are subject to the same defects as the earlier affidavits." KJ Mot. at 11-12. And he argues that those subsequent Affidavits contain six additional material misrepresentations.
20. Each Affidavit contains the same "La Cosa Nostra Family" representation. KJ Mot. at 12.
Jackson argues again that he has located no recording with such a statement. Id. The government's response is again that "Jackson could have had no reasonable doubt about the nature of [4599's] cover story." Opp'n at 27. The Court again finds that the specific statement about La Cosa Nostra goes too far, and strikes it.
21. Agent Quinn asserts that on November 16, 2012, 4773 stated "it is too much money not to get something out of." KJ Mot. at 12; Reply at 15 (citing Chatterjee Decl. Ex. 19 (hereinafter "Second Quinn Aff.") at 19).
Jackson argues that these statements reflect that 4773 was not getting anything out of his donations to Yee. Chatterjee Decl. Ex. 8. The government asserts that this statement is from an October 14, 2011 conversation, and not a November 16, 2012 conversation. Opp'n at 27. Indeed, Wire 4 does not reference any "too much money" statement in its discussion of November 16, 2012. See Second Quinn Aff. at 15-20 (November 16, 2012 section). In his Reply brief, Jackson offers his own transcript of a November 16, 2012 call, in which 4773 states "Pass on to Leland that I understand how, how he sees this, how it works, but I'm not there yet. I mean, I want to get there with him. I'm still on the team. You know, we'll work it out. It's too much money not to get something out of." Reply at 15; Chatterjee Reply Decl. Ex. 31. But language that was not in the Affidavit could not have misled the Court. Moreover, even if that language was in the Affidavit, it would not have been misleading; Jackson could argue to a jury that the statement reflects the agent's frustration with Jackson's refusal to be bribed, but the statement speaks for itself.
22. Agent Quinn asserts that on December 12, 2012, CHS 11 "states 'it' might be lucrative if they could pull it off and asked JACKSON if he Knew anyone on the Oakland City Council." KJ Mot. at 12 (citing Second Quinn Aff. at 72).
Jackson argues that the agent's conclusion that this conversation must be related to "engaging in manufacture and/or sales of marijuana and possible bribery" is misleading as there was no discussion of bribery. Id. The Affidavit indeed states that the CHS "discussed getting a license to manufacture the marijuana in Oakland and then sell it in New Jersey. [The CHS] hoped JACKSON could introduce them to Oakland City Council so that they could work on getting a license to grow in Oakland. JACKSON suggested a meeting with of someone like that, that JACKSON would find out." Chatterjee Decl. Ex. 19 at 72. The government responds that "the conversation could have been regarding bribery or not" and that Quinn's use of the term "possible bribery" was an adequate hedge. Opp'n at 28. The government adds that "it is also a relatively minor . . . point" in the Affidavit. Id. This is a rather minor point, but because there is nothing supporting the notion of "possible bribery," the Court strikes the representation.
23. Agent Quinn states that on January 22, 2013, 4599 "told JACKSON that if Senator YEE wrote the letter [the proclamation for the CKT], he would write the check. Jackson said that he would make it happen." KJ Mot. at 13 (citing Second Quinn Aff. at 91).
Jackson argues that this is misleading because Yee had already agreed to provide the proclamation before 4599 offered to write the check. Id. In response, the government points to a conversation from November 20, 2012, in which Jackson told Yee that 4599 "would clear up the rest of his debt, that he would do 10 [thousand] next week," and asked "if Senator YEE could put in a good word for CHOW somewhere down the line." Second Quinn Aff. at 23. Later that day, Jackson again spoke with Yee about assisting Chow, and specifically about getting Chow's ankle bracelet removed. Id. at 26. Yee stated, "Yeah sure, that ain't gonna happen man. Shit, as much as I want that five thousand, I can't do that man. Shit. Fuck. Shit. Oh shit man. Oh man. Yeah man shit yeah forget that." Id. Yee opined that Chow should just lay low. Id. These conversations provide meaningful context for the January 22, 2013 conversation, and make Quinn's representation about that conversation not misleading.
On January 22, 2013, Jackson, Yee, and 4599 met, and Yee began by asking 4599 how he knew Chow. Chatterjee Reply Decl. Ex. 33. 4599 spoke glowingly of Chow's community service (and briefly about his having "something on this ankle"), and then the following conversation ensued:
4599: So, there was a, well it's the 165th anniversary of the Chee Kung Tong and I thought it would be nice that if we could have some type of proclamation, a letter from your office just acknowledging the Tong. Now, just acknowledging the Tong, not necessarily Raymond [Chow], okay, but I think.Id. at 1-3. Yee left, and almost immediately once the conversation resumed, Jackson stated, "I'll get the letter. I'll get the proclamation." Id. at 4. 4599 responded: "You'll get the proclamation? If he gets it, I'll give him a check. Plain and simple." Id. Jackson responded inaudibly, then stated, "He likes Raymond. He just wants to be safe." Id.
Yee: I think we can do that, the association.
Agent Quinn therefore accurately recounted the conversation—4599 told Jackson that if Yee did the proclamation, 4599 would write a check, and Jackson agreed. Moreover, the November conversation, in which Jackson told Yee that 4599 would give him $10,000 for a different favor for Yee, and the start of the January conversation, which was about Yee, suggest that the proclamation was the favor for Chow that would earn 4599's donation.
24. Agent Maya Clark asserted in April 2013 that "As of the filing of this Affidavit, I am informed that UCE 4773 may be permitted to resume limited undercover work in this investigation. . . To date the [pending internal FBI investigation] has reached no conclusions that would impact the credibility of [4773]." KJ Mot. at 13 (citing Clark Aff. at 16 n.16).
Jackson argues that this is misleading because 4773 was effectively withdrawn from the investigation the previous year. Id. The government responds that "[t]his is nothing more than a rehash of Jackson's previous arguments regarding the investigation." Opp'n at 28. Jackson agrees that "[i]t is." KJ Reply at 17. For the same reasons that the previous arguments about the 4773 investigation fail, this argument also fails.
25. Agent Clark describes a February 14, 2011 call between CHS 11 and Jackson discussing Jackson's consulting business, and concludes that it "illustrated JACKSON attempting to secure CHS 11 projects and favorable treatment from politicians in exchange for monetary payments." KJ Mot. at 13 (citing Clark Aff. at 24).
Jackson argues that this is misleading as it pertained to Jackson's efforts to secure a consulting contract with a prominent Bay Area company and had nothing to do with his work for CHS 11. Id. He adds that there was no discussion of favorable treatment in exchange for donations. Id. (citing Chatterjee Decl. Ex. 17). This argument is unavailing. The conversation included discussion of Jackson needing to get the WellTech people to San Francisco to have meetings with department heads about technology contracts (per Yee's instruction), Jackson saying "you can do it as long as it's legit and you got, ah, no other BS attached to it" and the CH responding, "I don't know, I don't know you got [UI] is legit. I think our toes is on the line. Have to be careful of what you do." Chatterjee Decl. Ex. 20 (hereinafter "Clark Aff."). While one could argue an innocent interpretation of the conversation to a jury, see, e.g., KJ Reply at 17 (arguing that the "best be careful what you do" line was "entirely unrelated to 'projects and favorable treatment'"), Clark's assertion that she "believe[d] this conversation illustrated" political malfeasance is not misleading.
The government notes that this is the only statement Defendants challenge in Wire 5, and argues that Defendants must concede that the rest of the Affidavit was accurate. Opp'n at 29.
B. Probable Cause
Defendants argue that, stripped of the material misrepresentations they identified, the Affidavits fail to establish probable cause. KJ Mot. at 10-11. As an initial matter, the Court is not stripping the Affidavits of all of the representations Jackson challenges. The challenged statements that remain in the Affidavits include (numbered as above): (2) Jackson soliciting 4773 to make unlawful payments; (6) Jackson telling 4599 that if he wanted to contribute $5,000, he could place the money in different accounts; (9) Jackson telling 4773 that he broke money up among straw donors; (11) Yee acknowledging 4773's comment about "too much money not to get something"; (17) Jackson stating that donations to another candidate will be turned over to Yee; and (23) Yee agreeing to provide the proclamation to the CKT, 4599 saying that he would write a check for that proclamation, and Jackson agreeing. Though the Court strikes a number of the challenged representations, those representations only matter if (in addition to having been made knowingly and intentionally—a showing that has not been made here), they were "necessary to the finding of probable cause." See Franks, 438 U.S. at 155-56. Given the remainder of the Affidavits, they were not.
Yee also argues that Wire 3 should have named as Target Offenses several of the offenses with which Yee was eventually charged. Yee Mot. at 5. But Yee provides no authority stating that this is a requirement, and it does not appear to be. See United States v. Licavoli, 604 F.2d 613, 620 (9th Cir. 1979) ("the content of the communications to be intercepted cannot be known in advance, and the authorizing order need not describe every aspect of the criminal activity expected to be revealed by the surveillance. 'The order must be broad enough to allow interception of any statements concerning a specified pattern of crime.'").
To that end, the government argues persuasively that Jackson's focus on the distinction between "raising" money and "contributing" money is beside the point. Opp'n at 31. Defendants were not charged with violating local campaign finance laws for soliciting donations over the $500 limit; they were charged with honest services fraud. Id. "Therefore, even if every allegation regarding campaign contributions related to the $500 limit was false—and they were not—it would not materially change the probable cause described in the Wire 3 Affidavit and found by this Court: that probable cause existed that Jackson and Yee were trading official action by Yee for money and were utilizing the Target Telephones to carry out that scheme." Id. Other representations remaining in the Wire 3 Affidavit provide probable cause for that offense. For example: • On October 14, 2011, 4773 and Yee met and discussed the fact that 4733 had already raised $11,000 and was prepared to give another $10,000 but had some concerns. He said that he knew he could not give $10,000 as a campaign contribution, and was concerned with the consequences of getting caught. Yee told him that he should "cover [his] tracks" and that if he did not think he could do that, then he should not contribute. First Quinn Aff. at 22-23. • On June 19, 2012, Jackson's reassurances to [4733], while asking for further contributions: "4773 asked how Senator YEE felt about [4733's] statement that he needed to get something out of it. JACKSON stated that Senator YEE was 'fine with that.' JACKSON stated that Senator YEE told Jackson to tell [4773] 'whatever he could do to help you,' and that [4773] has been committed to Senator YEE 'and [Senator YEE] wants to find a way to help." Id. at 43. • On September 4, 2012, 4773 met with Yee and Jackson. 4773 tied his providing another $10,000 to Yee and Jackson to Yee's assistance with the California Public Health Department: "if you can do that then 10 is no problem at all." Yee also discussed how another Secretary of State had been caught in a public corruption scandal and commented "if it was done, just do it the right way and don't get caught." Id. at 47-48. • On September 10, 2012, Yee asked for the telephone number of the individual at the Health Department that 4773 wanted him to contact. Id. at 48-49. • On September 19, 2012, 4773 spoke with Yee over Target Telephone 2 4773 requested that Yee write a letter to the Health Department, and they discussed the contents of that letter. There were then calls between Target Telephones 1 and 2 (Jackson and Yee). Yee then called 4773 back and gave 4773 Yee's wife's email address to send a draft of the letter. 4773 asked Yee how much debt he had remaining and Yee said $32,000 and he was hoping to get $10,000 from 4773. Then Yee described the donation swap with the other candidate. Id. at 49-50. • On September 20, 2012, 4773 and Yee discussed the letter that Yee would write to the Health Department. Id. at 51. • On September 24, 2012, 4773 and Jackson discussed the version of the letter that 4773 sent to Yee and they discussed being careful about how they discussed the quid pro quo around Yee. 4733 said, "Between you and me, Keith, and you know I won't say this to him, if he can get that letter done, I can hook you up. We'll do it like that." "JACKSON responded, 'okay, I'll just tell him to get that damn letter out, man." "4733 said he would not put any more money out there unless he was getting something. JACKSON agreed, stating 'I understand that and I think he understands that too." Id. at 52-53. • On October 1, 2012, Jackson solicited money from 4773 and they discussed Yee's comfort level with 4773 and what 4773 wanted done. Id. at 57. • On October 17, 2012, Jackson and 4773 discussed Yee making the call to someone from the Health Department. Id. at 58. • On October 18, 2012, Yee and 4773 discussed Yee making the call for 4773 to a person from the Health Department. Id. at 58-59. • On October 18, 2012, Yee made the call on behalf of 4773 to the person he believed worked for the Heath Department. Id. at 59-60.
Yee argues that the government "fails to establish how this interim call rises to the level of probable cause." Yee Reply at 3. That Yee and Jackson likely spoke with one another between two calls between 4773 and Yee about Yee's doing a political favor for 4773 does not alone demonstrate probable cause for a money-for-services scheme, but it does support the idea that Yee and Jackson conspired.
Jackson does not respond substantively to these representations, instead arguing weakly that "the remaining allegations the government cites to establish probable cause . . . are so vague and incomplete that, by themselves, they do not rise to probable cause." KJ Reply at 3; see also KJ Mot. at 10-11 (characterizing Jackson's conversations with 4599 as "ranging from social banter, to the discussion of legitimate business opportunities" and his role vis-a-vis 4773 as "[seeking] out legitimate business opportunities . . . pursuant to a $2,000 monthly consultancy agreement."). Yee, too, is unconvincing when he declares: "[t]he discussions that the UCEs describe as having with Yee are innocuous, and conversations that all political candidates have with their potential donors while running for office." Yee Mot. at 8; see also Yee Reply at 2 ("typical of a candidate soliciting donations as they run for office."). The conversations listed above show Yee and Jackson not vaguely conversing with potential donors, but fairly explicitly offering political action (lobbying the Health Department) in exchange for money. The Court therefore finds that the representations are sufficient to establish probable cause that Defendants were committing, had committed, or were about to commit conspiracy with regard to mail fraud and honest services fraud. See 18 U.S.C. § 2518(3)(a).
Yee attaches transcripts of these conversations to Lassart's Reply Declaration, but does not contend that the government's representations of them were inaccurate.
Yee makes an additional challenge to probable cause, arguing that the government also fails to establish the second factor, that communications relevant to the conspiracy would be intercepted through the wiretap. Yee Reply at 4 (referencing 18 U.S.C. § 2518(3)(b)). Yee asserts that there was a "lack of use of Target Telephone #2" (Yee's phone). Yee Mot. at 7. In his Reply, Yee explains that the government knew that most of Yee's calls would be with Jackson, and that such success, combined with "the consistent success of [4773's] contact with both Yee and Jackson" negated any need to tap Yee's phone. Yee Reply at 4. This is more of a necessity argument than a probable cause argument; clearly there were enough calls involving Target Telephone #2 to demonstrate that "communications relevant to the conspiracy would be intercepted through the wiretap." See 18 U.S.C. § 2518(3)(b); see, e.g., First Quinn Aff. at 49-50 (on September 19, 2012, calls between 4773 and Yee over Target Telephone 2, interspersed with calls between Target Telephones 1 and 2 (Jackson and Yee)).
Yee concedes that the third factor—that the individual who is the focus of the wiretap investigation will use the tapped phone—has been met. Yee Reply at 4 (referencing 18 U.S.C. § 2518(3)(d)).
The Court therefore finds that the Affidavits establish probable cause.
C. Necessity
Defendants also argue that the government failed to establish necessity for the wiretaps. Defendants' necessity argument has four main pieces, none of which is persuasive.
1. Carry-Over and Boilerplate Language
First, Yee argues that the government simply carried over necessity arguments from earlier wiretap applications filed against other conspirators with regard to other telephones. Yee Mot. at 9. This is not true of the Wire 3 or First Quinn Affidavit, though, as the first two wiretaps were of Defendant Nieh's telephone and car. See Opp'n at 40-41. Yee's biggest complaint about Wires 4 through 7 (the November 2012, February 2013, April 2013, May 2013, and July 2013 Affidavits) is that they rely extensively on boilerplate, generic language. Yee Mot. at 9-11. Yee quotes eight representations, which he asserts "are found verbatim in every Application submitted, starting with November 2012." Id. at 10. Those representations include "I do not believe that the CHSs can achieve all of the objectives of the investigation without interception of wire and electronic communications" and "Based on my training and experience, I know that physical surveillance has significant limitations." Id. No matter.
Yee also objects to the Affidavits referring directly to earlier Affidavits. Yee Mot. at 17-20 ("The frequent repetitions in the 2013 Applications indicate these Applications are doing little more than rehashing their prior arguments."). Yee cites United States v. Santora, 600 F.2d 1317, 1322 (9th Cir. 1979) for the proposition that "[r]eference to the previous affidavit was insufficient to meet the requirements of Section 2518(1)(c)." But in that case "[t]he affidavit in support of the order failed to recite that any specific efforts had been made by federal agents to investigate the activities of those persons whose telephones were to be tapped to discover each of those individuals' complicity in the offenses." Santora, 600 F.2d at 1322 (emphasis added). That is not the case here.
"The presence of conclusory language in [an] affidavit will not negate a finding of necessity if the affidavit, as a whole, alleges sufficient facts demonstrating necessity." United States v. Torres, 908 F.2d 1417, 1423 (9th Cir. 1990); United States v. Carneiro, 861 F.2d 1171, 1177 (9th Cir. 1988) ("While it is true that some of the statements in the affidavit are mere conclusions, the facts set forth in the affidavit meet the necessity requirement when examined as a whole and in a common sense fashion."). Although the Affidavits here include the conclusory language Yee notes, they also included detailed facts demonstrating necessity. See, e.g., First Quinn Aff. at 70 (boilerplate language stating "The following is a list of the investigative techniques that either have been used or have failed, reasonably appear unlikely to succeed if they are tried, or are too dangerous to be attempted" followed by the sentence, "I discuss details, both positive and negative, about the use of each technique with regard to JACKSON, Senator YEE, and the other Target Subjects and Interceptees, the success or failure of the technique, and what the technique has accomplished or failed to accomplish with regard to the goals and objectives of this investigation.").
Yee also argues that even if necessity exists on the face of the Affidavits, suppression is warranted because the Affidavits contain false or misleading statements material to the finding of necessity—here, "that specific efforts had been made by federal agents to investigate the target(s) of the Application, when in fact the purported efforts were just the same generic contentions asserted earlier." Yee Mot. at 16-17. Because the boilerplate language argument fails, this argument does, too.
Accordingly, the Court rejects Defendants' arguments about references to previous wiretaps and the use of boilerplate language.
2. Confidential Human Sources
Second, Yee argues that, despite knowing the limitations of its two CHSs—CHS 11 and CHS 12—the government "made no effort to locate new CHSs." Yee Reply at 11-12 ("[t]he 2013 Affidavits state time and time again 'In this investigation, agents have constantly attempted to identify confidential human sources,' while indicating agents have been doing no such thing."). Yee complains that the government failed to indicate whether individuals with even partial knowledge might have been recruited. Id. at 13. And he argues that the Affidavits did not include the "peculiarities of the Target Subjects that prohibited penetration of their relationship by informants." Id. at 14 (citing United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir. 1977)). Jackson also complains that "the government failed to identify or pursue a single additional potential cooperating witness." KJ Mot. at 19.
Jackson goes so far as to suggest that there were at least two potential CHSs whom the government should have pursued: someone who previously served as a source for the FBI from 2007 through 2008, and an "individual with close ties to who previously cooperated with the FBI by wearing a recording device to meet with one of the identified Target Subjects and Interceptees in an unrelated matter." KJ Mot. at 18-19 (citing First Quinn Aff. at 78). He says of the former, "[w]hy the government did not attempt to utilize this source in this investigation is unclear." Id. at 18. But the government did explain why it did not pursue the previous source. See First Quinn Aff. at 78 ("I have decided not to [approach that individual], as [that individual] has not previously fully demonstrated a willingness as a source to actually provide information. Furthermore, as [that individual]'s conduct is the subject of the investigation into the ongoing Target Offenses in this Affidavit, it is too dangerous to the overall investigation to approach [him/her]."). The government also explains that the individual who wore a "was " and that there is no reason to believe "Yee might have confided with a about his own illegal campaign donations schemes." Opp'n at 44.
The government responds that it is not required by 18 U.S.C. § 2518(1)(c) to repeat failed procedures once it has tried them—it is sufficient that each Affidavit identified how the government had used particular informants, how those informants had had some success, and how and why they failed to achieve the overall goals of the operation. The government is correct. See Rivera, 527 F.3d at 902 ("'law enforcement officials need not exhaust every conceivable alternative before obtaining a wiretap.'") (citation omitted).
Accordingly, the Court reject Defendants' arguments about CHSs.
3. UCEs and Just Asking Keith Jackson
Third, Yee focuses on the Affidavits' assertions that the use of undercover agents (UCEs) "has been the most successful investigative tool to date" but that the UCEs "have failed to fully achieve the goals of the investigation." Yee Mot. at 14. He complains that the Affidavits fail to "specify precisely why the UCEs are unable to continue in their respective roles and gather more evidence against the Target Subjects." Id. at 15. Yee acknowledges that the Affidavits explain that one of the UCEs has "gained a limited amount of trust with the Target Subjects" but that the Target Subjects do not "directly discuss all of their criminal activities with the UCE." Yee Mot. at 15. But he points to incriminating statements made in the presence of the UCEs (which he innocuously refers to as "conversations involving the charges"), and argues that the Affidavits do not say why the UCEs are unable to continue in their roles and gather more evidence. Id.
Relatedly, Jackson argues that the government "should have been required to show why it would be unable to obtain all of the information relayed on the telephone intercepts by simply asking Mr. Jackson questions." KJ Mot. at 18; see also KJ Reply at 1 ("the government failed to show that its agents could not learn from Mr. Jackson what they wanted simply by asking him. By the time the government sought the wiretaps, Mr. Jackson viewed the agents as his business clients and never refused to meet with them or answer their questions.").
The government begins its response on this point by noting that the First Quinn Affidavit did discuss having considered, and rejected as unwise, bringing Jackson before a grand jury to ask him questions. Opp'n at 45 (citing First Quinn Aff. at 85 (explaining concerns about Jackson taking the Fifth, and about a grand jury subpoena alerting Jackson to the investigation)).
This argument lacks merit. That Keith Jackson was happy to have meetings with the UCEs does not mean that the UCEs could have just asked Jackson for all of the desired details about the charged scheme. Jackson and Yee did not make the UCEs privy to all of their discussions. As the government explains, the UCEs first met Jackson in 2010, and the first discussion of campaign contributions in excess of contribution limits was in May 2011; by November 2012, "despite countless meetings and calls with Jackson, the goals of the investigation were still unaccomplished." Opp'n at 45.
The First Quinn Affidavit explained that:
[W]hile JACKSON and repeatedly have reassured UCE 4773 that YEE and are made aware of [4773]'s 'bundled' and conduit campaign contributions in excess of the $500 limits, and that they are grateful for them, those conversations with YEE and do not occur in the presence of [4773]. This remains the case even though [4773] has been working as an undercover in this investigation for approximately one year."First Quinn Aff. at 73. The Affidavit also explains:
[I]t is clear that JACKSON is a part of Senator YEE's inner circle of trust, and discusses a wide range of criminal activities with him. For example . . . JACKSON appears to frequently speak with Senator YEE about criminal activity related to the retirement of his debts and the accumulation of money, and providing consideration to UCE 4773 in exchange for payments to Senator YEE's campaign. JACKSON has repeatedly assured UCE 4773 that Senator YEE is aware of the nature of the manner of receiving the contributions because JACKSON has shared that with Senator YEE and that, therefore, Senator YEE has told JACKSON he is grateful to UCE 4773 and willing to provide official acts for UCE 4663. . . .Id. at 74-75. Such representations explain sufficiently why just asking Keith Jackson for the details of his wrongdoing would be inadequate, and why the government needed something more than UCEs to intercept Jackson and Yee's conversations. Accordingly, the Court rejects Defendants' arguments on those points.
In addition, on a number of occasions, pen data shows that shortly after UCE 4773 and JACKSON spoke over Target Telephone 1 about consideration UCE 4773 expected in exchange for any further contribution to Senator YEE, e.g., a letter of recommendation or a phone call to a state agency, there has been contact between Target Telephone 1 and Target Telephone 2, Senator YEE's telephone. That indicates that JACKSON and Senator YEE were discussing providing official acts in exchange for UCE 4773's money. However, it is necessary to intercept the actual conversations between JACKSON and Senator YEE to determine Senator YEE's knowledge of, and involvement in, criminal activity.
4. Traditional Investigative Techniques
Finally, Jackson argues that the government was deficient in its description of the shortcomings of several traditional investigative techniques. KJ Mot. at 19-21. Specifically, he mentions telephone records analysis, trash records, mail covers, internet records, and physical surveillance. Id. at 17-21.
As to phones, the First Quinn Affidavit explained that agents had obtained multiple pen registers and trap and trace devices on target subjects and interceptees. which revealed that there were "communications between Jackson, Yee, and the other Target Subjects and Interceptees." First Quinn Aff. at 81. That Affidavit also explained the use of cell site data to ascertain the approximate whereabouts of individuals. See Opp'n at 47. But it also explained the limitations of those telephone records techniques in not revealing the contents of calls, and provided an example of multiple calls between Jackson, Yee, and Yee's shortly after a call with 4733, but that because the content of those calls were unknown, Quinn could only speculate about their significance. First Quinn Aff. at 61. That is an adequate showing. Blackmon, 273 F.3d at 1210 ("must specify why, in the particular case at hand, these inherent limitations will be insufficient").
Quinn set forth three examples of why trash searches were not feasible (including that Yee shredded his trash and Jackson share trash facilities with many residents in his multi-unit building). First Quinn Aff. at 82. Quinn also explained why mail covers and email search warrants would be unproductive. Id., id. at 85-86. Jackson's lone paragraph challenging physical surveillance as mentioning "some limited success" but "omit[ting] any further explanation" in favor of "boilerplate statements," KJ Mot. at 21, is simply wrong. Quinn detailed some of the successes that agents achieved through physical surveillance (such as following one of Yee's family members suspected of receiving illicit payments) but explained how at least one interceptee wanted to conduct meetings in private places like offices in San Francisco City Hall. First Quinn Aff. at 79. There is also plenty of evidence of Yee and Jackson making calls from their homes. The representation that physical surveillance was inadequate to achieve the investigation's goals was sufficient.
Jackson also argues unpersuasively that the reason for requesting a wiretap was not necessity but the unavailability of the government's primary investigator, 4773. KJ Mot. at 21-22. The Affidavits demonstrate that as 4773's role diminished, the government replaced him with other UCEs and informants (4180 and CHS 11). See, e.g., Second Quinn Aff. at 107 ("describing CHS 11 taking on increased role during investigation of 4773); Wire 5 Aff. at 87 ("The importance of CHS #11 has increased significantly as UCE 4773 was temporarily removed from the investigation due to FBI's ongoing program review"); id. at 90 (describing CHS 11's efforts to introduce UCE 3869 into role that 4773 had previously assumed).
Accordingly, the Court rejects Defendants' arguments about traditional investigative techniques, and about necessity generally.
D. Minimization
Finally, Defendants argue that the government failed to minimize the interception of irrelevant conversations, and that the proper remedy for this conduct is to suppress all of the evidence. Jackson complains that "[o]f the over 8,000 intercepted communications identified in the status reports, only a fraction of these, roughly 16% were deemed pertinent. And the government minimized only 6% of the intercepted communications." KJ Mot. at 22-23. Given such numbers, he concludes that the government must have "failed to comply with its minimization requirements" and asks the Court to suppress all intercepts. Id. at 23. Yee points to the 6,929 calls intercepted on his telephone, noting that only 573 (slightly over 8 percent) were "pertinent" and that only 665 were minimized (meaning that the government minimized just 10% of the calls). Yee Mot. at 21-22. He concludes "that the government identified less than ten percent of calls as pertinent to the investigation evidences that they have not complied with" the minimization requirements in the Court's orders authorizing the wiretaps. Id. at 22 (quoting language in each order: "It is further ordered that the monitoring of wire communications must terminate immediately when it is determined that the communications are unrelated to communications subject to interception under 18 U.S.C. Chapter 119."). Yee, too, demands that the government's "pattern of failing to minimize an overwhelming majority of calls, many of which are non-pertinent," lead to suppression of all conversations recorded from the Target Telephones, and all subsequent applications that rely on the initial submissions. Id. at 24-25.
Yee also argues that the majority of the calls designated by the government as pertinent had nothing to do with the offenses described in the wiretap orders. Id. But his argument depends on characterizing topics like "Yee's fundraising efforts" and "campaign donations" as nonpertinent. Id. ("no conversations evidencing . . . money laundering"). Yee takes too narrow a view of this case, which pertained to honest services fraud and money laundering in the context of Yee's fundraising efforts and solicitation of campaign donations.
The government responds that (1) Defendants are misinterpreting the data on minimized conversations and (2) more important, the minimization procedures used were reasonable under the law. The government is correct.
1. Accurate Interpretation of Data
The government's first point is that Defendants's interpretation of the minimization data is flawed, and that an accurate look at the data shows that the government's efforts were reasonable. The government explains that the Fifteen Day Report entry entitled "Total Number of Wire Intercepts" does not mean the number of calls actually monitored/listened to, but "all activity detected" on a particular phone, including not only incoming and outgoing calls, but missed calls, calls resulting in voicemails, alerts signaling that the mailbox was full, and calls in which there was a technical problem with the phone and there was no audio. Opp'n at 55 (citing Opp'n Ex. 20 (hereinafter "Clark Decl.") ¶ 16). Because not all intercepts were monitored, Defendants are incorrect in assuming that the "total number of intercepts" minus the "number of intercepts flagged as pertinent" yields the number of conversations monitored and classified as non-pertinent. Id. at 55 (citing Clark Decl. ¶ 17). In addition, minimization did not occur only on non-pertinent conversations—so the term "number of minimized intercepts" in the Fifteen Day Reports means "all telephone conversations that were monitored and minimized at least at one point during the call." Id. at 56 (citing Clark Decl. ¶ 18).
The government also asserts that what the Court should be focused on is calls longer than two minutes in length. Opp'n at 57. This is because courts have adopted the view that it is not necessary or practical to minimize short calls. Id. (citing United States v. Homick, 964 F.2d 899, 903 (9th Cir. 1992) ("Because many telephone calls are brief in duration, a listener frequently cannot determine a particular call's relevance to the investigation before the call is completed."); United States v. Dumes, 313 F.3d 372, 380 (7th Cir. 2002) (discussing opinions finding that calls of "less than 2 minutes do not require minimization," holding: "We certainly agree that minimization of short calls is not required.")). The government then submits a chart showing that, for the first period of interception on Jackson's phone, the government minimized 38.86% of calls longer than two minutes and 69.14% of calls longer than two minutes that were ultimately determined to be non-pertinent. Opp'n at 58 (citing Opp'n Ex. 27) (note that those percentages are lower for subsequent wiretaps). And the government submits a chart showing that, for that same period, the government minimized 27.24% of calls longer than two minutes and 36.59% of calls longer than two minutes that were ultimately determined to be non-pertinent on Yee's phone. Id. (citing Opp'n Ex. 28). These numbers reflect far better on the government's minimization efforts than the 6% and 10% cited by Defendants.
Defendants have no good response to these numbers and instead rail against the government's late disclosure of this information. See KJ Reply at 24 ("It is troubling that in 'instructing' the Court and Mr. Jackson how the data should be interpreted that the government for the first time provides information to the Court that should have been included in the Fifteen-Day Reports."; id. at 25 ("The Fifteen-Day reports are silent as to the number of communications over two minutes. This information is provided to the Court for the first time in Government Exhibit 27."); Yee Reply at 13 ("The Opposition contains an elaborate analysis of data presented in the government's fifteen day reports based on information not previously disclosed to Defendants or this Court."); id. at 15 ("By its own admission, critical information analyzed in the Opposition in the form of numbers of calls over two minutes and completed calls versus wire intercepts were missing from the Overview Sections presented to this Court."). Defendants might rightly be unhappy, but that does not change what the data shows. --------
Even so, the courts have discounted the usefulness of numbers in evaluating whether minimization was adequate. See, e.g., Scott, 436 U.S. at 140 ("blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to the correct answer. . . there are surely cases. . . where the percentage of nonpertinent calls is relatively high and yet their interception was still reasonable."); Rivera, 527 F.3d at 906 (that only 203 of 4,561 calls were minimized "did not render the DEA's minimization efforts inadequate."). More important to the courts is the process the government followed in monitoring the wiretaps. See Scott, 436 U.S. at 139 ("Congress, by its use of the word 'conducted,' made it clear that the focus was to be on the agents' actions.").
2. Government's Process
The government's second point is that the process it used in minimizing irrelevant conversations was legally adequate. Courts have found employment of a variety of procedures and practices sufficient to establish a prima facie case of proper minimization. Thus, in Torres, 908 F.2d at 1423, the Ninth Circuit approved of the minimization effort where: (1) monitoring agents were instructed on the requirements and need for minimization; (2) monitoring agents were also required to read and sign a typed copy of the minimization guidelines; and (3) a DEA agent and an AUSA made themselves available for consultation on a 24-hour basis. In Rivera, 527 F.3d at 904-05, the Ninth Circuit approved of the minimization effort where (1) all monitors were required to read the wiretap affidavit, court order authorizing the wiretap, and minimization instructions; (2) the AUSA personally instructed the monitors on the first day of the wiretap; (3) each new monitor was required to read the affidavit, order and instructions and confirm by signing the documents; (4) the agent in charge of the monitoring had also been instructed on the minimization provisions; (5) the content of the minimization instructions specified the procedures and allowed listening "for a reasonable time, usually not more than two minutes"; (6) all monitors were told that if they had questions, they could ask the on-site agent or contact the AUSA or lead case agent, who were available at all times; (7) more seasoned agents were available to answer questions; (8) there was an overlap in shifts so that information could be shared; and (9) monitors were instructed not to listen to privileged calls.
The government's process here consisted of the following. • All agents and staff assigned to monitor the Yee and Jackson phones were required to read the Affidavits, which detailed the investigation, the Court's order authorizing the wiretap; and the minimization instructions. Opp'n at 50-51 (citing Clark Decl. ¶ 4). • At the beginning of each period, the FBI held a session during which an AUSA read the minimization instructions out loud to all agents and other personnel who would be involved in monitoring. Id. All attendees were required to sign the instructions. Id. The reading was recorded on audio and any monitor not present was required to listen and sign a copy of the instructions before monitoring. Id. • A copy of the instructions, Affidavit, and court order were maintained in the wireroom at all times. Opp'n at 51 (citing Clark Decl. ¶ 5). • Clark was the Special Agent responsible for operational logistics for all five sessions. Id. (citing Clark Decl. ¶ 4). She was either present in the wireroom or available by phone throughout each session. Id. (citing Clark Decl. ¶¶ 5, 11-12). • The minimization instructions themselves provided correct guidance to the monitors for complying with the requirement that they make reasonable efforts not to listen to conversations unrelated to the illegal activity under investigation. See Instructions (Opp'n Exs. 21-25). Those instructions stated in part, "You should listen to the beginning of each conversation for as long as, ana only for as long as, it is necessary for you to determine if one of the persons named above is a participant and the conversation is pertinent to the subjects and activities targeted by the Court Order, but in any case, usually no longer than a few minutes unless the conversation is pertinent. . . ." Opp'n at 51-52 (citing Opp'n Ex. 21 ¶ 9). The monitor was directed to spot monitor only as long as necessary to determine if the conversation had become pertinent. Id. at 52 (citing Opp'n Ex. 21 ¶ 11). The instructions also addressed how to deal with privileged communications. Id. at 53 (citing Opp'n Ex. 21 ¶ 18). Calls to and from phones known to be associated with Yee's counsel and Jackson's wife were automatically classified privileged and not monitored. Clark Decl. ¶ 19. • Information posted in the wireroom provided contact information for Special Agents Quinn and Garlie, the two primary case agents; Clark; the agents' FBI supervisor; the relief supervisor; the Assistant Special Agent in Charge; District Counsel and Assistant District Counsel; the three AUSAs working on the case; and agents and staff for technical support. Clark Decl. ¶ 5. The information included telephone numbers to reach these individuals twenty-four hours a day and seven days a week. Id. • At almost all times while the lines were being monitored, one of the four case agents was present in the wireroom. Id.
Defendants do not respond in their Reply briefs to the government's argument about process. In any case, it is clear that this process is in keeping with those approved in Torres and Rivera. In light of the minimization process the government followed here, and the revised data based on calls over two minutes in length, the Court rejects Defendants' minimization argument.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendants' motions.
IT IS SO ORDERED. Dated: July 9, 2015
/s/_________
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE