Opinion
CRIMINAL ACTION 3:21-CR-33-6
09-09-2022
UNITED STATES OF AMERICA, Plaintiff, v. STEPHANY RODRIGUEZ, Defendant.
REPORT AND RECOMMENDATION
ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Presently pending before the Court is Defendant Stephany Rodriguez's Motion [ECF No. 561] to Suppress Wiretap Evidence Based on Marital Privilege, filed on November 17, 2021. The United States of America (“the Government”) filed its Response [ECF No. 581] in Opposition to Defendant's Motion to Suppress on November 23, 2021. By Order [ECF No. 896] dated June 15, 2022, Chief United States District Judge Thomas S. Kleeh referred the Motion to the undersigned to prepare a report and recommendation as to the proper disposition of the Motion. On August 29, 2022, the Court held an evidentiary hearing and heard argument on Defendant's Motion to Suppress. The Government presented the testimony of Officer Matthew Custer of the Ranson Police Department, assigned to the Eastern Panhandle Drug and Violent Crimes Task Force. The Defendant did not call any witnesses but did submit the following exhibits into evidence: Exhibit A [ECF No. 561-1]; Exhibit B [ECF No. 561-2]; Exhibit C-1 [ECF No. 561-3]; Exhibit C-2 [ECF No. 561-4]; and Exhibit D [ECF No. 1030-1]. After careful consideration and review of the briefings, the exhibits introduced as evidence, the testimony given, and the arguments offered by counsel at the hearing, the undersigned RECOMMENDS that Defendant's Motion [ECF No. 561] to Suppress Wiretap Evidence Based on Marital Privilege be DENIED for the reasons stated herein.
II. BACKGROUND
Beginning in 2020, investigators with the Eastern Panhandle Drug and Violent Crimes Task Force were involved in a long-term drug trafficking conspiracy investigation. ECF No. 581 at 1. The investigation included a number of cell phones subject to Article III wiretaps. ECF No. 561 at 2. During the course of its investigation, the Government captured at least 49 phone conversations (and one text message) between Defendant Stephany Rodriguez and her husband, Juan De La Rosa-Tejada.See ECF Nos. 561-1, 561-2, 561-3, 561-4 (Exhibits A, B, C-1, and C-2). There were three calls monitored on Target Telephone 11 (240-310-3995). See ECF No. 561-1 at 12; ECF No. 561-2 at 10-11; ECF No. 561-4 at 29-30. There were eight phone calls and one text message monitored on Target Telephone 10 (240-625-6877). See ECF No. 561-2 at 1-9; ECF No. 561-4 at 28, 31-32. And there were thirty-eight calls monitored on Target Telephone 18 (301-331-6812). See ECF No. 561-3 at 1-29; ECF No. 561-4 at 127.
Hereinafter, the undersigned will refer to Defendant Stephany Rodriguez as either Defendant or Stephany, and the undersigned will refer to Juan De La Rosa-Tejada as Juan.
Each phone call or text message between Defendant and her husband Juan was reduced to a separate entry in the Line Reports. See ECF Nos. 561-1, 561-2, 561-3, 561-4. In addition to providing the transcribed conversations, each Line Report includes various information about the communication such as the two phone numbers involved, whether it was a voice call or text message, whether the call was minimized, whether investigators classified the call as pertinent to the investigation, and other details such as the date, time, and duration of the call. Id. According to the Line Reports attached as exhibits by Defendant, none of the calls between Defendant and her husband were minimized. Id. However, all of the calls were marked as pertinent by investigators and all but five of the calls were under two minutes in duration. Id.
Looking at the call duration statistics, ninety percent of the forty-nine calls were under two minutes, and fifty-five percent of the calls were under one minute in duration. Id. For the five calls over two minutes, the average call time was three minutes and eight seconds. Id.
On February 20, 2021, and March 4, 2021, Stephany translated two phone calls for her husband. ECF No. 561-2 at 1-3, 8-9. On February 20, 2021, wire monitors intercepted an outgoing voice call from Juan De La Rosa-Tejada to Dominic Mickens on Target Telephone 10 (240-625-6877). Id. at 1-3. Juan called Mickens after recently supplying him with drugs and told Mickens that his previous payment was short and that Mickens still owed him for twenty grams of heroin. Id. As Juan and Mickens argue over how much money Mickens still owed for the drugs, Stephany joins the call acting as a Spanish translator for Juan and begins discussing with Mickens how much money is owed for the heroin. Id. By the end of the conversation, everyone (Stephany, Juan, and Mickens) agrees on the total debt. Id.
On March 4, 2021, wire monitors intercepted a voice call between Mickens and Juan and Stephany, who were jointly using Target Telephone 10 (240-625-6877). ECF No. 561-2 at 8-9. Mickens asked Stephany to tell Juan to text him the total amount of money he owed for his previous drug purchases. Id. Juan was overheard in the background telling Stephany that Mickens still owes for the "two" “Leni” sold him. Id. Stephany then told Mickens that he still owed the “two” (believed to be ounces of drugs) that Leni sold to him in addition to the 20 grams of heroin provided by Juan. Id. Stephany provided the total for Mickens' current drug debt to be $3,240. Id.
The investigation continued after these two intercepted communications between Juan, Stephany, and Mickens. ECF No. 581 at 8. Juan routinely changed phone numbers, and as investigators identified the new numbers, the Government applied for additional wiretaps. Id. The investigation ultimately culminated in the execution of search warrants at the Top 3 Sources warehouse compound in Hagerstown, Maryland, where investigators uncovered twelve ounces of cocaine base, 8.6 kilograms of cocaine, and 1.02 kilograms of heroin. Id. Additionally, over $121,000 in cash was seized from Stephany and Juan's residence. ECF No. 581 at 8; ECF No. 1032 at 13.
Defendant and her husband Juan were indicted by a Grand Jury sitting in the Northern District of West Virginia on July 20, 2021. ECF No. 40. Defendant is charged in Count Two of the thirty-count Indictment with Conspiracy to Possess with Intent to Distribute and to Distribute Heroin, Fentanyl, Cocaine Base, and Cocaine Hydrochloride in violation of 21 U.S.C. §§ 846 and 841(a)(1). Id.
III. SUMMARY OF TESTIMONY
At the suppression hearing, the Government called Officer Matthew Custer of the Ranson Police Department, assigned to the Eastern Panhandle Drug and Violent Crimes Task Force, to testify as a monitor during the instant wiretap investigation. ECF No. 1032 at 9-10. He testified about the wiretap procedures in this case and discussed aspects of the criminal investigation into Juan, Stephany, and the other thirty-two codefendants named in the Indictment. His testimony is summarized below.
The Assistant United States Attorney held minimization meetings each time the task force received authorization to begin conducting wiretaps on different telephone numbers. ECF No. 1032 at 12. At the minimization meetings, the Assistant United States Attorney would go over the minimization instructions, which details how to properly monitor incoming communications and includes guidelines on privileged calls. Id. at 12-13, 22. The monitors were also provided written copies of the minimization instructions. Id. at 12, 22-23.
If a privilege between two parties was identified by the case agent, investigators or fellow monitors, the monitors would be notified and instructed to mark any calls between the two numbers as privileged. ECF No. 1032 at 21, 23-25, 29. However, if the monitors intercepted calls between married individuals before investigators were able to identify the couple as married, they would conduct a normal screening of the calls and minimize non-pertinent conversations. Id. at 19. If monitors were not yet aware of a privilege and intercepted a pertinent conversation concerning relevant criminal activity between parties later determined to be privileged, they were instructed that the privilege no longer applies to the calls. Id. at 19-20, 26, 29-30, 36. In this case, the monitors were not aware of Juan and Stephany's marriage during the course of the Title III wiretap. Id. at 10, 18, 23. Investigators did, however, determine that another co-defendant, Lenin Luna Mata was married, so monitors were notified of the marital privilege for any communications between Lenin and his wife, Ana. Id. at 13.
At the hearing, Defendant presented her certificate of marriage, dated March 20, 2020, as evidence of her marriage to Juan. See ECF No. 1030-1 (Exhibit D). Officer Custer testified that he was not aware of their marriage until the suppression hearing and that he was likewise not aware of the efforts, if any, that went into investigating whether Juan and Stephany were married. ECF No. 1032 at 10, 24. Officer Custer explained that he was not the affiant on the wiretap applications for Juan and Stephany's phone numbers, so he did not know the extent of any privilege search that was conducted. Id. at 24.
The wire monitoring typically ran twenty-four hours a day. ECF No. 1032 at 10. The monitors would wait by the computer on shifts and get notified when a call was placed; they would then listen to the call live to determine if it was pertinent to the investigation. Id. Monitors were instructed to implement the “two minutes up, one minute down” spot checking practice, where they are allowed to listen to the first two minutes of a phone call to determine whether it was criminal in nature before minimizing the call. Id. at 36, 45. If the first two minutes are non-pertinent, the monitor would minimize the call for one minute, and continue to spot check until the conversation turned pertinent or the call ended. Id. at 45. If the call becomes pertinent, the monitor listens to the call until the conversation becomes non-pertinent and then it is minimized. Id. If the calls were in Spanish, translators would create a transcript that would then be reviewed to determine if the call was pertinent. Id. at 14-15. The case agent would then review all of the conversations that were marked as pertinent. Id. at 33.
Officer Custer reviewed the calls before the hearing and opined that all of them were correctly marked as pertinent and criminal in nature. ECF No. 1032 at 12, 29-30. Defense Counsel brought two calls to Officer Custer's attention and asked him why these calls, specifically, were pertinent/criminal in nature. Id. at 31-32, 35-36. On the call marked as Exhibit A, which was placed on March 23, 2021, Juan said “I didn't hear the phone in the kitchen because I'm back here; I came up to the second floor.” ECF No. 1032 at 31-32; ECF No. 561-1 at 1. Officer Custer explained that as someone familiar with the investigation, he knew that the appliance shop kitchen was used for packaging drugs. ECF No. 1032 at 31-32. And because Juan and Stephany's residence was a single-level apartment, it was clear to monitors that Juan was on the second floor of the appliance shop and made his way to the kitchen, which is why monitors marked it as pertinent. Id. As for the call marked as Exhibit C-1, which was placed on May 11,2021, Officer Custer explained that it was labeled pertinent because it identified that Juan was at the appliance shop and that he was “unloading the truck.” ECF No. 1032 at 35-36; ECF No. 561-3 at 1. Investigators at the time believed that the drugs were being delivered to the appliance shop on a truck. ECF No. 1032 at 35.
Officer Custer also testified that it took some time to get familiar with the drug code used in this case. Id. at 34. For example, conspirators used “manteca” as a slang word for heroin, and there would sometimes be references to Juan being in an “intensive care unit” which was code for the drug packaging kitchen. Id. at 32, 34.
IV. CONTENTIONS OF THE PARTIES
A. Defendant's Motion
Defendant moves to suppress all evidence obtained as the result of wire intercepts of phone conversations between herself and her spouse Juan. ECF No. 561. Defendant argues that all recorded conversations between her and her husband are protected by marital privilege. Id. at 1. Defendant contends that no attempt (or reasonable attempt) was made by the Government to minimize calls protected by marital privilege. Id. According to Defendant, the Government failed to meet the statutory requirement that wiretapping “be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.” Id. at 3-6.
Moreover, Defendant contends that the Government violated the court wiretap order, which granted the authority to intercept and monitor the calls, by failing to minimize privileged communications. Id. at 1, 3, 5-6. While the Order remains under seal, it is sufficient to note that the Court ordered that special attention be given to minimize all privileged communications. See 3:21-MC-52; 3:21-MC-19; 3:21-MC-31. Defendant offers that this failure to minimize is evidenced by the line reports, which reflect that none of the forty-nine monitored calls between Defendant and her husband were minimized, and by the Ten-Day Reports, which Defendant contends show no procedure or screening whatsoever for privileged marital communications. Id. at 5-6. Lastly, Defendant notes that proper minimization must meet an objective standard, and there does not appear to be any standard applied here. Id. at 6.
B. Government's Response
The Government first argues that Defendant waived the marital privilege in any phone calls with her husband that also involved a third party. ECF No. 581 at 9-11. As for those communications solely between husband and wife that could fall under the marital privilege, the Government contends investigators properly listened to pertinent communications between Stephany and Juan under the crime-fraud exception. Id. at 11-14. Specifically, after learning of Stephany's role in the drug trafficking conspiracy on February 20, 2021, communications between Stephany and Juan were no longer automatically minimized due to the marital privilege because investigators now knew that she and Juan engaged in conversations to further criminal activities. Id. at 12-14. The interception of further marital communications was then permissible to determine whether they were pertinent, i.e., in furtherance of the drug conspiracy. Id. at 12. Ultimately, investigators did not minimize the calls between Stephany and Juan because they were all deemed pertinent to the criminal investigation. Id. at 13-14. Lastly, the Government contends that the monitoring agents properly monitored all intercepted communications involving Defendant following objectively reasonable minimization protocols. Id. To that end, the Government notes that the majority of the calls between Juan and Stephany were approximately a minute in duration or less. Id. at 14.
V. ANALYSIS
Title III provides that every court order authorizing a wiretap “shall contain a provision that the authorization to intercept ... shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception.” 18 U.S.C. § 2518(5). Title III permits a defendant to seek suppression of the contents of “any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom,” on the grounds that the interception was intercepted unlawfully or not “in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(a). While the court orders authorizing the relevant wiretaps in this case remain under seal, it is sufficient to note that the orders emphasize that special attention be given to minimize all privileged communications. See 3:21-MC-52; 3:21-MC-19; 3:21-MC-31. Lastly, “[n]o otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.” 18 U.S.C. § 2517(4).
Defendant primarily contends that no reasonable attempt was made by the Government to minimize calls protected by marital privilege. ECF No. 561 at 1. At the hearing, Officer Custer testified that the monitoring agents were not aware that Juan and Stephany were married during the course of the wiretaps. ECF No. 1032 at 10, 18, 23. Based on this testimony, Defendant orally argued at the hearing that the Government's failure to investigate her marital status amounted to an objectively unreasonable violation of the court orders and the statutory minimization requirement. Id. at 37-42, 52-55.
There are two types of marital privilege: the privilege against adverse spousal testimony and the privilege protecting confidential marital communications. United States v. Barefoot, 2011 WL 3678152, at *2 (E.D. N.C. Aug. 22, 2011) (citing Trammel v. United States, 445 U.S. 40, 51 (1980)). The privilege protecting confidential marital communications is at issue here.
The Defendant's argument that the Government failed to take appropriate steps to ensure that marital communications were never intercepted rests on the premise that any interception of a privileged call is unlawful. “Courts interpreting Title III, however, have found no such per se bar to the interception of privileged calls.” United States v. Goffer, 756 F.Supp.2d 588, 593 (S.D.N.Y. 2011). “[N]othing in Title III prohibits outright the interception or monitoring of privileged conversations,” rather, it just requires that they be minimized like all other nonpertinent communications. Drimal v. Tai, 786 F.3d 219, 224 (2d Cir. 2015). “While the case law interpreting these provisions in the context of privileged conversations is limited, courts addressing the issue have generally found that the monitoring of privileged calls is subject to the same reasonableness standard that applies to non-privileged calls.” Goffer, 756 F.Supp.2d at 593. “Of course, to the extent that these conversations retain their privileged character, they are not admissible as evidence,” but that does not mean that the monitoring of privileged calls amounts to a violation of Title III. Id.; see also United States v. Espudo, 2013 WL 2252637, at *2 (S.D. Cal. May 22, 2013). In sum, while the Government is not prohibited from monitoring the Defendant's privileged marital conversations, the Court may still find a Title III violation that warrants suppression if the monitoring agents failed to comply with the minimization requirements. Goffer, 756 F.Supp.2d at 594.
A. Minimization Standards
“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.” United States v. Rivera, 527 F.3d 891, 904 (9th Cir. 2008) (internal citation omitted). “The minimization techniques used do not need to be optimal, only reasonable.” Id. “The statute 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). Whether the government has conducted a wiretap in compliance with the statutory minimization requirement should be determined under an “objectively reasonable” standard that “will depend on the facts and circumstances of each case.” Id. at 139-140. “Courts applying Scott's objective reasonableness standard have evaluated the government's minimization efforts in the context of the entire wiretap, as opposed to a chat-by-chat analysis.” Goffer, 756 F.Supp.2d at 592 (internal quotations omitted).
“The government has the burden to show proper minimization.” Rivera, 527 F.3d at 904. “Once a prima facie showing is made, the burden shifts to the defendant to show that, despite a good faith compliance with the minimization requirements, a substantial number of non-pertinent conversations have been intercepted unreasonably.” Goffer, 756 F.Supp.2d at 592 (internal quotations omitted).
B. Reasonableness of the Government's Minimization Efforts
It is apparent from the record that the Government's monitoring procedures were adequate, and that the Government took appropriate measures to comply with the minimization requirement. The Assistant United States Attorney held minimization meetings each time the task force received authorization to begin conducting another wiretap. ECF No. 1032 at 12. At the minimization meetings, the Assistant United States Attorney would go over the minimization instructions, which details how to properly monitor incoming communications and includes guidelines on how to handle privileged calls. Id. at 12-13, 22. The monitors were also provided written copies of the minimization instructions. Id. at 12, 22-23.
If a privilege between two parties was identified by investigators or fellow monitors, the monitors would be notified and instructed to mark any calls between the two numbers as privileged. ECF No. 1032 at 21, 23-25, 29.
Monitors would wait by the computer on shifts and get notified when a call was placed; they would then listen to the call live to determine if it was pertinent to the investigation. ECF No. 1032 at 10. Monitors were instructed to implement the “two minutes up, one minute down” spot checking practice, where they are allowed to listen to the first two minutes of a phone call to determine whether it was criminal in nature. Id. at 36, 45. If the first two minutes were non-pertinent, the monitor would minimize the call for one minute, and continue to spot check until the conversation either turned pertinent or ended. Id. at 45. If the call turned pertinent, the monitor would listen to the call until the conversation either ended or became non-pertinent, in which case the call would be minimized. Id. If the calls were in Spanish, translators would create a transcript that would then be reviewed to determine if the call was pertinent. Id. at 14-15. Finally, the case agent would review the pertinent conversations. Id. at 33.
This practice is acceptable under Title III, which states that “[i]n the event the intercepted communication is in a . . . foreign language, and an expert in that foreign language . . . is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.” 18 U.S.C. § 2518(5).
Courts have found the minimization practices described above to be reasonable. See United States v. Johnson, 2013 WL 12140276, at *10 (S.D. Fla. July 26, 2013) (finding the practice of spot checking, which entails listening to a non-pertinent call for two minutes, then minimizing the call for a minute, then listening for thirty seconds, and if the call remains non-pertinent, minimizing again for another minute, to be reasonable); United States v. Barbary, 2012 WL 4854727, at *6 (S.D. Fla. Oct. 11,2012). In this case, ninety percent of the calls between Juan and Stephany were under two minutes in duration, so the practice of spot checking was often unnecessary. “Courts have found that minimization is generally inapplicable to calls of less than two minutes in duration.” Goffer, 756 F.Supp.2d at 592; see also United States v. Zemlyansky, 945 F.Supp.2d 438, 478 (S.D.N.Y. 2013); United States v. Dumes, 313 F.3d 372, 380 (7th Cir. 2002); United States v. Arevalo, 112 F.Supp.3d 1185, 1190 (D. Kan. 2015) (“very short calls are not subject to minimization”); United States v. Mastronardo, 987 F.Supp.2d 545, 555 (E.D. Pa. 2013) (noting that “courts should not consider calls shorter than two minutes when deciding whether minimization of phone calls is appropriate”); United States v. Yarbrough, 527 F.3d 1092, 1098 (10th Cir. 2008) (excluding calls under two minutes from minimization). Stated differently, there is a strong presumption that the Government has not acted unreasonably by failing to minimize calls under two minutes. Zemlyansky, 945 F.Supp.2d at 478.
Thus, Defendant's argument that the Government's failure to minimize the forty-nine calls was objectively unreasonable is largely undermined by the fact that ninety percent of the calls at issue lasted well under two minutes. Meaning, minimization of those forty-four calls, even if the conversations were nonpertinent, was not necessary and the Government's failure to minimize was reasonable under the circumstances. Additionally, all the calls at issue, including the five over two minutes, were marked pertinent, which, if appropriately labeled, offers yet another reason why minimization was not required in this case. In sum, the undersigned holds that the Government adopted reasonable procedures to assure compliance with the minimization requirement and implemented those procedures effectively.
To the extent Defendant is arguing that some of the conversations were improperly labeled as pertinent, and therefore not adequately minimized, this argument fails too. In cases “involving a wide-ranging conspiracy with a large number of participants, even a seasoned listener would have been hard pressed to determine with any precision the relevancy of many of the calls before they were completed.” Scott, 436 U.S. at 142. Thus, the government's minimization efforts are not rendered unreasonable by the fact that monitors may have declined to minimize calls because they mistakenly believed them to be related to activities of the drug-trafficking organization. See Rivera, 527 F.3d at 907. Second, the government “is entitled to latitude to scrutinize messages by conspirators, because such messages may contain double-meanings and implied purposes, or even be conveyed in secret code.” Id. (internal quotations omitted); see also United States v. Uribe, 890 F.2d 554, 557 (1st Cir. 1989); United States v. Gordon, 871 F.3d 35, 48 (1st Cir. 2017) (noting that extra “leeway” is warranted where targets use “codes and specialized jargon,” and that the “use of a foreign language itself supplies an extra layer of complexity”). Therefore, the government's minimization efforts are also not rendered unreasonable by the fact that monitors may have declined to minimize calls because they mistakenly believed them to contain code words referring to drug trafficking activities. Rivera, 527 F.3d at 907.
The Government properly labeled the relevant calls as pertinent and therefore was not required to minimize them. Specifically, during the Defendant's cross examination of Officer Custer, Defendant selectively brought two seemingly normal calls between Juan and Stephany to Custer's attention that had been marked as pertinent by the monitors. And for both calls, Officer Custer provided a reasonable explanation as to why he or other monitors deemed it pertinent to the criminal investigation. Officer Custer also testified that Juan and other drug conspirators would use code words over the phone to avoid detection and often speak in Spanish. ECF No. 1032 at 14-15, 34. Under the complex circumstances of this case, the undersigned concludes that the monitors took reasonable steps to assess the relevancy of each call to the criminal activity under investigation.
On the call marked as Exhibit A, which was placed on March 23, 2021, Juan said “I didn't hear the phone in the kitchen because I'm back here; I came up to the second floor.” ECF No. 1032 at 31-32; ECF No. 561-1 at 1. Officer Custer explained that as someone familiar with the investigation, he knew that the appliance shop kitchen was used for packaging drugs. ECF No. 1032 at 31-32. The Assistant United States Attorney also mentioned during argument that the kitchen was used for cooking crack-cocaine. Id. at 46. And because Juan and Stephany's residence was a single-level apartment, it was clear to monitors that Juan was on the second floor of the appliance shop and made his way to the kitchen, which is why monitors marked it as pertinent. Id. at 31-32. As for the call marked as Exhibit C-1, which was placed on May 11,2021, Officer Custer explained that it was labeled pertinent because it identified that Juan was at the appliance shop and that he was “unloading the truck.” ECF No. 1032 at 35-36; ECF No. 561-3 at 1. Investigators at the time believed that the drugs were coming in on a truck. ECF No. 1032 at 35.
See Footnote 4.
Finally, following Officer Custer's testimony that the monitoring agents were not aware of Juan and Stephany's marriage, Defendant argued that the Government's failure to investigate her marital status amounted to an objectively unreasonable violation of the court order and the minimization requirement. In United States v. Rivera, cited as authority by Defendant, the defendants similarly argued that the government “failed to properly minimize the wiretap because it took insufficient steps to ensure that monitors would minimize conversations protected by the marital privilege.” 527 F.3d at 905. Specifically, the defendants noted that “the DEA did not make efforts to determine whether any of the wiretap targets were married and did not inform the monitors that [the defendant's] wife lived in Mexico.” Id. The Ninth Circuit rejected this argument, stating that “while the DEA perhaps should have specifically investigated the marital status of the wiretap targets, Defendants cite no authority for the proposition that failure to do so renders the DEA's minimization procedures, as a whole, inadequate.” Id. at 905-906. In finding that the DEA's minimization efforts were sufficient, the Ninth Circuit noted that “monitors were instructed not to listen to privileged calls, including calls between spouses,” and that the special agent testified that the DEA was not aware that any of the targets were married. Id.
The undersigned, like the court in Rivera, is not persuaded that a failure to investigate marital privilege for all subjects of a wiretap makes the Government's minimization efforts, as a whole, objectively unreasonable. First, Defendant has not provided any authority to support this position, and the undersigned is not aware of any such cases. Moreover, here, similar to the special agent in Rivera, Officer Custer testified that he had been given instructions to mark calls between spouses as privileged and was unaware that Juan and Stephany were married. At least one other target of the wiretap had been identified as married, Lenin Luna Mata, so in that case, monitors were notified of the marital privilege for any communications between Lenin and his wife, Ana. Officer Custer, however, was not aware of the efforts, if any, that went into investigating whether Juan and Stephany were married. It is also worth noting that while investigators were aware that Juan and Stephany lived together in Maryland and used terms of endearment, Juan and Stephany had different last names, their marriage certificate was from Massachusetts, and during the investigation, Juan had conversations with other women that indicated to monitors that he may have been in other romantic relationships. Thus, from the perspective of the investigators, it may not have been as clear cut that Juan and Stephany were married as it was for Lenin and Ana. In short, while in retrospect the Government should have conducted a more thorough investigation into whether Juan and Stephany were married during the course of the wiretap, this inaction does not warrant suppression of the wiretap as the Government's minimization efforts, as a whole, were objectively reasonable under the circumstances.
Furthermore, even if the Government was aware of Juan and Stephany's marriage before or during the course of the wiretap, the marital privilege would not have changed the monitors reasonable minimization techniques in this case. As previously discussed, privileged conversations may be lawfully intercepted and monitored under a wiretap, but they retain their privileged character and should only be minimized, like all other conversations, if the monitors deem them to be non-pertinent. See Drimal, 786 F.3d at 224; Goffer, 756 F.Supp.2d at 593-594.
In United States v. Cleveland, the defendant objected to the use of “spot checking” in a minimized conversation between him and his wife because the monitoring agents knew that it was subject to the marital privilege. United States v. Cleveland, 964 F.Supp. 1073, 1099 (E.D. La. 1997). The defendant argued that as soon as the monitoring agent discovered that the conversation was with his wife, all monitoring should have ceased. Id. at 1099-1100. The court found that the use of spot checking minimization techniques was reasonable for communications solely between husband and wife because investigators had reason to believe that the married couple had discussed criminal activity. Id. at 1100-1101; see also United States v. Verdin-Garcia, 2005 WL 8164499, at *4 (D. Kan. Nov. 23, 2005) (holding that the Government does not need to minimize spousal communications that discuss joint criminal activity); United States v. Barbary, 2012 WL 12952708, at *6 (S.D. Fla. Sept. 6, 2012) (noting that the statutory requirement of minimizing non-pertinent calls suffices to protect the marital privilege because the privilege only applies to conversations that are not criminal in nature).
The Government first learned of the Defendant's role in the drug-trafficking conspiracy on February 20, 2021. On February 20, 2021, Juan called Dominick Mickens on Target Telephone 10. Even had the Government known of Defendant's marriage to Juan, this phone call would not have been marked as privileged by monitors because it was not a call between Juan's number and Stephany's number. Once Stephany joined the ongoing call between Juan and Mickens, it would have been clear to the monitors that marital privilege did not attach because the presence of a third party on the phone (Mickens) waived the marital privilege. See United States v. Parker, 834 F.2d 408, 411 (4th Cir.1987); Barefoot, 2011 WL 3678152, at *2. It would have also been clear to the monitors that marital privilege did not attach because the communication had to do with “the commission of a crime in which both spouses are participants.” Parker, 834 F.2d at 411 (internal quotations omitted); see also United States v. Cannon, 2012 WL 6641640, at *3 (D.S.C. Dec. 20, 2012) (holding that to the extent the defendant's conversations with his wife involved joint ongoing criminal activity, the marital privilege would not protect either spouse); United States v. Cooper, 85 F.Supp.2d 1,30 (D.D.C. 2000) (noting that the marital privilege does not apply if the spouses are jointly participating in a crime); United States v. Malekzadeh, 855 F.2d 1492, 1496 (11th Cir. 1988) (noting that the marital privilege does not protect conversations made in furtherance of a conspiracy).
Because investigators now knew that Stephany and Juan engaged in conversations to further criminal activities after February 20, 2021, monitors properly listened to communications solely between Rodriguez and Juan to determine whether they were pertinent to the investigation, i.e., in furtherance of the drug conspiracy. Because the monitors properly determined that all of the calls were pertinent, minimization was not required, and the marital privilege does not attach. In conclusion, the undersigned finds that the Government's minimization procedures and the execution of those procedures were objectively reasonable under the circumstances and within the confines of the applicable law. Neither the suppression of the entire wiretap nor the suppression of specific calls is warranted under these facts.
VI. RECOMMENDATION
For the reasons stated herein, the undersigned RECOMMENDS that Defendant's Motion [ECF No. 561] to Suppress Wiretap Evidence Based on Marital Privilege be DENIED.
Any party may, within fourteen (14) days after being served with a copy of this Report and Recommendation, file with the Clerk of this Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the Honorable Thomas S. Kleeh, Chief United States District Judge. Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. See 28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
The Court directs the Clerk of the Court to provide a copy of this Report and Recommendation to all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.