ORDER: (1) DENYING RUDY ESPUDO'S MOTION TO SUPPRESS ALL WIRE AND ORAL COMMUNICATION INTERCEPTIONS ON MINIMIZATION GROUNDS [Doc. No. 983]; and. (2) DENYING FRANCISCO GUTIERREZ'S MOTION TO SUPPRESS WIRETAP EVIDENCE AND DERIVATIVE EVIDENCE FOR FAILURE TO MINIMIZE THE INTERCEPTED COMMUNICATIONS [Doc. No. 975]
IRMA E. GONZALEZ, District Judge.
Presently before the Court is Defendant Rudy Espudo's ("Espudo") motion to suppress all wire and oral communication interceptions on minimization grounds. [Doc. No. 983, Espudo's Mot.] Also before the Court is Defendant Francisco Gutierrez's ("Gutierrez") motion to suppress wiretap evidence and derivative evidence for failure to minimize the intercepted communications. [Doc. No. 975, Gutierrez's Mot.] For the following reasons, the Court DENIES both motions.
This case involves charges of conspiracy, racketeering, illegal drug distribution, extortion, and money laundering in connection with the Mexican Mafia prison gang and several affiliated Sureno street gangs operating in northern San Diego county. Defendant Gutierrez filed a motion to suppress on April 1, 2013. [Id.] Defendant Espudo filed a subsequent motion to suppress on April 2, 2013. [Doc. No. 983, Espudo's Mot.] The Government filed a consolidated response in opposition to the motions on April 8, 2013. [Doc. No. 1004, Govt.'s Opp.] On April 17, 2013, Defendant Espudo filed a reply to the Government's response. [Doc. No. 1014, Espudo's Reply.] The Court heard related oral argument from the parties on April 19, 2013 and May 16, 2013. The Court held an evidentiary hearing on May 16, 2013 where FBI Special Agent Mathew Zeman ("Agent Zeman") testified.
On May 23, 2013, Defendant Espudo had a change of plea hearing before this Court, where all pending motions were withdrawn. At oral argument on April 19, 2013 and May 16, 2013, the Court deemed all parties joined in both motions. [Doc. Nos. 1017, 1061.] Accordingly, Defendant Espudo's motion remains pending as to the remaining Defendants.
The Fourth Amendment governs wiretap surveillance. United States v. Petti , 973 F.2d 1441, 1443 (9th Cir. 1992) (citing Berger v. New York , 388 U.S. 41, 50-53 (1967); Katz v. United States , 389 U.S. 347, 352-53 (1967)). "The [Supreme] Court made clear that if certain conditions were met, wiretapping authorized by warrant would pass constitutional muster." Petti , 973 F.2d at 1443 (citing Berger , 388 U.S. at 54-60; Katz , 389 U.S. at 354-56). "Congress codified the requirements of Berger and Katz in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (Title III')." Petti , 973 F.2d at 1443. "Wiretapping authorized under Title III has been found to comply with the Fourth Amendment." United States v. Silberman , 732 F.Supp. 1057, 1058 (S.D. Cal. 1990) (citing United States v. Turner , 528 F.2d 143, 158-59 (9th Cir. 1975)).
Title III provides that wiretapping or electronic surveillance "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); see also United States v. McGuire , 307 F.3d 1192, 1199 (9th Cir. 2002). "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." Id . "The United States Supreme Court has stressed that, because of the necessarily ad hoc nature of any determination of reasonableness, there can be no inflexible rule of law that will decide every case." Id . (citing Scott v. United States , 436 U.S. 128, 139 (1978)). "The minimization techniques used do not need to be optimal, only reasonable." United States v. Rivera , 527 F.3d 891, 904 (9th Cir. 2008).
"The government has the burden to show proper minimization." Id. at 904. Whether the government complied with the statutory requirement to minimize requires the court to examine the monitoring officers' conduct in light of the particular circumstances. Scott , 436 U.S. at 140. "Our cases require the district court to conduct an evidentiary hearing when the moving papers filed in connection with a pre-trial suppression motion show that there are contested issues of fact relating to the lawfulness of a search." United States v. Mejia , 69 F.3d 309, 318 (9th Cir. 1995).
Defendant Espudo brings the present motion to suppress on the ground that "the interception technology employed in the investigation of this case failed to comply with the minimization requirements of the wire orders, the Fourth Amendment, and Title III because "recording of telephone call interceptions did occur without monitoring." [Doc. No. 983-1, Espudo's Mot. at 1-2, 11.] Additionally, both Espudo and Gutierrez bring their motions on the grounds that there was a failure to properly minimize monitored calls, and that communications unrelated to the offenses for which the wiretap was authorized were intercepted. [Id.; Doc. No. 975-1, Gutierrez's Mot. at 4.]
A. Voicebox Interception Technology
Espudo alleges that the Government uses an interception technology called VB Unified Collection Management System, or Voicebox, which is owned and manufactured by a Canadian company, JSI Telecom ("JSI"). Espudo states that Voicebox "is a server-based data collection system designed to intercept electronic communications and distribute them across a network of workstations that are used to monitor and analyze intercepted information." [Doc. No. 983-1, Espudo's Mot. at 3.] Espudo, relying on the system configuration in the Canadian Ahmad case, believes that the system is problematic in terms of minimization because it "can be configured to record everything, record without monitoring when the monitors are too busy to monitor all target calls, and/or to record each call for a preset time." [Id. at 4.] Espudo notes that in the U.S. cases where Kane and Stewart testified, recording without monitoring was not the issue. [Id.]
The Government counters that the version of Voicebox used for the present wiretaps does not provide for the ability to record portions of a telephone conversation that was minimized. [Doc. No. 1004, Govt.'s Opp. at 11.] The Government provided the declaration of Barry Stewart, a JSI representative, to present the relevant facts. [Doc. No. 1004-1, Ex. F at 50-52.] Stewart states that the San Diego FBI used Voicebox Version 3.8, "which only provides for live monitoring of intercepted conversations." [Id. at 51, ¶ 2.] Stewart explains that "[i]n order for live monitoring to occur with FBI ...