United States v. Salas

          ORDER DENYING MOTION TO DISMISS Re: Dkt. No. 54

          JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

         Now before the Court for consideration is the motion to dismiss filed by Defendant Jose Salas ("Salas"). The Court has considered the parties' papers, relevant legal authority, and the record in this case, and it finds the motion suitable for disposition without oral argument. The Court HEREBY DENIES Salas' motion.

         BACKGROUND

         On November 6, 2013, a confidential informant (the "CI") working with agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), advised ATF Agent Justin Quinn ("Agent Quinn") that he met Salas earlier that day and learned that "Salas was looking to sell two firearms." (Declaration of Angela Hansen ("Hansen Decl."), ¶ 2, Ex. A, ATF Report at Salas-9, ¶ 1.)^[1] The CI reportedly advised ATF agents that Salas lived in a house on Murray Drive in Hayward, California, that he had seen Salas driving a green ford Thunderbird, and that Salas had provided him with his phone number, which the CI identified as 510-677-8139. (Id.) Agent Quinn requested that the CI contact Salas to arrange the sale for the following day. It is undisputed that this phone call was not recorded. (Id.) In light of Salas' arguments in this motion, the Court will refer to the person with whom the sale was arranged as the "seller." On November 7, 2013, in the presence of Agent Quinn and ATF Agent Daniel Demas ("Agent Demas"), the CI contacted the seller at 510-677-8139 to arrange to meet. (Id. at Salas-10, ¶ 4.) During this conversation, the seller apparently stated that he "had become worried that he would be selling the firearms to the CI who he had just met. The CI assured him that both the CI and the CI's cousin (SA Demas) were not working with law enforcement." (Id.) The seller also is alleged to have told the CI that the firearms were in a green Ford Thunderbird" that was parked on the street. (Id. at Salas-10, ¶ 4, Salas-13, ¶ 1.) According to the ATF reports, that call was "not recorded but conducted in the presence of and monitored by" Agents Quinn and Demas. (Id. at Salas-10, ¶ 4, Salas-13, ¶ 1.)

         Agent Demas and the CI then drove to Murray Drive. Before they arrived, other ATF agents conducted surveillance of the Murray Avenue residence and stated that they observed Salas leave the home and move a green Ford Thunderbird to the street. (Id. at Salas-10, ¶ 3.) About ten minutes later, they observed Salas exit the house again, retrieve a black bag from the Ford Thunderbird, take the bag inside the home, and return it to the Ford Thunderbird. (ATF Report at Salas-10, ¶¶ 5, 7-8.) The Agents also observed another individual enter and exit the home on Murray Drive.^[2] (Id. ¶ 6.; see also Id . Salas-13, ¶ 2; see also Declaration of Sarah Mauricio, ¶¶ 3-6.) These surveillance activities were not recorded.

         Agent Demas did record portions of the drive to and from Salas' residence. As Agent Demas and the CI were driving, the CI received a telephone call from the seller and responded "Hey, I'm on my way to grab them right now. … I ain't made it to there yet. …. Okay, alright, I'll be there in a minute." (Docket No. 62, Recording 2.001UC at 3:34-3:52; Hansen Decl., ¶ 2, Ex. A, ATF Report at Salas-13, ¶ 1.) Based on the video recording taken from the CI's perspective, the CI is texting during the drive. (See generally Docket No. 63, Recording 1.002CI.) Salas argues that the CI may have been texting with the seller, because at one point the CI advised ATF Agent Demas that "He's like trippin' … I'm like don't worry dude, it's cool." (Recording 1.002CI at 2:47-2:56.)

         When Agent Demas and the CI arrived at Murray Drive, Agent Demas asked the CI if he could see the seller, and the CI responded, "He says he ain't coming out." (Recording 2.001UC at 6:43-6:51.) Agent Demas and the CI then approached the green Thunderbird, the CI removed a black nylon bag from the back seat, left money under the driver's side floorboard, and returned to their vehicle. (See generally Recording 1.002CI and Recording 2.001UC.) When they opened the bag, Agent Demas observed a .410 caliber shotgun and a Ruger .22 caliber rifle. (Salas-11, ¶ 14, Salas-13, ¶ 3.)

         After the transaction was complete, ATF Agent Demas told the CI contact the seller by phone, to put the call on speaker, and "tell him you left it on the floor board." (Recording 2.001UC at 9:29-9:47; Salas-14, ¶ 4.) The CI responded that the seller "like turned his s*** off, " and then stated "I'm gonna shoot him a text." (Recording 2.001UC at 10:15-10:20.) According to the ATF reports, after Agent Demas and the CI left Murray Drive, Salas exited the home on Murray Drive, moved the Ford Thunderbird, appeared to look in and under the trunk of the car, and then went back into the home. (Hansen Decl., Ex. A, ATF Report at Salas-11, ¶ 12.)

         On July 23, 2014, Salas was arrested and subsequently charged with felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (See Docket No. 1 (Criminal Complaint); Docket No. 7 (Indictment).) Salas was interviewed by Agent Quinn and ATF Agent Russell Withrow ("Agent Withrow") following his arrest. (Hansen Decl., ¶ 4, Ex. G.)

         On September 15, 2014, Salas' counsel requested, via email, that the Government produce the content of text messages between the CI and the alleged Seller. (Hansen Decl. ¶ 6.) On October 9, 2014, Salas' counsel reiterated the request, again via email, that Government produce this information and cited to the video recordings to show that the CI had sent text messages and spoke to the seller on the drive to the transaction. (Id.) Salas did not receive a response from the Government to either of these requests.

         On November 24, 2014, Salas' counsel sent a letter to the Government and requested, any and all documentation regarding recorded or unrecorded phone calls between the CI and the phone number that the CI stated belonged to Salas, including but not limited to, audio files, notes, and phone records. (Hansen Decl., ¶ 7.) Counsel also requested phone records, text and voice message content, screen captures, and reports documenting the content of texts or recordings of messages that were sent and received between the CI and the number that the CI stated belonged to Salas. (Id.) On November 28, 2014, the Government advised Salas' counsel that it had no record of calls or text messages, and it advised Salas' counsel that it had subpoenaed phone records and was willing to produce the seller's phone records and any relevant portions of the CI's phone records. (Id. ¶ 8.)

         On January 14, 2015, Salas' counsel asked the Government to preserve the CI's phone. Government counsel responded, "I don't know if I can preserve the phone at this point because it has been months, and the phone may have changed since. This is why we are getting the phone records, to determine if there was any contact. Right now, despite any statement … to connect via text, we have no information the informant actually followed up and actually connected with the defendant with text." (Id.¶ 9.)^[3] According to ATF Agent Justin Quinn, the phone the CI used to contact the seller is not in ATF custody. (Quinn Declaration, ¶ 3.)

         On February 24, 2015, the Government produced redacted call detail records from the CI's phone from November 6, 2013 through November 17, 2013, and subscriber records and call detail records for 510-677-8139 from October 27, 2013 through November 17, 2013. (Declaration of Madeline Larsen ("Larsen Decl."), ¶¶ 2-3.) According to a chart prepared by Salas, the phone records demonstrate 54 contacts between the CI and the number he claimed belonged to Salas, which consisted of 51 minutes of phone calls, and 29 text messages. (Larsen Decl. ¶¶ ...