United States District Court, N.D. California
ORDER DENYING MOTION TO DISMISS Re: Dkt. No.
JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE
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.
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.) 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.)
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. (Id. ¶ 6.; see also Id
. Salas-13, ¶ 2; see also Declaration of
Sarah Mauricio, ¶¶ 3-6.) These surveillance
activities were not recorded.
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.)
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.)
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.)
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,
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
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.)
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.) According to ATF Agent Justin Quinn,
the phone the CI used to contact the seller is not in ATF
custody. (Quinn Declaration, ¶ 3.)
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. ¶¶ ...