1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 UNITED STATES OF AMERICA, v. 9 United States District Court Northern District of California 10 Case No. 14-cr-00580-PJH Plaintiff, 8 PRETRIAL ORDER NO. 3 11 MICHAEL MARR, JAVIER SANCHEZ, GREGORY CASORSO, and VICTOR MARR, 12 Defendants. 13 14 Before the court is defendants’ motion to suppress warrantless audio recordings 15 (doc. no. 68). The parties have filed supplemental post-hearing briefs, declarations and 16 exhibits, and the matter is submitted. Having reviewed the relevant legal authority, the 17 parties’ papers, argument of counsel, and evidence in the record, the court DENIES the 18 motion to suppress for the reasons set forth below. 19 I. 20 BACKGROUND Defendants challenge the warrantless use of audio recording devices to capture 21 private conversations at the public entrance to the Alameda and Contra Costa County 22 courthouses, on the ground that they had a reasonable expectation of privacy in their 23 communications. Doc. no. 68. As conceded by defense counsel, defendants do not 24 assert a reasonable expectation of privacy as to the video recordings. Defendants also 25 seek suppression of evidence tainted by the unlawful recordings. Accordingly, the 26 government’s concession that it will not use the courthouse recordings in its case-in-chief 27 does not moot the motion to suppress the recordings. 28 1 United States District Court Northern District of California 2 II. LEGAL STANDARD The United States Constitution protects “the right of the people to be secure in 3 their persons, houses, papers, and effects, against unreasonable searches and 4 seizures.” U.S. Const. amend. IV. “The Fourth Amendment protects people rather than 5 places, but ‘the extent to which the Fourth Amendment protects people may depend upon 6 where those people are.’” United States v. Nerber, 222 F.3d 597, 599 (9th Cir. 2000) 7 (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)). To invoke the protections of the 8 Fourth Amendment, a person must show he had a “legitimate expectation of privacy.” 9 Katz v. United States, 389 U.S. 347 (1967). In Katz, the Supreme Court held that as long 10 as the target has a legitimate expectation of privacy, a warrant is required for the 11 government to conduct electronic surveillance. To establish a “legitimate” expectation of 12 privacy, he must demonstrate a subjective expectation that his activities would be private, 13 and he must show that his expectation was “‘one that society is prepared to recognize as 14 reasonable.’” Nerber, 222 F.3d 597, 599 (quoting Bond v. United States, 529 U.S. 334, 15 338 (2000)). 16 Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 17 §§ 2510-2522, prescribes the procedure for securing judicial authority to intercept wire 18 communications in the investigation of specified serious offenses, and provides for 19 suppression of unlawfully intercepted communications. 20 21 22 23 Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . . if the disclosure of that information would be in violation of this chapter. 24 18 U.S.C. § 2515. Section 2510(2) defines “oral communication” as “any oral 25 communication uttered by a person exhibiting an expectation that such communication is 26 not subject to interception under circumstances justifying such expectation.” The Ninth 27 Circuit has recognized that “the legislative history behind § 2510(2) reflects Congress’s 28 intent that [the Katz inquiry] serve as a guide to define communications that are uttered 2 United States District Court Northern District of California 1 under circumstances justifying an expectation of privacy,” that is, whether the 2 communications were made by a person (1) who has a subjective expectation of privacy, 3 and (2) whose expectation was objectively reasonable. United States v. McIntyre, 582 4 F.2d 1221, 1223 (9th Cir. 1978) (citations omitted). See United States v. Chavez, 416 5 U.S. 562, 575 (1974) (“suppression is not mandated for every violation of Title III, but only 6 if ‘disclosure’ of the contents of intercepted communications, or derivative evidence, 7 would be in violation of Title III”); United States v. Duran, 189 F.3d 1071, 1084 (9th Cir. 8 1999) (“Suppression is required: (i) if the communication was unlawfully intercepted; 9 (ii) the order of authorization or approval under which it was intercepted is insufficient on 10 its face; or (iii) the interception was not made in conformity with the order of authorization 11 or approval.”) (citing 18 U.S.C. § 2518(10)(a)). The district court in the exercise of its discretion may choose to hear live testimony 12 13 at a suppression hearing rather than rely on the written materials submitted by the 14 parties. See United States v. Batiste, 868 F.2d 1089, 1091 (9th Cir. 1989) (district court 15 properly exercised discretion to hold an evidentiary hearing on probable cause to arrest 16 even though evidentiary hearing was not required where the defendant failed to dispute 17 any material fact in the government’s proffer). If affidavits show as a matter of law that 18 defendant is or is not entitled to relief, no evidentiary hearing is required. United States v. 19 Irwin, 612 F.2d 1182, 1187 (9th Cir. 1980). 20 III. DISCUSSION 21 A. Standing 22 As an initial matter, the government contends that defendants lack standing to 23 challenge all the stationary recordings under either the Fourth Amendment or under Title 24 III, which only allows an “aggrieved person” to move to suppress wiretap evidence. Opp. 25 Mot. Suppr. Recordings (doc. no. 86) at 5 (citing Rakas v. Illinois, 439 U.S. 128 (1978) 26 and 18 U.S.C. § 2518(10(a)). See 18 U.S.C. § 2510(11) (an “aggrieved person” means a 27 person “who was a party to any intercepted wire, oral, or electronic communication or a 28 person against whom the interception was directed.”). Defendants have submitted 3 United States District Court Northern District of California 1 declarations by Casorso and Sanchez, in which they assert that they recognize their 2 voices on specific recordings. The government has also identified 16 recordings of Victor 3 Marr, Sanchez and/or Casorso. Wynar Decl. (doc. no. 86-1) ¶ 19; Sambat Decl. (doc. 4 no. 128-1) ¶ 2 and Ex. A. Having identified specific recordings of their conversations in 5 the record, defendants Victor Marr, Casorso and Sanchez have demonstrated standing 6 under the Fourth Amendment and the wiretap statute to challenge those recordings. 7 However, with respect to Michael Marr, defendants do not dispute the 8 government’s representation that Michael Marr was never recorded, but argue that he 9 was identified as a subject of the investigation. Defendants cite United States v. Oliva, 10 705 F.3d 390, 395 (9th Cir. 2012), where the court held that the defendant was one of the 11 individuals “against whom the interception was directed,” even though his voice was not 12 verified to be on any of the recordings, where the affidavits in support of the surveillance 13 orders included investigators’ statements certifying their beliefs that he was using the 14 individual cellular phones at issue, showing that the defendant’s conversations were the 15 target of the surveillance. Defendants rely on Oliva to support their argument that an 16 “aggrieved person” with standing under the wiretap statute is one whose conversations 17 were the target of the surveillance. Reply Mot. Suppr. Recordings (doc. no. 104) at 2. 18 Although the government did not address Michael Marr’s standing argument in its 19 surreply, the court determines that Oliva does not expressly recognize a defendant’s 20 standing to bring a motion to suppress where he was not actually recorded or was not 21 named in a wiretap application. Unlike Oliva, Michael Marr was not named in a wiretap 22 application, since the government did not seek a wiretap order. 23 Defendants also cite an unpublished opinion, United States v. Luis, 537 Fed. 24 Appx. 752, 753 (9th Cir. 2013), which does not support their standing argument for 25 Michael Marr. There, the defendant moved to suppress recorded conversations with an 26 informant that were recorded with the informant’s consent without judicial authorization 27 and by the government’s use of wiretaps. The court held that all of the defendant’s 28 conversations were properly intercepted without judicial authorization pursuant to the 4 United States District Court Northern District of California 1 informant’s consent. With respect to the wiretaps, the court in Luis held that the 2 defendant lacked standing to challenge the interceptions because he was not named in 3 any of the applications and none of his phone calls were intercepted pursuant to a Title III 4 authorization. The court in Luis cited United States v. Gonzalez, Inc., 412 F.3d 1102, 5 1116 (2005), amended by 437 F.3d 854 (9th Cir. 2006), where the court recognized that 6 “[t]he Supreme Court has interpreted these provisions as limiting standing to challenge 7 wiretaps to persons whose Fourth Amendment rights were violated by the interception,” 8 and held that the defendants had standing to challenge all conversations intercepted by a 9 wiretap on their business premises, not only their own intercepted conversations, where 10 the defendants owned and leased the building to their family-run business. In Alderman 11 v. United States, 394 U.S. 165, 171-72 (1969), the Supreme Court rejected an expansive 12 view of Fourth Amendment standing urged by the defendants there who argued that “if 13 evidence is inadmissible against one defendant or conspirator, because tainted by 14 electronic surveillance illegal as to him, it is also inadmissible against his codefendant or 15 coconspirator.” The Supreme Court recognized that “[t]he established principle is that 16 suppression of the product of a Fourth Amendment violation can be successfully urged 17 only by those whose rights were violated by the search itself, not by those who are 18 aggrieved solely by the introduction of damaging evidence. Coconspirators and 19 codefendants have been accorded no special standing.” Id. 20 Notwithstanding the court’s statement at the hearing, now that the court has had 21 the opportunity to read the cases cited by defendant, in the absence of authority broadly 22 recognizing that a defendant who was under investigation, but was neither intercepted 23 nor named in a wiretap application, qualifies as an “aggrieved person” under the wiretap 24 statute, the court finds that Michael Marr has not demonstrated that he has standing to 25 challenge the warrantless recordings. Defendants cite no authority broadly construing “a 26 person against whom the interception was directed” to include someone who was under 27 surveillance but had no communications intercepted, was not an owner of the premises 28 where the warrantless interceptions were made, and was not named in a wiretap 5 United States District Court Northern District of California 1 application. The court further notes that the record indicates that the government agents 2 were informed that Michael Marr never personally attended the rounds but had people 3 representing him; thus he was not even an intended target of the interception. Wynar 4 Decl., Ex. C at 4-5 (under seal). The Ninth Circuit has held that standing under the 5 wiretap statute is not broader than Fourth Amendment standing. “Both the language of 6 the statute and its legislative history make it clear that it does not broaden the rule of 7 standing provided for in [former] Rule 41(e), F.R.Crim.P., relating to Fourth Amendment 8 motions to suppress.” United States v. King, 478 F.2d 494, 506 (9th Cir. 1973) (citing 18 9 U.S.C. § 2510(11); S. Rep. No. 1097, 90th Cong. 2d Sess., quoted in 1968 U.S. Code 10 Cong. & Admin. News at 2179). The court in King concluded that “a defendant may 11 move to suppress the fruits of a wire-tap only if his privacy was actually invaded; that is, if 12 he was a participant in an intercepted conversation, or if such conversation occurred on 13 his premises.” Id. 14 Under the weight of authority discussed here, the Fourth Amendment standing of 15 defendants Victor Marr, Casorso and Sanchez is limited to challenging the interception of 16 conversations in which they participated, and not all the warrantless recordings made in 17 the course of the investigation. Michael Marr has not demonstrated standing to move for 18 suppression of any of the warrantless recordings. 19 B. Expectation of Privacy 20 Defendants contend that they had a reasonable expectation of privacy in their 21 communications outside the courthouses, citing cases recognizing a privacy right in 22 communications made in a public place. None of the cases are directly on point, to hold 23 that one has a reasonable expectation of privacy in communications at or near a 24 courthouse entrance. 25 The government concedes that in the course of the bid-rigging investigation, 26 based on information provided by cooperators, the FBI installed stationery microphones 27 in public spaces in the vicinity of the public auctions outside the Alameda County 28 courthouse in Oakland from March 2010 to December 2010, and near the Contra Costa 6 1 County courthouse in Martinez from June 2010 to December 2010, for the purpose of 2 making recordings around the time of the public foreclosure auctions. Wynar Decl. (doc. 3 no. 86-1) ¶¶ 8, 14. The warrantless recordings at issue were recorded on microphones 4 located at the following locations: 5 Outside the Alameda County Courthouse (1) inside the lower light 6 box along the courthouse steps of the Alameda County Courthouse 7 on 1225 Fallon Street, Oakland, (2) on vehicles parked in front of 8 the courthouse; and (3) at the bus stop near the courthouse on the 9 corner of Fallon Street and 12th Street, Oakland. 10 United States District Court Northern District of California   Outside the Contra Costa County Courthouse (1) on vehicles 11 parked in front of the Contra Costa County Courthouse on 725 12 Court Street, Martinez, (2) on vehicles parked in front of the 13 staircase near the southwestern corner of the Contra Costa 14 Finance Building on 625 Court Street, Martinez, and (3) along this 15 staircase at 625 Court Street, Martinez. 16 Sambat Decl. (doc. no. 128-1), Ex. A. The court takes judicial notice that the Contra 17 Costa Finance Building is directly across the street from the Contra Costa County 18 Courthouse, and that the staircase where two of the recording devices were installed 19 leads from the entrance of the Finance Building to the sidewalk near the corner of the 20 block facing the courthouse. Sambat Decl., Ex. N. 21 The government contends that defendants did not have a reasonable expectation 22 of privacy in their public oral communications outside the county courthouses, 23 challenging both their subjective expectation of privacy and the reasonableness of that 24 expectation. The parties agree that the applicable factors to consider in determining 25 whether an individual can demonstrate a reasonable expectation of privacy are set forth 26 in Kee v. City of Rowlett, 247 F.3d 206, 213-15 (5th Cir. 2001)): 27 (1) the volume of the communication or conversation; 28 7 1 (2) the proximity or potential of other individuals to overhear the conversation; 2 (3) the potential for communications to be reported; 3 (4) the affirmative actions taken by the speakers to shield their privacy; 4 5 6 7 (6) the place or location of the oral communications as it relates to the subjective expectations of the individuals who are communicating. 8 See Reynolds v. City and County of San Francisco, 2012 WL 1143830 at *5 (N.D. Cal. 9 Mar. 30, 2012) (citing Kee). 10 United States District Court Northern District of California (5) the need for technological enhancements to hear the communications; and 1. Subjective Expectation of Privacy 11 Defendants contend that their subjective expectation that their conversations 12 would remain private is demonstrated by the secretive and confidential nature of the 13 secondary auctions, citing cases recognizing the subjective expectation of privacy by 14 people attempting to conceal unlawful activity. See U.S. v. Nerber, 222 F.3d 597, 603 15 (9th Cir. 2000) (affirming finding of subjective expectation of privacy in the defendants’ 16 hotel room where, “[i]n addition to closing the door, drawing the blinds, and exercising 17 dominion over the room after the informants left at 10:00 a.m., defendants ingested 18 cocaine and brandished weapons in a way they clearly would not have done had they 19 thought outsiders might see them.”). The evidence in the record does not support an 20 inference that defendants attempted to keep their conversations secret in order to 21 conceal unlawful activity, in light of the evidence that they conducted their rounds in 22 open, public areas and evidence suggesting that defendants did not expect that they 23 could be prosecuted for bid-rigging. See Patchen Decl. (doc. no. 109-1), Ex. C at 15 24 (under seal) (indicating that Casorso did not believe his involvement in rounds amounted 25 to bid-rigging). The government provided evidence that Casorso told the FBI, “If there 26 are 30 bidders present at auction there are usually 12 bidders who are willing to work a 27 deal.” Patchen Decl., Ex. C at 3 (under seal). The government also offered hearsay in 28 the form of press articles quoting Casorso flagrantly admitting how the secondary rounds 8 1 were conducted. While this evidence may not be admissible at trial on the issue of guilt, 2 the court finds that these statements are consistent with Casorso’s statements to the FBI 3 regarding his state of mind. United States District Court Northern District of California 4 Defendants Sanchez and Casorso submitted self-serving declarations stating that 5 they believed their conversations were private, but offer no facts to demonstrate their 6 subjective beliefs. Defendants argue that they took steps to protect their conversations 7 by moving away from other people, standing close together, covering their mouths and 8 speaking in low volumes. See Defs’ Resp. to Surreply re Mot. Suppr. Recordings (doc. 9 no. 112) at 3. Defendants offer no declaration attesting to these attempts to maintain 10 privacy, but defense counsel argued at the hearing that defendants cannot be expected 11 to remember what steps they took to protect the privacy of each conversation that was 12 recorded without their knowledge six years ago. 13 The evidence in the record, including audio recordings of the intercepted 14 communications, suggests that defendants communicated near the courthouse entrance 15 openly with up to 12 people at a time to work out the secondary auction. These 16 circumstances do not demonstrate a subjective expectation of privacy, even in light of 17 defendants’ conclusory statements that they believed their conversations were private. In 18 having these conversations, the “rounders” did not leave the vicinity of the public 19 auctions, which were held outside the courthouse just prior to the secondary auction. 20 The auctioneer would typically position himself at the top of the steps or midway on the 21 landing of the steps of the courthouses to conduct the public auctions, which were held 22 weekdays from 12 noon to 12:30 pm at the Alameda County courthouse, and at 10:00 23 am and 1:30 pm at the Contra Costa County courthouse. Wynar Decl. ¶¶ 8, 12. 24 Defendants took part in the recorded conversations at or near the courthouse entrance or 25 at the corner bus stop bearing a “County Court House” sign. Sambat Decl., Exs. G, H, I. 26 Other than defendants’ own conclusory statements, there are no reliable facts in the 27 record to support a finding that any defendants had a subjective expectation of privacy in 28 the conversations at issue. 9 1 2 Reasonableness Even if defendants’ conclusory assertions of their subjective expectations were 3 supported by facts, the Kee factors render those expectations objectively unreasonable, 4 particularly the factors: proximity or potential of other individuals to overhear the 5 conversation, potential for communications to be reported, and location of the 6 communications, as it relates to their subjective expectations. Having listened to the 7 recordings at issue, the court finds that defendants did not take steps to protect the 8 privacy of the conversations that were audibly recorded. 9 10 United States District Court Northern District of California 2. a. The volume of the communication or conversation The recordings at issue intercepted defendants’ communications that were made 11 at a normal conversational volume level, not in hushed or whispering tones. Many 12 conversations were conducted by participants in loud voices, sometimes laughing out 13 loud. In particular, the audio recording of a conversation among a group of about eight to 14 ten men on August 17, 2010, at the Fallon Street bus stop, which was played for the 15 grand jury during the indictment presentation in United States v. Florida, et al., CR 14- 16 582 PJH, reflects that the participants had to project their voices and yell to be heard over 17 the sound of a nearby jackhammer. Sambat Decl., ¶ 8 and Ex. B, 1D484.002.wav (under 18 seal). All of the recordings picked up background noise, such as automotive traffic, 19 construction noise, and other conversations from people nearby, which often drowned out 20 the defendants’ conversations on the recording. In the video footage accompanying 21 many of the audio recordings, including the video clip that was played for Witness 1 and 22 the grand jury, the participants are not seen appearing to whisper or covering their 23 mouths when having audible conversations that can be heard on the recording. Wynar 24 Decl. ¶ 19; Sambat Decl., ¶ 8 and Ex. B, 1D106.003.avi (under seal). In listening to the 25 audio recordings, the court observed that when a person was speaking at a lowered 26 volume, the recorded communications were not audible or intelligible. The audible 27 conversations that were recorded were loud enough to be heard by anyone passing by, 28 10 1 whether at the courthouse entrance or at the bus stop, undermining the reasonableness 2 of any subjective expectation of privacy. 3 b. the conversation 4 United States District Court Northern District of California 5 The proximity or potential of other individuals to overhear The fact that the rounds were conducted in open, public areas close to the 6 courthouse entrance, where the public auctions had just been held, and where various 7 members of the public, including law enforcement officers and attorneys, come and go, 8 does not support a reasonable expectation of privacy under the second Kee factor. 9 Defendants suggest that private affairs are routinely discussed outside courthouses, 10 including attorney-client communications. Mot. Suppr. Recordings (doc. no. 68) at 7. It is 11 unlikely, and certainly unreasonable, for attorneys to risk breaching their confidential 12 communications with clients by discussing sensitive matters out in the open, in 13 conversational tones, in front of a public forum such as a courthouse, where they could 14 easily be overheard by other attorneys, prosecutors, law enforcement officers, security 15 personnel, court staff, judges, and other bystanders. As an aside, it has been the court’s 16 observation that conversations near the courthouse entrance are frequently overheard by 17 unintended and unseen listeners, even from inside the courthouse. Defendants cite no 18 authority recognizing an objectively reasonable expectation of privacy in the space 19 immediately outside a courthouse entrance. 20 c. 21 The potential for communications to be reported As noted above, defendants conducted the intercepted conversations at or near a 22 courthouse entrance, where the public foreclosure auction was daily held and where 23 members of the bar and law enforcement officers routinely traversed, exposing them to a 24 high likelihood of being observed and reported. Furthermore, many of defendants’ 25 conversations were conducted with multiple participants, any of whom could have 26 reported the bid-rigging activity. See Hoffa v. United States, 385 U.S. 293, 303 (1966) 27 (“The risk of being overheard by an eavesdropper or betrayed by an informer or deceived 28 11 1 as to the identity of one with whom one deals is probably inherent in the conditions of 2 human society.”) (citation and internal marks omitted). 3 d. privacy 4 United States District Court Northern District of California 5 Affirmative actions taken by the speakers to shield their Defendants have not offered evidence to show affirmative actions taken to protect 6 their privacy, other than suggesting in their brief that they tried moving away from other 7 people, standing close together, covering their mouths and speaking in low volumes. 8 Having listened to the recordings at issue, many of which were accompanied by video 9 images, the court determines that when a speaker spoke in a quiet voice or leaned in to 10 whisper to the listener, the communication was not audibly intercepted by the recording 11 device. Based on the recorded communications that are audible or intelligible, it is clear 12 that defendants did not take measures to keep their conversations private. Unlike Katz, 13 where the defendant went into a phone booth and closed a glass door to protect his 14 privacy, defendants did not enter an enclosed space but stayed in an open, public area. 15 The photos of the Fallon Street bus stop show that the bus shelter was not closed, but 16 opened to the street, and was located at a busy corner with pedestrian traffic and street 17 traffic. Sambat Decl., Exs. G, H, I. 18 19 20 e. The need for technological enhancements to hear the communications To address the fifth Kee factor, the government offers evidence that the FBI used 21 recording devices that picked up only what could be heard by a human ear and did not 22 amplify the conversations. Wynar Decl. (doc. no. 86-1) ¶ 15(b). FBI Special Agent 23 Wynar states that the microphones used to make the recordings have the following 24 characteristics: (1) they are omnidirectional, i.e., there is no additional gain in a particular 25 direction; (2) the microphones lack equalization or noise cancellation; (3) the minimum 26 sound pressure level detectable by the microphone is limited by its own electrical noise, 27 which is specified by the manufacturer as 33.0dB (A-weighted), maximum, and (4) they 28 are less sensitive than a healthy human ear. Wynar Decl. (doc. no. 86-1) ¶ 15(b). The 12 1 evidence shows that the intercepted conversations could be overheard by a human ear. 2 See U.S. v. Fisch, 474 F.2d 1071, 1077 (9th Cir. 1973) (per curiam) (finding no 3 reasonable expectation that conversations in hotel room would not be heard in the next 4 room, noting that the “officers were in a room open to anyone who might care to rent 5 [and] were under no duty to warn the appellants to speak softly, to put them on notice 6 that the officers were both watching and listening.”). As noted earlier, the sound quality 7 of the audio recordings reflect that the recording devices only picked up voices in 8 conversational or loud tones, and not hushed or whispered voices. f. United States District Court Northern District of California 9 The place or location of the oral communications in 10 relation to the subjective expectations of the individuals 11 who are communicating 12 Given the proximity of defendants to the courthouse entrance, which was the site 13 of the public auction, when they conducted communications about the secondary 14 auctions, the context of the conversations does not support a legitimate expectation of 15 privacy. 16 While the court agrees with defendants that it is at the very least unsettling that the 17 government would plant listening devices on the courthouse steps given the personal 18 nature of many of the conversations in which people exiting the courthouse might be 19 engaged, it is equally unrealistic for anyone to believe that open public behavior including 20 conversations can be private given that there are video cameras on many street corners, 21 storefronts and front porches, and in the hand of nearly every person who owns a smart 22 phone. There are no cases which establish a bright line rule one way or the other. 23 Instead, the court is required to apply the Kee factors to the evidence of record. Based 24 upon a review of that evidence, the court cannot find that any subjective expectation of 25 privacy held by defendants was objectively reasonable. Accordingly, the court finds that 26 the warrantless recording of defendants’ conversations did not violate their rights under 27 the Fourth Amendment or under the wiretap statute. The court need not reach the taint 28 13 1 issue and defendants are not entitled to an evidentiary hearing. The motion to suppress 2 is therefore DENIED. 3 C. 4 Although defendants’ Fourth Amendment rights are not implicated by the 5 recordings at issue due to the lack of a reasonable expectation of privacy in the recorded 6 conversations, the court makes the following observations about the evidence that has 7 been developed in the record addressing defendants’ arguments about possible taint, 8 which may provide guidance to the parties and inform their trial strategy. 9 United States District Court Northern District of California Record on Taint The government has identified the uses made of the recordings at issue during the 10 course of the investigation and presentation of the indictment. The government has 11 provided declarations addressing defendants’ concerns whether any confidential sources 12 may have been persuaded to cooperate based on the illegal recordings, or whether any 13 witnesses or lawyers were informed of the recordings as part of a reverse proffer by the 14 government lawyers to induce cooperation. 1. 15 Cooperating Witnesses 16 The FBI played five stationary courthouse recordings to four witnesses, three of 17 whom heard recordings that may have captured the voices of Gregory Casorso, Javier 18 Sanchez and Victor Marr. Wynar Decl. (doc. no. 86-1) ¶¶ 19, 22. Each of those three 19 witnesses had been interviewed several times prior to being shown audio/video 20 recordings in October 2014, and each of them had already entered a guilty plea pursuant 21 to a cooperation agreement. Wynar Decl. (doc. no. 86-1) ¶¶ 23-25. The information 22 about defendants’ recorded conversations that were played for witnesses, and 23 information about each witness’s plea entry on the public docket, is summarized as 24 follows: 25 Witness 26 27 28 (1) Jorge Wong FBI Interview Date 10/8/14 (previously Plea Entry Possible Date for Recorded Witness Defendants 10/12/11 in case Victor Marr, 14 Excerpt of witness interview summary filed under seal with Wynar Decl. (doc. no. 86-1) Ex. J: Prior to the commencement of the interview, Wang [sic] and 1 2 (represented interviewed number by Gail 6 times) CR11-428 Shifman) Javier Sanchez Shifman reviewed an audio/video recording (1D106.003) privately. The video showed Wong participating in a secondary auction, also known as a “round” with Vic Marr, Sanchez, and others. . . . Wong identified Vic Marr and Sanchez in the video. (2) Joseph Vesce (represented by James Lassart) 10/17/14 (previously interviewed 4 times) 8/7/13 in case number CR13-415 Javier Sanchez Ex. K: During the interview Vesce was shown documents and audio and video recordings. . . 1D619.001 part1,wav (audio), 1D611 (video). . .Vesce identified the conduct in this audio/video recording as Wong, Sanchez, Heisner, Renquist, Vesce and Nick Diaz participating in a round. (3) Brian McKinzie (represented by William DuBois) 10/24/14 (previously interviewed 7 times) 11/23/11 in case number CR11-424 Victor Marr, Gregory Casorso Ex. L: McKinzie was shown documents and audio and video recordings . . . 1D402.002.wav. After reviewing this audio recording McKinzie identified the conduct as a secondary auction, also known as a “round” being conducted for the Lobelia Way property. McKinzie did not hear the voice of Vic Marr but Vic Marr had a position, also known as a “seat” in the round. 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 See Wynar Decl., Exs. J, K, L. Under these circumstances, the court finds no material 19 issue whether the recordings would have influenced the witnesses’ decision to cooperate, 20 given that each of them had already pled guilty and agreed to cooperate with the 21 government before being shown the courthouse recordings. 22 23 2. Grand Jury The government represents that on November 19, 2014, the grand jury was shown 24 a stationary audio/video recording capturing Sanchez and Victor Marr’s voices on March 25 19, 2010, identified as 1D106.003, during the indictment for this case. Sambat Decl. ¶ 8. 26 Another stationary recording that captured Casorso’s voice on August 16, 2010, identified 27 as 1D484.002, was provided to the grand jury during the indictment for United States v. 28 Florida on November 18, 2014. Id. The court notes that both here and in Florida, the 15 1 grand jury returned the indictment on the same day that the recording was played. The 2 government represents that no additional subpoenas or testimony were sought by the 3 grand jury after reviewing the recordings. Sambat Decl. ¶ 10. United States District Court Northern District of California 4 It is well-settled that unlawfully seized evidence is admissible before a grand jury. 5 United States v. Calandra, 414 U.S. 338, 344-45, 348-52 (1974) (“The grand jury's 6 sources of information are widely drawn, and the validity of an indictment is not affected 7 by the character of the evidence considered.”). See also U.S. v. Williams, 504 U.S. 36, 8 50 (1992) (noting that in Calandra, challenging physical evidence the government had 9 obtained through a violation of the Fourth Amendment, “we rejected the proposal that the 10 exclusionary rule be extended to grand jury proceedings, because of ‘the potential injury 11 to the historic role and functions of the grand jury.’”); U.S. v. Zielezinski, 740 F.2d 727, 12 732 (9th Cir. 1984) (citing Calandra as authority that “challenges to indictments will not be 13 heard where they rest on objections to the evidence-gathering process,” as distinct from 14 challenges based on improprieties within the grand jury process itself). Defendants’ 15 Fourth Amendment concerns are therefore not implicated by the grand jury’s exposure to 16 the warrantless recordings. 17 18 3. Lawyers The government represents that on March 21, 2013, the government played a 19 stationary audio recording capturing Casorso’s voice at the Fallon Street bus stop, 20 identified as 1D430.001, to an attorney representing then-target John Shiells, in an effort 21 to reach a pre-indictment resolution with Shiells. Sambat Decl. (doc. no. 128-1) ¶ 6. 22 Shiells was subsequently indicted on November 19, 2014, and pleaded guilty to bid 23 rigging and mail fraud on July 8, 2015, pursuant to a cooperation deal with the 24 government. See United States v. John Shiells, et al., CR 14-00581 PJH. The court 25 notes that this particular use of a stationary recording is the only one presenting a 26 potential issue of taint, but there is no evidence in the record on the question whether 27 playing this audio recording for Shiells’ attorney influenced Shiells’ decision to cooperate, 28 or whether any evidence was obtained as a direct result of his cooperation. See U.S. v. 16 1 Huberts, 637 F.2d 630, 638 (9th Cir. 1980) (discussing exclusionary rule and exceptions 2 to the rule) (citing Wong Sun v. United States, 371 U.S. 471, 488-89 (1963)). Because 3 the court has found that defendants did not have a legitimate expectation of privacy in the 4 recorded conversations, it does not reach the issue of taint with respect to any evidence 5 derived from Shiells. 6 IV. 7 8 9 10 United States District Court Northern District of California 11 12 CONCLUSION For the foregoing reasons, defendants’ motion to suppress the warrantless audio recordings is DENIED. IT IS SO ORDERED. Dated: July 22, 2016 __________________________________ PHYLLIS J. HAMILTON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17