Memorandum and Order on Defendant's Motion to Suppress Wire and Electronic Communications (D. Mass., Dkt. 395)

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A Memorandum and Order on Defendant's Motion to Suppress Wire and Electronic Communications in United States v. Patrick Joseph, Criminal Action No. 21-10231-FDS-1, in the U.S. District Court for the District of Massachusetts, filed February 6, 2024 as Document 395 and signed by Chief Judge F. Dennis Saylor IV. The defendant is charged with conspiracy to distribute cocaine and cocaine base under 21 U.S.C. § 846 and contends that the Title III wiretap warrants and surveillance violated the Fourth Amendment and the statute. The order describes a March 2021 wiretap order and an extension order dated April 28, 2021, citing wire fraud. The Court denies the motion to suppress and the request for an evidentiary hearing.

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“Memorandum and Order on Defendant's Motion to Suppress Wire and Electronic Communications (D. Mass., Dkt. 395).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-21-cr-10231-dkt-395-d-mass-627ded40cc/, SHA-256 95491cf5bfec65e5c6a07fc50c885e784744b849ffd2b25a9895989539c97433.

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Case 1:21-cr-10231-FDS Document 395 Filed 02/06/24 Page 1 of 16

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

_______________________________________
)
UNITED STATES of AMERICA )
) Criminal Action No.
v. ) 21-10231-FDS-1
)
PATRICK JOSEPH, )
)
Defendant. )
_______________________________________)

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO
SUPPRESS WIRE AND ELECTRONIC COMMUNICATIONS

SAYLOR, C.J.

Defendant Patrick Joseph is charged with conspiracy to distribute and to possess with

intent to distribute five kilograms or more of cocaine and cocaine base in violation of 21 U.S.C.

§ 846. He has moved to suppress wire and electronic communications intercepted by the

government pursuant to warrants issued under 18 U.S.C. §§ 2510, et seq. (“Title III”),

contending that the warrants and surveillance violated the Fourth Amendment and the statutory

requirements of Title III, and requests an evidentiary hearing to resolve the motion. For the

following reasons, the motion will be denied.

I. Background

A. Factual Background

In February 2020, the U.S. Postal Service began investigating a possible drug-trafficking

organization orchestrating the shipment of cocaine from Puerto Rico to Massachusetts and

Rhode Island. During that investigation, Patrick Joseph was identified as a leader within that

group. Agents conducted physical surveillance of Joseph and seized several packages containing

cocaine connected to Joseph and his associates. After further investigative efforts, the
Case 1:21-cr-10231-FDS Document 395 Filed 02/06/24 Page 2 of 16

government applied for a Title III wiretap of three telephones it believed to be linked to Joseph

and his associates. In support of that application, the government provided an affidavit prepared

by Postal Inspector Jeffrey M. Powers. (Def. Ex. C).

The court found that there was probable cause to believe that Joseph, along with several

others, was engaged in certain criminal conduct and that the identified telephones were being

used to facilitate that conduct. (Def. Ex. A at 1-2). 1 Acting on that finding, in March 2021, it

issued an order authorizing the interception of wire and electronic communications from three

telephones, including one belonging to Joseph. Among other things, the order directed as

follows:

All monitoring of wire and electronic communications be conducted in such a
way as to minimize the interception and disclosure of communications not
relevant to the investigation, or otherwise criminal in nature. Monitoring of
conversations will terminate immediately when it is determined that the
conversation is unrelated to communications subject to interception under
18 U.S.C. Ch. 119.

(Id. at 6). It also required periodic status reports to the court. (Id. at 8).

In accordance with that order, agents monitoring communications were instructed as to

the importance of minimizing non-pertinent calls in a memorandum prepared by the supervising

attorneys. As relevant here, that memorandum noted that a determination of a call’s pertinence

“should not take longer than two minutes.” (Gov. Mem. at 5). Agents were provided a copy of

the court’s order and the minimization memorandum, and attended a meeting to review the

minimization requirements. Each monitoring agent was required to certify that they had

1
The court specifically found probable cause to believe that Joseph had committed, was committing, and
would continue to commit offenses enumerated in 18 U.S.C. § 2516, including, specifically, possession and
distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1); use of a communication facility in the
commission of drug-trafficking offenses in violation of 21 U.S.C. § 843(b)(3); conspiracy to commit drug-
trafficking offenses, in violation of 21 U.S.C. § 846; and money laundering in violation of 18 U.S.C. §§ 1956 and
1957. (Def. Ex. A at 1-2).

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reviewed those documents before participating in the authorized surveillance. (Gov. Mem. at 3).

Interceptions of Joseph’s telephone calls under the initial order began on March 23, 2021,

and were terminated on April 21, 2021. (Powers Aff. ¶ 16, ECF No. 4-2). During the monitored

calls, Joseph allegedly discussed schemes for importing cocaine from the Dominican Republic

with several co-conspirators. (Def. Ex. D at 23-54). Agents also overheard him discussing what

seemed to be a scheme to fraudulently obtain Payroll Protection Program (“PPP”) loans. (Id.

at 52-54). Agents corroborated information acquired through the wiretap with other means, such

as the execution of search warrants and the seizure of parcels containing cocaine.

On April 28, 2021, the court issued a second order authorizing the continued monitoring

of Joseph’s telephone number. In support of the application for that order, Powers submitted a

second affidavit that detailed some of the information that investigators had gleaned from the

surveillance authorized by the initial order. (Def. Ex. D). He included information about the

apparent PPP loan scheme. (Id. ¶¶ 71-72). On that basis, the court found there was probable

cause to believe that Joseph was engaged in wire fraud, in violation of 18 U.S.C. § 1343. (Def.

Ex. B at 1-3). The extension order authorized surveillance of two of the same telephones that

were the subject of the initial order, targeting the same offenses together with the wire-fraud

offense. (Id.). The order also contained the same minimization requirements that appeared in

the initial order. (Id. at 2, 6). Surveillance of the target telephones resumed on April 28, 2021,

and continued until Joseph was charged by criminal complaint on May 26, 2021.

B. Procedural Background

Defendant was initially charged with conspiracy to distribute and possess with intent to

distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. (ECF No. 4). He was later

indicted for conspiracy to commit the same offense, also in violation of 21 U.S.C. § 846. (ECF

No. 74). On November 22, 2021, he was separately indicted for conspiracy to commit bank and

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wire fraud, in violation of 18 U.S.C. § 1349, wire fraud, in violation of 18 U.S.C. § 1343, and

bank fraud, in violation of 18 U.S.C. § 1344. See United States v. Joseph, No. 21-10338 (D.

Mass. 2021).

In November 2023, defendant moved to suppress “all wire and electronic

communications and derivative evidence” obtained pursuant to the court’s Title III orders. He

contends that the orders and surveillance were unlawful because (1) the orders did not have the

requisite particularity required by the Fourth Amendment, (2) the orders failed to comply with

the requirements of Title III, (3) the extension order impermissibly expanded the target offenses

to include wire fraud, and (4) the government violated the court’s orders by failing to

“immediately” minimize non-pertinent calls, (Def. Mot. at 1). He contends that those violations

warrant the total suppression of any evidence collected during the government’s wiretap. He has

further requested an evidentiary hearing to develop a factual record.

II. Analysis

A. Title III Orders

Defendant contends that the wiretap orders are facially invalid because they permit agents

to continue listening to calls that do not necessarily relate to the target offenses but are

“otherwise criminal in nature.” (Def. Exs. A and B). In his view, that clause circumvents the

specificity required by both the Fourth Amendment and Title III in obtaining wiretap orders.

The Fourth Amendment requires that warrants may only issue when it “particularly

describe[es] the place to be searched, and the persons or things to be seized.” Berger v. New

York, 388 U.S. 41, 55 (1967) (quoting U.S. Const. amend. IV). “In the wiretap context, those

requirements are satisfied by identification of the telephone line to be tapped and the particular

conversations to be seized.” United States v. Donovan, 429 U.S. 413, 427 n.15 (1977).

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Title III, meanwhile, requires the government to conduct its surveillance “in such a way

as to minimize the interception of communications not otherwise subject to interception.”

18 U.S.C. § 2518(5). A wiretap authorization must contain, among other things, “a statement of

the particular offense to which [the communication to be intercepted] relates.” 18 U.S.C.

§ 2518(4)(c). But Title III also provides that, in some circumstances, “intercepted conversations

involving crimes other than those identified in the order may be used in evidence.” United States

v. Kahn, 415 U.S. 143, 154 n.13 (1974); see also 18 U.S.C. § 2517(5).

If an order is facially invalid under Title III, the statute provides for the suppression of

wiretap evidence on the ground that “the order of authorization or approval under which it was

intercepted [was] insufficient on its face[.]” 18 U.S.C. § 2518(10)(a)(ii). Even still, “not every

defect results in an insufficiency” warranting suppression. Dahda v. United States, 584 U.S.

440, 450 (2018). Even if an order includes defective language, provided it contains the

minimum statutory requirements, it will not be “insufficient” within the meaning of Title III. Id.

Here, the court’s orders were facially valid. Both authorizations specifically described

the target telephones to be tapped, including one associated with defendant, and specifically

listed the target offenses. (Def. Exs. A and B). The court clearly set forth the circumstances in

which a call could be intercepted by law enforcement and provided specific procedures to avoid

impermissibly intruding into irrelevant conversations, including the minimization language at

issue. The minimum requirements for such an order were therefore met. Even if the specific

language of the minimization order was defective, therefore, that alone would not be enough to

vitiate the fact that the authorizations complied with Title III. See Dahda, 584 U.S. at 450.

Even if the minimum requirements were not met, allowing agents to listen to other calls

that were “otherwise criminal in nature,’ accounts for the fact that monitoring agents may

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overhear information relating to “both a specified offense and to an unspecified offense.” United

States v. London, 66 F.3d 1227, 1234-35 (1st Cir. 1995). In those situations, the government

need not ignore that new information, unless the interception was “motivated by an illicit

purpose,” such as using a target offense to circumvent the probable-cause requirement to target

an unauthorized offense. Id.; see also United States v. Southard, 700 F.2d 1, 29 (1st Cir. 1983)

(“Officers attending a properly authorized, limited, and supervised wiretap have no obligation to

close their ears to unexpected incriminating information on matters unrelated to their immediate

investigation.”); United States v. Ramirez, 112 F.3d 849, 851 (7th Cir. 1997) (“[I]f government

agents execute a valid wiretap order . . . and at the same time overhear incriminating

conversations, the record of the conversations is admissible in evidence.”). That general

principle is similar to the plain-view doctrine of the Fourth Amendment, which permits agents

who observe criminal conduct from a lawful vantage to present evidence of that conduct. United

States v. Hernandez-Mieses, 931 F.3d 134, 140 (1st Cir. 2019).

The orders here, therefore, complied with the requirements of the Fourth Amendment and

Title III, and the motion will be denied as to its claim that they were facially insufficient.

B. Extension Order

Defendant next contends that there was insufficient probable cause to support the court’s

addition of wire fraud to the target offenses in the extension order, that there was no showing that

it was “necessary” within the meaning of Title III, and that the government failed to obtain court

authorization for listening for evidence of wire fraud “as soon as practicable.”

In reviewing the decision to issue a wiretap order, a court must “examine[] the face of the

affidavit and ‘decide if the facts set forth in the application were minimally adequate to support

the determination that was made.’” United States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir.

2003) (quoting United States v. Ashley, 876 F.2d 1069, 1074 (1st Cir. 1989)).

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1. Probable Cause

Before a wiretap can be authorized, Title III requires that the government show “there is

probable cause for belief that an individual is committing, has committed, or is about to commit

a particular offense.” 18 U.S.C. § 2518(3)(a). “Probable cause exists when the affidavit

demonstrates in some trustworthy fashion the likelihood that an offense has been or is being

committed.” United States v. Santana, 342 F.3d 60, 65 (1st Cir. 2003) (citing United States v.

Vigeant, 176 F.3d 565, 569 (1st Cir. 1999)). A reviewing court must consider the “totality of the

circumstances stated in the affidavit” and make a “practical, common-sense determination,

according deference to reasonable inferences that the issuing judge may have drawn.” United

States v. Sylvestre, 78 F.4th 28, 33 (1st Cir. 2023) (quotations and citations omitted), cert.

denied, 144 S. Ct. 370 (2023); see also Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)

(“[P]robable cause requires only a probability or substantial chance of criminal activity, not an

actual showing of such activity.”).

Defendant specifically challenges the court’s finding of probable cause to believe he was

engaged in wire fraud. In the affidavit in support of the government’s application to extend the

Title III order, Powers submitted specific evidence of intercepted conversations that he believed

provided probable cause for wire fraud, including an assertion that the fraudulent scheme was

being used to facilitate money laundering. (Def. Ex. D ¶¶ 45, 71-72). The affidavit included

details of intercepted conversations between defendant and an alleged co-conspirator, which

appear to have included methods of obtaining loans, ensuring forgiveness of those loans despite

lacking the required criteria, and plans to divide the proceeds between would-be applicants and

themselves. (Id.).

In considering the totality of the circumstances, the facts that set forth the affidavit are

substantially beyond the “minimally adequate” threshold to establish probable cause to believe

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that defendant was involved in a wire fraud scheme involving PPP loans, and that further

interception would reveal more information about his involvement in that offense.

Moreover, even assuming the order were invalid, it was certainly not so clearly invalid to

overcome the monitoring agents’ reasonable, good-faith reliance on them, which alone would

counsel against suppression. See United States v. Leon, 468 U.S. 897, 926 (1984).

Accordingly, the motion will not be granted on that basis.

2. Necessity

Under Title III, a wiretap application must include “a full and complete statement as to

whether or not other investigative procedures have been tried and failed or why they reasonably

appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). “[T]he

government is not required to show that other investigative methods have been wholly

unsuccessful,” only that “it has made a reasonable, good faith effort to run the gamut of normal

investigative procedures before resorting to means so intrusive as electronic interception of

telephone calls.” United States v. Cartagena, 593 F.3d 104, 109 (1st Cir. 2010) (quotations and

citations omitted). “The determination of necessity is properly committed to the issuing judge in

the first instance, and [the reviewing court] will uphold the sufficiency of the affidavit wherever

‘the issuing court could have reasonably concluded that normal investigatory procedures

reasonably appeared to be unlikely to succeed.’” United States v. Yeje-Cabrera, 430 F.3d 1 (1st

Cir. 2005) (quoting United States v. Lopez, 300 F.3d 46, 53 (1st Cir. 2002)). An order may be

upheld “based on an agent’s plausible, good faith “assert[ion of] a well-founded belief that the

techniques already employed during the course of the investigation had failed to establish the

identity of conspirators, sources of drug supply, or the location of drug proceeds.” United States

v. Gordon, 871 F.3d 35, 46 (1st Cir. 2017) (quoting United States v. Rodrigues, 850 F.3d 1, 10

(1st Cir. 2017)); see also Ashley, 876 F.2d at 1074 (finding wiretap application and supporting

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affidavit sufficient where the agent believed that further interceptions would “illuminate details

of the cocaine conspiracy including the roles of the participants and the financial backing”).

Defendant does not appear to contest that the government adequately demonstrated

“necessity” concerning the drug-related crimes. Instead, he contends that it did not exhaust its

investigative options specifically as to the wire-fraud allegation contained in the second affidavit.

In support of that position, he points out that Powers appears to admit that other investigative

efforts were being made when he prepared the affidavit. (Def. Ex. D ¶ 89).

In the same affidavit, however, Powers directly discussed the financial investigation into

defendant, including his business and real-estate holdings, along with his alleged co-conspirators.

(Id. ¶¶ 83-89). That discussion concluded that the possible loan-fraud scheme was connected to

money-laundering efforts that were, in turn, part of the drug-trafficking organization, but that the

financial investigation had been able to reveal that connection. (Id. ¶ 89). In discussing the prior

wiretap, the affidavit also specified that “[p]rior intercepted communications and a review of

financial records have, thus far, not shown that [defendant] is paying these loan applicants in

cash drug proceeds to pay-off the loans in return for them writing checks to him that creates the

appearance of legitimate income.” (Id. ¶ 94).

If the only goal of the investigation was to uncover evidence of wire fraud, defendant

may have been correct that other investigative techniques might have been sufficient. But when

the court issued the extension order, wire fraud was only a component of the broader

investigation into the tactics and practices of a large drug-trafficking organization—and agents

were engaged in a process of understanding its full extent. While the government had already

achieved some success in investigating that organization, the fundamental purpose of the

extension order was to continue that same inquiry. Given that scope, Powers addressed a nearly

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exhaustive list of alternative techniques that had either been attempted, or he believed would be

fruitless to attempt, including the use of informants and undercover agents, financial

investigations, prior wiretaps, interviews of subjects, use of pen registers and other technologies,

search warrants, discarded trash, physical surveillance, and arrests. The affidavit reveals

Powers’s “well-founded belief” that the loan-fraud scheme could have been—or even was

likely—part of the money-laundering cog of a larger criminal machine. To understand that

machine, he articulated that a wiretap was “necessary” to “lay[] bare the full reach of the crimes

that [were] under investigation.” See United States v. Santana-Dones, 920 F.3d 70, 77 (1st Cir.

2019); see also United States v. Santiago, 389 F. Supp. 2d 124, 128-29 (D. Mass. 2005).

Accordingly, the motion will not be granted on this basis.

3. “As Soon as Practicable”

Finally, defendant contends that the government improperly failed to apply for a new

Title III warrant that included wire fraud as a target offense between first learning of its

possibility on March 24, 2021, until the extension order on April 28, 2021. 2

Although the precise contours of what interval is “as soon as practicable,” the bare

assertion of a violation cannot by itself warrant suppression. See Southard, 700 F.2d at 30-31

(upholding the grant of a subsequent wiretap application after a 19-month delay). Defendant has

not alleged that any delay prejudiced him in any way, and nothing suggests that the delay was

intended as a “subterfuge,” undermining the essential purposes of Title III. See id. Therefore,

based on the present record, any delay did not violate the requirements of Title III, and

defendant’s motion will not be granted on that basis.

2
The government has represented that it informed the court of the possible wire-fraud conduct at its first
progress report with the court, two weeks after the wiretap began. (Gov. Opp’n at 17).

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C. Minimization

Defendant next contends that the government failed to abide by the court’s minimization

order, which directed that monitoring agents minimize calls “immediately” after determining that

they were not pertinent to the investigation. That claim is based on an apparent grouping of non-

pertinent calls that were minimized after agents listened for approximately two minutes.

1. Evidentiary Burden

A threshold issue is who bears the evidentiary burden to show that suppression is

appropriate at this stage. The First Circuit has not directly addressed which party bears the

burden of showing adequate minimization procedures upon a motion to suppress. See United

States v. Lopez, 2000 WL 761977, at *6 (D. Me. Apr. 28, 2000), aff’d, 300 F.3d 46 (1st Cir.

2002); United States v. Tam, 2023 WL 4304667, at *6 n.11 (D. Mass. June 30, 2023). Many

courts, however, have employed a burden-shifting approach under which, when minimization

procedures are challenged, the government bears an initial burden to show that its tactics were

prima facie reasonable. Tam, 2000 WL 761977, at *6 (collecting cases). If that threshold is met,

the burden shifts to the defendant to establish the government’s procedures were inadequate. Id.

Although the burden-shifting framework has not been established in the First Circuit, the

Court is persuaded in light of its supporting authority that it represents a practical and sensible

approach, and accordingly will follow it here.

2. The Government’s Initial Burden

Every Title III order must “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 under this chapter . . . .” 18 U.S.C. § 2518(5); see also Scott v. United

States, 436 U.S. 128, 140 (1978) (explaining that Title III “instructs the agents to conduct the

surveillance in such a manner as to minimize the interception of [irrelevant] conversations”).

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Where, as here, the authorizing order instructs the government to minimize non-pertinent

communications, a court must determine whether its monitoring agents’ efforts were objectively

reasonable given the circumstances they confronted. Scott, 436 U.S. at 138. To determine

whether the agents’ actions were reasonable, courts may consider a variety of factors, including

“(1) the nature and complexity of the suspected crimes; (2) the thoroughness of the government’s

precautions to bring about minimization; and (3) the degree of judicial supervision over the

surveillance process.” Gordon, 871 F.3d at 48 (quoting Lopez, 300 F.3d at 57). In particular,

“where an investigation involves a drug ring of unknown proportion, as in this case, ‘the need to

allow latitude to eavesdroppers is close to its zenith.’” United States v. Charles, 213 F.3d 10, 22

(1st Cir. 2000) (quoting United States v. Hoffman, 832 F.2d 1299, 1308 (1st Cir. 1987)).

“Blanket suppression of wiretap evidence is a ‘drastic’ remedy, which should be reserved for the

most ‘egregious’ cases.” Gordon, 871 F.3d at 47 (quoting Hoffman, 832 F.2d at 1309).

As discussed, the government bears an initial burden to show that its actions were

reasonable in light of the objective circumstances. The factors endorsed by the First Circuit in

Gordon guide that analysis.

First, this case involved an investigation into a complex conspiracy involving multiple

participants. Many of those individuals appear to have shared familial or social relationships

along with their allegedly criminal ties. Defendant spoke multiple languages, including English

and Haitian Creole. (See Def. Ex. E); see also Gordon, 871 F.3d at 48 (“The use of a foreign

language itself supplies an extra layer of complexity.”). And, unsurprisingly, the conversations

often contained a mixture of pertinent and non-pertinent information, and included cryptic and

apparently coded references. The monitoring agents’ latitude in determining whether a call is

pertinent is therefore at its “zenith” here because of the difficulties of understanding the

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conversations and untangling personal from criminal connections. Charles, 213 F.3d 22; see,

e.g., Tam, 2023 WL 4304667, at *5; United States v. Alkayisi, 2023 WL 7134848, at *3 (D.

Mass. Oct. 30, 2023); United States v. Le, 377 F. Supp. 2d 245, 266-68 (D. Me. 2005), aff’d sub

nom. United States v. Cao, 471 F.3d 1 (1st Cir. 2006). It can take investigators time to make a

reasonable determination of the pertinence of any single call, especially where, as here, subjects

might be speaking different languages, using coded words and phrases, or exchanging

pleasantries and news before turning to more relevant matters.

Furthermore, investigations such as this are dynamic, and the importance of some

information is not always immediately apparent; some details may only reveal their significance

in either the broader context of the investigation or the narrower context of the mode and

speakers involved in a given conversation. During the two wiretaps at issue, agents were still

investigating who the conspirators were, how they were transporting drugs, and what coded

language they used to refer to their operations. (Def. Ex. D at 23-54). It is telling, for example,

that between the initial and extension orders, the investigation expanded to include fourteen

additional subjects. (See Def. Exs. A and B).

Second, the government took clear precautions to ensure that its agents complied with the

orders’ minimization requirements. Along with the minimization memorandum, a supervising

attorney specifically briefed the monitoring agents concerning the importance of minimization,

ensured that both the orders and memorandum were available to the monitors, and mandated that

every monitor certify that they had reviewed both documents. (Gov. Mem. at 3). The

government has also provided statistical data showing that out of 687 non-pertinent calls, 296

lasting more than two minutes—or 43 percent—were minimized. (Gov. Ex. F). By contrast, the

First Circuit in Gordon denied suppression after finding that less than a third of non-pertinent

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calls had been minimized. See Gordon, 871 F.3d at 49 (finding a failure to minimize more non-

pertinent calls did not cause a “taint upon the investigation as a whole”). In other words, the

degree of the government’s accuracy in minimizing non-pertinent calls exceeded the permissible

level from Gordon by at least ten percent. See id. 3

Third, there was significant judicial supervision of the surveillance process. The court

was provided regular progress reports, and properly extended the initial Title III order to include

another target offense. There is no indication, and defendant does not assert, that the degree of

judicial supervision was inadequate in any respect.

Although Title III requires minimization, it does not require perfection in execution. It is

the “facts and circumstances of each case” that dictate whether the government’s actions were

reasonable, not any categorical bar. Scott, 436 U.S. at 140. In light of the present record here,

the government has met its burden to show its tactics were prima facie reasonable. The burden

therefore shifts to defendant to refute that showing.

3. Defendant’s Response

Defendant has not produced evidence of a statistically significant pattern, or any other

substantial evidence, to support the assertion that there existed an unwritten policy requiring

agents to listen to a call for two minutes without regard to whether it was pertinent. Cf. Gordon,

871 F.3d at 49 (“Tellingly, there is no evidence of a slew of examples of calls that plainly should

have been minimized in less than two minutes, but were not.”). In fact, the government has

submitted statistical evidence that, of the calls that themselves lasted for less than two minutes,

3
The same statistical analysis also discloses that 68 intercepted calls were marked as “privileged,” again
suggesting an awareness and desire to comply with the wiretap restrictions. (Gov. Ex. A).

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many were terminated before they concluded—something that would not have occurred if the

alleged policy was actually in place.

Even if the Court were to agree with defendant’s basic proposition—that there is a pattern

of calls minimized “around” two minutes—that fact alone does nothing to suggest a pattern of

egregious behavior. Indeed, in light of the government’s memorandum instructing its agents that

their decision on whether to minimize should take “no more than two minutes,” any apparent

grouping around that timeframe could equally suggest conscientious compliance with the

requirements of Title III, given that an agent might opt to end a plausibly pertinent call early so

as to obey the guideline instruction.

In sum, the government has met its burden to show that its actions were prima facie

reasonable in light of the objective circumstances it faced, and defendant has not overcome that

showing. There is, accordingly, no basis to conclude that the challenged procedures were so

“egregious” as to warrant suppression, and the motion to suppress that evidence will therefore be

denied.

D. Evidentiary Hearing

No criminal defendant has “a presumptive right to [a general] evidentiary hearing on a

motion to suppress.” Gordon, 871 F.3d at 47-48 (citing United States v. D’Andrea, 648 F.3d 1, 5

(1st Cir. 2011)). “A hearing is required only if the movant makes a sufficient threshold showing

that material facts are in doubt or dispute, and that such facts cannot reliably be resolved on a

paper record.” United States v. Staula, 80 F.3d 596, 603 (1st Cir. 1996) (citation omitted).

An evidentiary hearing is not warranted here. Defendant has not demonstrated that there

is any doubt or dispute over the facts at issue that cannot be resolved on the present record.

Accordingly, that request will be denied.

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III. Conclusion

For the foregoing reasons, defendant’s motion to suppress wire and electronic

communications is DENIED.

So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: February 6, 2024 Chief Judge, United States District Court

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File: 395.pdf
Size: 215,655 bytes
SHA-256: 95491cf5bfec65e5c6a07fc50c885e784744b849ffd2b25a9895989539c97433
Our copy: 395.pdf
Original: No public link identified.