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United States v. Apodaca

United States District Court, District of Columbia

April 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
AGUSTIN FLORES APODACA and PANFILO FLORES APODACA, Defendants.

          MEMORANDUM OPINION AND ORDER

          BERYL A. HOWELL Chief Judge.

         The government seeks enforcement of two administrative subpoenas issued by the Federal Bureau of Investigation (“FBI”) demanding production of the jail calls of the defendants Agustin Flores Apodaca and Panfilo Flores Apodaca recorded by the D.C. Department of Corrections (“DOC”). See Gov't's Mot. Release Defs.' Jail Calls (“Gov't's Mot.”) at 1-2, ECF No. 23. After receiving the administrative subpoenas, DOC's General Counsel delivered the recordings on two CDs to the Court, along with a letter describing the circumstances in which the administrative subpoenas were received and attaching supporting documentation, which documents were filed on the docket. See Court's Notice to Parties, ECF No. 20. For the reasons set forth below, the government's motion is granted.

         I. BACKGROUND

         On May 2, 2012, a grand jury in this District returned a two-count indictment against Agustin Flores Apodaca and two other individuals for violations of the United States Code's prohibitions against conspiring to traffic controlled substances and possessing a firearm in furtherance of the same. See Indictment, United States v. Agustin Flores Apodaca, Criminal Action No. 12-116 (D.D.C. May 2, 2012), ECF No. 1. Almost two years later, on March 13, 2014, a grand jury in this District returned a substantially similar indictment against Panfilo Flores Apodaca. See Indictment, United States v. Panfilo Flores Apodaca, Criminal Action No. 14-57 (D.D.C. Mar. 13, 2014), ECF No. 1. Both Agustin and Panfilo Flores Apodaca were extradited to the United States from Mexico and are now joint defendants in this consolidated criminal case. See Gov't's Mot. at 2; Min. Entry, dated Jan. 6, 2017.[1]

         On December 15, 2016, the government served on DOC two subpoenas duces tecum, pursuant to Federal Rule of Criminal Procedure 17, requesting production of “the recorded calls for inmate AGUSTIN FLORES APODACA . . . from January 5, 2016 through the present.” Notice to Parties at 3-6. The subpoenas “commanded” that DOC bring the recordings to the Court on December 28, 2016, but advised that DOC “may comply with this subpoena by providing the requested information on a compact disk [sic] to [government counsel].” Id. In response to the subpoenas, DOC prepared the calls, which were picked up by a courier for the government on January 3, 2017. See Id. at 1.

         On January 17, 2017, counsel for Agustin informed DOC in an email that he “ha[d] learned that the prosecutors . . . recently served a subpoena on [DOC] requesting copies of [Agustin's] recorded jail phone calls and making the documents returnable to the prosecutors directly.” Id. at 7. Citing the holding in United States v. Binh Tang Vo, 78 F.Supp.3d 171 (D.D.C. 2015), that “Rule 17 does not permit the government to ‘invite' pretrial production absent court approval, ” id. at 178 (internal capitalization omitted), counsel asserted that the procedure by which the government in this case obtained Agustin's jail calls was unlawful. See Notice to Parties at 7. Counsel further explained that he “advised the prosecutors that the manner in which they obtained the phone calls was unlawful and they replied that they were now going to obtain the calls ‘by other means, '” which he “infer[red]” meant “a request by the U.S. Marshals to the jail to obtain copies of the phone calls, ” i.e., a request that DOC voluntarily produce the calls to the government. Id. at 7. Expressing the view that DOC “ought [not] be complicit in the federal prosecutors['] efforts to make an ‘end run' of the legal system, ” counsel warned that “such disclosure [by DOC] could well result in legal action” by the defendant against DOC. Id. In a second email the same day, Agustin's counsel cited DOC's FOIA Program Manual to support the defendant's position. Id. at 8. That manual provides, “Copies of . . . recorded telephone conversations, or written transcripts, shall only be disclosed to a requesting law enforcement agency when, ” inter alia, “[r]equested through proper judicial process (e.g. grand jury or court issued subpoena and court orders).” DOC FOIA Program Manual, 1300.1G, ch. 5(2)(c)(2). DOC's General Counsel informed Agustin's counsel that her “staff was instructed last week that information subpoenaed in this case is to be provided to the Court for the judge to address the parties' pretrial discovery disputes.” Notice to Parties at 11.

         In her letter, DOC's General Counsel advises the Court that, around the time of Agustin's counsel's initial email, she received a phone call from government counsel, who “requested that [DOC] provide him with the calls without a subpoena.” Id. at 2. DOC's General Counsel declined to do so, “citing policy.” Id. Counsel for the government then asked “if [DOC] would instead accept an administrative subpoena from DEA or FBI.” Id. DOC's General Counsel again declined, “citing policy, ” as well as “the discovery dispute between the parties, ” and suggested that government counsel “address[] the matter with the Court.” Id.

         Notwithstanding DOC's General Counsel's suggestion that government counsel resolve the discovery dispute with the Court, on February 9, 2017, DOC received two administrative subpoenas from the FBI, issued pursuant to 21 U.S.C. § 876, requesting DOC's recorded calls for each defendant from the period October 21, 2015, to February 7, 2017. Id. at 13-20. Without responding to these subpoenas, on February 17, 2017, DOC's General Counsel sent a letter to the Court describing the events outlined above and attaching counsel's correspondence and the relevant subpoenas, as well as two CDs containing the recordings targeted by the administrative subpoenas. See generally Notice to Parties. The documents, though not the CDs themselves, were filed on the docket on February 21, 2017. See generally id.

         At a status hearing on March 3, 2017, counsel for the government orally raised the matter of the jail calls with the Court for the first time, requesting that the recordings be turned over to the government during the hearing. Government counsel explained he was in possession of the set of calls picked up by courier on January 3, 2017, which Agustin's counsel asserts were procured in violation of Rule 17(c)'s court order requirement, but that the government sought the two CDs in the possession of the Court because those recordings comprised a more comprehensive set of calls. Agustin's counsel indicated that, despite asking counsel for the government in advance of the status conference whether the government intended to request any relief from the Court, he had received no advance notice of the government's request, and asked that the government be directed to file a written motion. In view of dispute between the parties and to give the defendants an opportunity to detail their positions, the Court directed the government to submit a motion regarding its request for the recordings. See Min. Entry, dated Mar. 3, 2017. On March 15, 2017, the government submitted a Motion to Release Defendants' Jail Calls. This motion is now ripe for consideration.

         II. DISCUSSION

         In its briefing, the government asserts a right to enforcement of the administrative subpoenas for production of the defendants' recorded jail calls. Principally, the government contends that it has satisfied the statutory requirements for issuance of the subpoenas. In addition, in reply, the government asserts that the defendants were not the recipients of the subpoenas, and, consequently, lack standing to challenge them. See Gov't's Reply Defs.' Opp'n Gov't's Mot. Release Jail Phone Calls (“Gov't's Reply”) at 2-6, ECF No. 29. Ordinarily, “[i]ssues may not be raised for the first time in a reply brief.” Rollins Envtl. Servs. (NJ) Inc. v. EPA, 937 F.2d 649, 652 n.2 (D.C. Cir. 1991); see McBride v. Merrell Dow and Pharm., Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) (“Considering an argument advanced for the first time in a reply brief . . . is not only unfair to [a non-movant], but also entails the risk of an improvident or ill-advised opinion on the legal issues tendered.” (citations omitted)). Given that the question of standing implicates the Court's jurisdiction, however, that issue is addressed at the threshold.

         A. The Defendants Have Standing to Challenge the Administrative Subpoenas

         The government contends that the defendants lack standing to object, either under the Fourth Amendment or the statute itself, to enforcement of the administrative subpoenas. See Gov't's Reply at 2-6. While the government is correct that the defendants lack Fourth Amendment standing, the defendants do possess standing to challenge whether the subpoenas were properly issued under the applicable statute.

         1. Standing Conferred by the Fourth Amendment

         Where a party is not the recipient of a subpoena, standing to challenge its issuance on Fourth Amendment grounds exists only where the party has a legitimate expectation of privacy in the targeted records. See United States v. Phibbs, 999 F.2d 1053, 1078 (6th Cir. 1993). To determine whether such an expectation exists, courts consider whether (1) “a person . . . exhibited an actual (subjective) expectation of privacy” and (2) “the expectation [is] one that society is prepared to recognize as ‘reasonable.'” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

         The defendants assert that the use of administrative subpoenas to target their jail calls “implicates the Fourth Amendment” because the defendants “maintain[] a reasonable expectation of privacy” in the subject calls. Def. Panfilo Flores Apodaca's Mot. Opp'n Gov't Mot. Release Jail Phone Calls (“Panfilo's Opp'n”) at 5, ECF No. 25.[2] The government asserts that “defendants were put on notice and consented to having their phone calls monitored, recorded and divulged, ” citing DOC's written policies on inmate phone calls, and thus have no legitimate expectation of privacy in the calls. Gov't's Reply at 5-6. The vast weight of authority supports the government's position that, even assuming the defendants in this case subjectively believed that their calls were private, any such belief was unreasonable. See, e.g., Lanza v. New York,370 U.S. 139, 143 (1962) (in jail setting, “official surveillance has traditionally been the order of the day”); United States v. Shavers, 693 F.3d 363, 389-90 (3d Cir. 2012), vacated on other grounds, 133 S.Ct. 2877 (2013) (holding inmates and those with whom they converse have no “objectively reasonable expectation of privacy” in telephone conversations where inmates “received a handbook alerting [them] that all telephone calls were recorded” and were “exposed to a document hanging in the common areas that notified prisoners that their calls might be monitored and recorded”); United States v. Monghur, 588 F.3d 975, 978-79 (9th Cir. 2009) (“[The defendant] concedes, as he must, that he had no expectation of privacy” in “jail telephone conversations that he knew were monitored by law enforcement.”); United States v. Novak, 531 F.3d 99, 102 (1st Cir. 2008) (O'Connor, J., sitting by designation) (“[I]nmates and pretrial detainees who have been [given notice of monitoring of jail calls] have been deemed to have consented to monitoring.”); United States v. Friedman, 300 F.3d 111, 123 (2d Cir. 2002) (holding notice received by pretrial detainee of recording of calls disposed of his Fourth Amendment claims related to recordings, “as he had no reasonable expectation of privacy under the circumstances”); United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996) (“[N]o prisoner should ...


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