United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
A. HOWELL Chief Judge.
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
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.
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.
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.
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.”
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.
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.
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.
The Defendants Have Standing to Challenge the Administrative
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.
Standing Conferred by the Fourth Amendment
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.,
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. 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 ...