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United States v. Apodaca

United States District Court, District of Columbia

December 28, 2017

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

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE.

         This is the third opinion issued in this case. See United States v. Apodaca (“Apodaca I”), 251 F.Supp.3d 1, 2 (D.D.C. 2017) (granting the government's motion to enforce two administrative subpoenas); United States v. Apodaca (“Apodaca II”), Crim. No. 14-57 (BAH), 2017 U.S. Dist. LEXIS 131617, at *73 (D.D.C. Aug. 17, 2017) (resolving pretrial motions).[1]Having already resolved eight pretrial motions in Apodaca II, six additional pretrial motions have now become ripe in advance of the trial, which is scheduled to begin on February 5, 2018.[2]The defendants, Agustin Flores Apodaca (“Agustin”) and Panfilo Flores Apodaca (“Panfilo”), who are indicted separately on two substantively similar counts of conspiring to traffic controlled substances and possessing a firearm in furtherance of the same, have filed five of the pending motions: (1) the defendants' Joint Motion to Suppress Title III Intercepts (“Defs.' Mot. Suppress T. III Intercepts”), ECF No. 33; (2) Agustin's Motion to Compel Discovery (“Agustin's Discovery Mot.”), ECF No. 40; (3) Panfilo's Motion to Join and Supplement Agustin's Motion to Compel Discovery (“Panfilo's Discovery Mot.”), ECF No. 41; (4) an amendment thereto (“Panfilo's Am. Discovery Mot.”), ECF No. 45; and (5) Agustin's Motion for In Camera Inspection of Grand Jury Minutes (“Def.'s Mot. GJ Inspection”), ECF No. 130. Also ripe for resolution is the government's Motion to Reconsider Use of Blackberry Communications Transcripts (“Gov't's BBMT Mot.”), ECF No. 95.

         The pending motions are addressed in the following order: Part I discusses the defendants' four motions seeking suppression of intercepted BlackBerry text messages and related discovery, ECF Nos. 33, 40, 41, and 45; Part II discusses the government's motion seeking reconsideration of the use at trial of certain transcripts of intercepted BlackBerry messages, ECF No. 95; and, finally, Part III discusses Agustin's motion for in camera inspection of grand jury minutes, ECF No. 130.[3]

         The general factual and procedural background in this case has been amply described in Apodaca II, 2017 U.S. Dist. LEXIS 131617, at *4-13, and will not be repeated here.

         I. DEFENDANTS' CHALLENGES TO TITLE III INTERCEPTED COMMUNICATIONS

         As part of a multi-prong challenge to the government's introduction of Title III intercepts at trial, the defendants have jointly moved to suppress “any and all communications intercepted by the Government pursuant to . . . Title III, ” on the ground that the orders authorizing the intercepts were “facially insufficient.” Defs.' Mot. Suppress T. III Intercepts at 1.[4] If their suppression motion is denied, the defendants seek to compel discovery of “[a]ll interceptions from the Title III investigation, from all target devices, ” including “[m]inimized interceptions of Defendant Panfilo.” Jt. Stm. Regarding Discovery (“Jt. Stm. Discovery”) ¶ 7, ECF No. 124; Agustin's Discovery Mot at 1; Panfilo's Discovery Mot. at 1; Panfilo's Am. Discovery Mot at 1. The defendants' suppression motion, followed by their motions to compel discovery, are discussed in turn.

         A. Defendants' Joint Motion to Suppress Title III Intercepts

         The government conducted a 22-month wiretap investigation between February 2013 and December 2014, during which the government submitted and obtained 27 applications for electronic intercepts and ultimately intercepted “thousands of pertinent electronic communications (Blackberry Messenger text messages [‘BBMs'])” from “over [59] different devices.” Gov't's Opp'n Defs.' Mot. Suppress T. III Intercepts (“Gov't's First Opp'n T. III Intercepts”) at 2-3, ECF No. 68. The first wiretap application and order targeted the electronic communications of Panfilo, who was using “Target Device 1.” Id. at 3-4. Over the course of the investigation, three additional BlackBerry devices used by Panfilo were subject to court- authorized interception. Id. In total, “[t]he government intercepted approximately 12, 500 pertinent electronic communications between Panfilo and other [alleged] co-conspirators.” Id. at 4. Apparently, these pertinent BBMs of Panfilo's were intercepted during thirteen months in 2013 and 2014: February through October, 2013, and May, June, July, and December 2014. See Gov't's Opp'n Defs.' Mot. Compel Discovery (“Gov't's Opp'n Defs.' Discovery Mots.”) at 3-4, ECF No. 44 (listing “periods of time” in which intercepted communications “are between Panfilo and various co-conspirators”); Defs.' Suppl. Reply Supp. Mot. Suppress T. III Intercepts (“Defs.' Second Reply Mot. Suppress T. III Intercepts”) at 4 n.1, ECF No. 92-2 (noting that Panfilo's Blackberry “was not intercepted during the period after October 2013 except for 30 day periods on or about May, July, and December 2014”). Agustin was imprisoned during the interceptions, and none of his communications were intercepted. Gov't's First Opp'n T. III Intercepts at 4.

         The government's initial application, seeking to intercept electronic communications over Target Device #1 was granted by the District Court in the Western District of Texas, on February 19, 2013. See Id. at 2-3; see also id., Ex. 1, Application for Interception for Electronic Communications (“Initial T. III App.”) ¶ 2, ECF No. 68-1; id., Ex. 2, Order Authorizing the Interception of Electronic Communications (“Initial T. III Order”) at 3-7, ECF No. 68-2. That first application and order, as well as the twenty-six that followed, all contained “the same information-a Government attorney's name in the application and order, and reference [to] the appropriately designated [Department of Justice (‘DOJ')] official, ” as is required by 18 U.S.C. § 2516(3) for interceptions of electronic communications. Gov't's First Opp'n T. III Intercepts at 3. Although “the Government sought only to intercept electronic communications when it first applied for judicial authorization, ” the wiretap also intercepted some “wire (voice) communications, ” mostly “in the form of ‘voice notes, '” which are in a compressed audio Adaptive Multi-Rate (“AMR”) file format. Gov't's' Third Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts (“Gov't's Fourth Opp'n T. III Intercepts”) at 3-4, ECF No. 113. The interception of these voice notes, or AMR files, was due to BMM's functionality in transmitting both audio and text communications over the same network and the Blackberry service provider's inability to disaggregate the two formats of communications. Gov't's Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts (“Gov't's Second Opp'n T. III Intercepts”) at 3-4, ECF No. 89. As the government explains, BBM is BlackBerry's “proprietary instant messaging service, ” and “[u]sers of BBM are able to attach video and audio files, including ‘voice notes, ' to standard text conversations and send these messages as BBM communications utilizing [BlackBerry's] network.” Id. at 3. BlackBerry announced the voice notes functionality in December 2012, three months before the wiretap investigation in this case began. Defs.' Third Reply Supp. Mot. Suppress Title III Intercepts (“Defs.' Fourth Reply Mot. Suppress T. III Intercepts”) at 2, ECF No. 129.

         The government does not dispute that wire communications in the form of AMR files were intercepted, along with the court-authorized electronic communications. To deal with the occurrence of unauthorized intercepted wire communications, monitors at the reviewing site in El Paso, Texas were directed, in accordance with the instructions in the government's applications and orders, promptly to minimize such communications. Gov't's Second Opp'n T. III Intercepts at 4; see also, e.g., Initial T. III App. at 8; Initial T. III Order at 6-7, ECF No. 68-2. The government instructed monitors not to listen to any unauthorized intercepted wire communications in both verbal instructions and in signs taped to monitors' computers that stated “Do Not Listen to Any Audio Files.” Jt. Stm. Discovery ¶ 5. At trial, the government plans to use as evidence only “lawfully intercepted electronic communications.” Gov't's Opp'n Defs.' Discovery Mots. at 3-4.

         The government has dribbled out information regarding the wiretaps, prompting over four rounds of briefing and two status conferences to clarify the basic facts related to this aspect of the government's investigation.[5] This approach to discovery is both unhelpful and unnecessarily time-consuming for the Court and the parties. Now, in the face of more complete discovery from the government, the defendants advance an evolved argument for suppression based on their understanding of the government's interceptions as being “hybrid” in nature and, as such, requiring authorization pursuant to the “‘wire' standard, ” instead of the standard for electronic communications. Defs.' Fourth Reply Mot. Suppress T. III Intercepts” at 8-9; Defs.' Reply Gov't's Second Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts (“Defs.' Third Reply Mot. Suppress T. III Intercepts”) at 4, ECF No. 104-2.[6]

         Specifically, the defendants reason that “the Government knew - or should have known” from the outset of the investigation that the wiretaps “would inevitably” capture both electronic and wire communications. Id.; Defs.' Second Reply Mot. Suppress T. III Intercepts at 7 (arguing that “the Government, with its expertise in the use of Blackberrys, knew BBM communications could or would invariably be a mixture of voice and audio communications”); Defs.' Reply Supp. Mot. Suppress T. III Intercepts at 4, ECF No. 82 (making same argument, citing Ian Austen, BlackBerry Phones Get Free Calls Over Wi-Fi, N.Y. Times (Dec. 10, 2012), https://bits.blogs.nytimes.com/2012/12/10/blackberry-phones-get-free-calls-over-wi-fi/). To underscore the point, the defendants cite the 170 AMR files intercepted, seven of which were erroneously marked “pertinent, ” as well as the government's representation that the first AMR file was intercepted on March 23, 2013, just over a month after the initial application in the wiretap, and that later wiretap affidavits and orders actually sought authorization to intercept wire communications. Defs.' Third Reply Mot. Suppress T. III Intercepts at 3; Defs.' Fourth Reply Mot. Suppress T. III Intercepts 2-7.[7] Given the interceptions of “hybrid” communications, in the defendants' view, the government should have sought authorization “to intercept ‘wire communications' ab initio, ” and such authorization, unlike for electronic communications, statutorily requires inclusion of the name of the authorizing high-ranking DOJ official on all applications and orders. Id. at 1. Absent the name of the authorizing high-ranking DOJ official, the defendants contend the interception orders are “facially defective” and must be suppressed under United States v. Scurry, 821 F.3d 1 (D.C. Cir. 2016). Id. at 1, 10. Thus, the defendants' challenge to the facial validity of the wiretap applications and orders rests on whether, in light of Blackberry's functionality and associated challenges in disaggregating different communication formats, the government was required to seek authorization to intercept wire communications and comply with statutory requirements applicable to wire communications, when only electronic communications were targeted for use at trial, with other communication formats minimized.

         At the outset, the government concedes that the seven AMR files improperly marked as pertinent must be suppressed. Gov't's Fourth Opp'n T. III Intercepts at 5 (citing United States v. Suggs, 531 F.Supp.2d 13, 24 (D.D.C. 2008), aff'd sub nom. United States v. Glover, 681 F.3d 411 (D.C. Cir. 2012)). The government posits, however, that suppression of the intercepted electronic communications is not warranted because the government only targeted electronic communications in connection with Panfilo and, thus, did not need to satisfy any different statutory authorization requirements applicable to wire communications with respect to those intercepts. See id. at 1. The fortuity “that voice notes can be transmitted over the BlackBerry system does little to alter the fact that the Government did not seek to intercept such communications for the first six months of this investigation.” Id. at 4. The government argues that the defendants' theory “would yield an absurd result” because “it would require the Government to adhere to the standards for interception of wire communications even where the Government seeks no such communications and lacks probable cause for such communications, simply because it is technically possible to intercept wire communications concurrently with electronic communications.” Id.[8] For the reasons explained below, the Court agrees with the government.

         1. Relevant Statutory Provisions

         When first enacted, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified at 18 U.S.C. §§ 2510-2522, addressed only the interception of wire and oral communications, and barred admission at trial of such communications, plus “evidence derived therefrom . . . if disclosure of that information would be in violation of this chapter, ” 18 U.S.C. § 2515. This law also authorized “[a]ny aggrieved person” to seek suppression of such communications, “or evidence derived therefrom, ” on the following three grounds: “(i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.” Id. § 2518(10)(a). Title III was amended in 1986, by the Electronic Communications Privacy Act of 1986 (“ECPA”), Pub. L. No. 99-508, 100 Stat. 1848 (1986), to expand certain protections provided to wire and oral communications, to electronic communications, see, e.g., 18 U.S.C. § 2511(1)(a), (c), (d) and (e) (penalizing unauthorized interception of wire, oral and electronic communications).[9] The parties agree that BBMs constitute “electronic communications” within the meaning of Title III. See Gov't's First Opp'n T. III Intercepts at 5 (“Electronic communications are non-voice communications made over a network in or affecting interstate commerce, which include communications sent by [BBM] text messages . . . .”); Defs.' Second Reply Mot. Suppress T. III Intercepts at 4; see also United States v. Jones, 451 F.Supp.2d 71, 75 (D.D.C. 2006), rev'd on other grounds, 615 F.3d 544 (D.C. Cir. 2010), aff'd, 132 S.Ct. 945 (2012)). While not altering the scope of the exclusion remedy, which continues to be limited to improper interception of wire and oral communications, see 18 U.S.C. § 2515, ECPA did amend other provisions of Title III to encompass “electronic communications.”

         In particular, as relevant to the instant suppression motion, Title III provides that an order “authorizing or approving the interception of any wire, oral, or electronic communication” must specify, inter alia, “the identity of the agency authorized to intercept the communications, and of the person authorizing the application.” Id. § 2518(4)(d). The statute further dictates who qualifies as a “person authorizing the application”: for wire and oral communications, “[t]he Attorney General, Deputy Attorney General, [and] Associate Attorney General, ” among other high-level DOJ officials, “may authorize an application, ” id. § 2516(1); and, for electronic communications, the amendments effected by ECPA provide that “[a]ny attorney for the Government (as such term is defined for purposes of the Federal Rules of Criminal Procedure) may authorize an application, ” id. § 2516(3) (emphasis added).

         2. Analysis

         The defendants argue that the wiretap orders at issue in this case are “insufficient on [their] face” for failing to identify the appropriate high-ranking DOJ official authorizing the interceptions. See Defs.' Mot. Suppress T. III Intercepts at 1, 4 (internal quotation marks and citation omitted). In advancing this argument, the defendants rely on Scurry, in which the D.C. Circuit held that “a [Title III] wiretap order is ‘insufficient on its face, ' 18 U.S.C. § 2518(10)(a)(ii), where it fails to identify the Justice Department official who approved the underlying application, as required by Title III, id. § 2518(4)(d).” Scurry, 821 F.3d at 5. Given that the orders authorizing the wiretaps in Scurry did not specify the statutorily required high-ranking DOJ official who had signed off on the underlying application, the D.C. Circuit mandated that the information collected pursuant to the wiretaps at issue be suppressed. Id.

         At issue in Scurry were wire communications.[10] By contrast, as noted, an order and application for interception of electronic communications may be authorized by “[a]ny attorney for the Government, ” as defined in the Federal Rules of Criminal Procedure. 18 U.S.C. § 2516(3). In this case, the applications were signed by “Andrea Goldbarg, Assistant Deputy Chief in the United States Department of Justice, ” Initial T. III App. at 1, and the initial order authorizing the interceptions at issue indicated that the application for the order had been submitted by “Andrea Goldbarg, Assistant Deputy Chief in the United States Department of Justice, ” Initial T. III Order at 1. The government maintains, and the defendants do not dispute, that Ms. Goldbarg is an attorney for the government, as contemplated by the Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 1(b)(1) (defining “attorney for the government” in pertinent part as “the Attorney General or an authorized assistant”); Gov't's First Opp'n T. III Intercepts at 10.[11] Thus, if the Title III orders at issue appropriately sought and were authorized to intercept electronic communications, they are not “insufficient on [their] face, ” 18 U.S.C. § 2518(10)(a)(ii), and the resultant interceptions are not subject to suppression. This leads directly to the key issue raised by the defendants that, in light of the “hybrid” interceptions of BBMs and AMR files, the applications and orders issued in connection with the underlying investigation should have complied with the statutory requirements applicable to wire communications.

         As noted, the defendants' evolved position, which relies heavily on legislative history, is that the government should have sought and obtained authorization to intercept both wire and electronic communications. See Defs.' Fourth Reply Mot. Suppress T. III Intercepts at 8-10; Defs.' Third Reply Mot. Suppress T. III Intercepts at 1-2. In particular, the defendants point to a House Judiciary Committee Report on ECPA, stating that: “The Committee understands that [DOJ] will apply for a court order under the ‘wire' standards in cases where a tap may intercept mixed wire and electronic communications, ” and “[a]s long as the wire standards are followed a single court order should suffice to authorize the interception of both wire and electronic communications involving the same lines of instruments.” Id. at 2 (quoting H.R. Rep. No. 99-647, at 35-36 (1986)).[12] This language is set in a paragraph acknowledging, given ECPA's new definition of “electronic communication, ” that “[a] transaction may consist, in parts, of both electronic communications and wire or oral communications, ” and that while “the transmission of data over the telephone is an electronic communication, ” parties' speaking “with one another between data transmissions, ” would be making a wire communication, ” and “a party's utterances into the telephone mouthpiece are an oral communication.” H.R. Rep. No. 99-647, at 35. In context, the purpose of this language appears to be to urge use of the “wire” standard when the targeted “transaction” contains different types of communications, subject to differing rules of disclosure; hence the report goes on to instruct that where interception of the entire communication is sought, “a single court order should suffice to authorize the interception of both wire and electronic communications involving the same lines or instruments.” Id. at 36.[13]This language simply begs the question at issue here of whether compliance with this “wire” standard is required when the “wire” parts of the communication are not part of the “transaction” targeted for interception.

         In short, this House Judiciary Committee Report language may bear on situations in which the government is actually seeking to capture both electronic and wire forms of communications, but this was not the government's intent here. The government only began collecting these AMR files in this case because of “a technological limitation.” Gov't's' Second Suppl. Opp'n Defs.' Mot. Suppress T. III Intercepts (“Gov't's Third Opp'n T. III Intercepts”) at 14, ECF No. 101-2. Indeed, as the government explains, BlackBerry was “unable to discern [whether] a particular BBM contain[ed] an embedded wire communication unless it manually reviewed the data for audio files, and concluded the audio files included the human voice, ” which BlackBerry declined to do. Gov't's Second Opp'n T. III Intercepts at 4; see also Status Conf. Hr'g (rough) Tr. (Aug. 17, 2017) at 70-79. As a result, BlackBerry “automatically” forwarded data, without separating the electronic from the wire communications, to the FBI Data Intercept Technology Unit (“DITU”) server, which then “automatically forwarded the messages in this case to specialized equipment located at the FBI El Paso Division, where it was reviewed by the monitors.” Gov't's Second Opp'n T. III Intercepts at 3. To address this technical challenge of disaggregating AMR files from the court-authorized electronic intercepts, the government took steps to ensure monitors minimized and did not listen to any unauthorized AMR and other audio files. See Gov't's Second Opp'n T. III Intercepts at 4; Jt. Stm. Discovery ¶ 5 (discussing verbal instructions and signage on minimization).[14]

         The government contends that “simply because it is technically possible to intercept wire communications concurrently with electronic communications, ” law enforcement should not be required to seek authority to intercept both under the wire standard. Gov't's Fourth Opp'n T. III Intercepts at 4. The perverse result of such a requirement would be that some communication technologies might be put outside the reach altogether of Title III surveillance or, alternatively, more intrusive surveillance may ensue. For example, if the government seeks, and only has probable cause sufficient, to intercept electronic communications, but due to the unique technology involved, the targeted electronic communications are transmitted simultaneously with wire communications, the government would be unable to obtain court authorization for the interception, at least or until, sufficient probable cause were developed to meet the standard for wire communication interceptions as well. Likewise, where the government may be able to establish probable cause to intercept wire communications, but only wants to obtain electronic communications, the government would have to seek authority for a hybrid wiretap, leading to more expansive surveillance, with concomitant privacy intrusions for the targets of the surveillance and the increased burden on the government to manage surveillance of multiple communication formats. This simply makes no sense as a policy matter, and is not required by the wiretap statute, which instead expressly contemplates using minimization procedures to address the capture of unauthorized communications, either in terms of format or content. 18 U.S.C. § 2518 (instructing that “[e]very order and extension thereof . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter”).

         The Court concludes that the government took appropriate steps to minimize wire communications, which were intercepted due to the technology subject to surveillance, and that the Title III applications and orders at issue are facially valid since they sought only the interception of electronic communications and, consequently, reflect the appropriate authorizing government attorney's approval.[15]

         The final issue raised by the defendants is whether the interception of seven AMR files, which the government concedes are wire communications and therefore were improperly marked “pertinent, ” requires suppression of the entire wiretap. See Defs.' Second Reply Mot. Suppress T. III Intercepts at 2; Gov't's Fourth Opp'n T. III Intercepts 4-5. As noted, the government reports that approximately 170 AMR files were intercepted, 163 of which were minimized and seven of which were “erroneously marked pertinent.” Gov't's Second Opp'n T. III Intercepts at 4. The monitors were instructed “not to open or listen to an AMR files because they did not have authorization to intercept wire communications.” Id. According to the government, the seven AMR files marked pertinent “were all received within the same [monitoring] session by the same monitor.” Id. at 5. “Based upon discussions with law enforcement agents, the monitor who marked the seven (7) AMR files as pertinent did not listen to the audio contained within them.” Id. at 4-5. This was confirmed by a “firewall agent, ” who “reviewed the transcripts and summaries of the electronic communications that contained the AMR files in order to determine if the AMR files were transcribed or summarized.” Id. at 5. Thus, the AMR files appear to have been “marked pertinent due to human error by a monitor, and otherwise handled in the same manner as other communications marked non-pertinent and minimized.” Id. Consequently, “[t]he Government has not listened to these files and has not relied upon them in any way during its investigation.” Id.

         The statutory requirement that government surveillance of communications “minimize the interception of communications not otherwise subject to interception under this chapter, ” 18 U.S.C. § 2518(5), does not create an “inflexible rule of law.” Scott v. United States, 436 U.S. 128, 139 (1978). Rather the requirement demands an evaluation of the “facts and circumstances of each case.” Id. at 140. In this case, the government took reasonable efforts, given the technical obstacles to avoiding collection of AMR files during court-authorized interception of electronic communications, to minimize the wire communications. Indeed, the only alternative suggested by the defendants is for the government to have sought and obtained additional authority to expand the surveillance to encompass all wire communications, see Defs.' Second Reply Mot. Suppress T. III Intercepts at 3, which is no solution at all to the minimization challenge.

         The proper remedy here is to suppress only those seven AMR files erroneously marked pertinent, similar to situations in which partial suppression is ordered when the government has failed to minimize certain intercepted communications properly. Gov't's Fourth Opp'n T. III Intercepts at 5 (citing Suggs, 531 F.Supp.2d at 24). In Suggs, the court explained that “[t]otal suppression ‘is not appropriate unless the moving party shows that there was a taint upon the investigation as a whole sufficient to warrant sweeping relief . . . and is reserved for the particularly horrendous case . . . where the government has made effectively no effort towards minimization whatsoever.” 531 F.Supp.2d at 24 (internal quotation marks and citations omitted). Suppressing all the BBM interceptions in this case due to the interception of AMR files would not be appropriate where, as here, the AMR files were transmitted with, and inseparable from, the lawfully intercepted electronic communications and were effectively minimized.

         Accordingly, the defendants' motion to suppress the entire Title III intercept is DENIED and only the seven AMR files erroneously marked pertinent must be suppressed.[16]

         B. Defendants' Motion to Compel Discovery

         Both defendants have moved, pursuant to Federal Rule of Criminal Procedure 16, to compel discovery of material related to the Title III wiretaps. See generally Agustin's Discovery Mot.; Panfilo's Discovery Mot.; Panfilo's Am. Discovery Mot. Specifically, the defendants seek to compel the government's production of two groups of intercepted communications: (1) “[m]inimized interceptions of Defendant Panfilo” (“Panfilo's minimized intercepts”); and (2) “[a]ll interceptions from the Title III investigation, from all target devices, including pertinent and minimized communications, ” and including intercepts between alleged co-conspirators (“co-conspirator intercepts”). Jt. Stm. Discovery ¶ 7; see also Panfilo's Reply Gov't's Opp'n Defs.' Mots. Compel (“Panfilo's Reply Discovery Mot.”) at 3, ECF No. 58. The government has already produced to the defendants the intercepts from the BlackBerry devices used by Panfilo and the underlying applications and orders for those intercepts, as well as the “applications, affidavits, and orders related to the ...


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