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Government Response to Defense's Motion for a Continuance

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					  Case: 1:08-cr-00888 Document #: 699 Filed: 05/13/11 Page 1 of 10 PageID #:5605



                    UNITED STATES DISTRICT COURT
                    NORTHERN DISTRICT OF ILLINOIS
                         EASTERN DIVISION

 UNITED STATES OF AMERICA,               )
                                         ) No. 08 CR 888
              v.                         ) Hon. James. B. Zagel
                                         )
 ROD BLAGOJEVICH, et al.                 )

             GOVERNMENT'S SUR-REPLY IN OPPOSITION TO
                   MOTION FOR A CONTINUANCE

      The United States of America, by and through PATRICK J. FITZGERALD,

United States Attorney for the Northern District of Illinois, respectfully submits

the following sur-reply in opposition to defendant’s most recent motion for a

continuance, filed on March 25, 2011, in order to respond to two new arguments

raised in the defendant’s reply in support of his motion for a continuance

(“Reply”).

                           DEFENDANT’S REPLY

      In his Reply, R. 652, defendant argues that he is entitled to a continuance,

as well as to relief from his previous waivers, due to the government’s failure to

produce in pretrial discovery copies of Special Reports submitted to the Chief

Judge during the interception period.        Specifically, he argues that the

government had a duty to produce the reports, and that the information

contained in the reports casts “a whole new light” on the wiretaps and

defendant’s earlier decision to waive any privilege applicable to communications
  Case: 1:08-cr-00888 Document #: 699 Filed: 05/13/11 Page 2 of 10 PageID #:5606



involving William Quinlan, and his right to seek suppression of the wiretap

evidence. As demonstrated below, the government was under no obligation to

produce the Special Reports in discovery and, in any event, nothing in those

reports provides a basis for suppression, or a basis for granting a continuance.

                                 DISCUSSION

      Contrary to defendant’s contention, the government had no duty to

disclose in pretrial discovery Special Reports filed with the Chief Judge by the

filter team. As an initial matter, 18 U.S.C. § 3518 does not require disclosure of

such reports.    Whereas Sections 2518(8) and (9) specifically provide for

disclosure of wiretap applications and orders, § 2518(6) contains no discussion

regarding “disclosure of progress reports.” See United States v. Orozco, 108

F.R.D. 313, 316 (S.D. Cal. 1985). As explained by one district court, Section

2518(7)(d)

      authorize[s] the judge to provide to an aggrieved person who has
      filed a motion copies of portions of intercepted conversations,
      applications, and orders. Significantly, progress reports, as provided
      for in § 2518(6) are not included. Given that such reports are for the
      benefit of the issuing judge in monitoring compliance with the order,
      it follows, by negative implication, that such reports were not
      intended by Congress to be disclosed.

United States v. Chimera, 201 F.R.D. 72, 77-78 (W.D.N.Y. 2001) (internal

citations omitted). Thus, nothing in the relevant statute suggests that reports

filed with the judge supervising a wiretap are discoverable.


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      Moreover, as demonstrated in the government’s response to defendant’s

motion for a continuance, R. 648 at 7, the critical facts relevant to a motion to

suppress intercepted communications are found in the recordings themselves,

rather than in reports made to the supervising judge, and thus a potential

motion to suppress does not depend on such reports. The bulk of defendant’s

pending motion to suppress, R. 617, is devoted to arguing that the government

over-minimized communications involving Quinlan. Defendant cites, and a

review of the Special Reports reveals, no information relevant to defendant’s

over-minimization claim, however.

      Nor do the Special Reports provide support for any claim based on the

improper minimization of privileged communications (i.e, “under-minimization”).

To the contrary, the recordings themselves, rather than the reports, establish

the   degree   to   which   intercepted       communications,   and   portions    of

communications, involving Quinlan were minimized (and not minimized).

Defendant was and is fully capable of arguing that certain communications were

not, but should have been, minimized without access to the Special Reports.

Special Reports are “[p]repared as a summary of information to assist the court

in judging compliance with its authorization order,” and thus provide the

defendant with no “original information beyond what can be found in the tapes,

transcripts, and monitor log sheets.” United States v. Wright, 121 F. Supp. 2d


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1344, 1350 (D. Kan. 2000). See also United States v. McCafferty, 2011 WL

666718, at *11 (N.D. Ohio 2011) (reports are “merely summaries” and contain

“no original information”); United States v. Pray, 734 F. Supp. 2d 158, 160

(D.D.C. 2010) (reports to the Chief Judge are “summaries of evidence and not the

evidence itself”); Orozco, 108 F.R.D. at 316 (S.D. Cal. 1985) (“Progress reports

are, for the most part, a summary of information already provided to defendants,

i.e. the tapes, summaries and logs. Those items already provided to defendants

are the original and best sources of information regarding statutory

compliance.”)

      Thus where, as here, the defendant has been provided with the wiretap

applications and orders, and the recordings of all the intercepted

communications—“the best source of information within which to evaluate the

government’s compliance with the statute”—he is not also entitled to production

of the reports. McCafferty, 2011 WL 666718, at *11. See also Pray, 734 F. Supp.

2d at 160 (Where defendants have been given access to the tapes of the phone

calls, the wiretap application, and the orders relating to the wiretap application,

access to the periodic reports is not necessary.”); United States v. Meraz, 2007

WL 2257605, at *2 (E.D. Wis. 2007) (“the defendant has the wiretap orders and

access to the tapes of the monitored conversations . . . defendant . . . has not

established a basis for disclosure of the ten-day progress reports.”); Orozco, 108


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F.R.D. at 316 (“courts generally do not require discovery of summary reports and

other secondary material unless verbatim recordings are unavailable”) (citing

James G. Carr, The Law of Electronic Surveillance 425 (1977)); Wright, 121 F.

Supp. 2d at 1350 (dismissing claim that progress reports might contain Brady,

Jencks or Rule 16 material, and holding that such reports are not required to be

disclosed in their original form); Chimera, 201 F.R.D. at 78 (holding that because

the “reports are prepared by prosecutors or agents assigned to the investigation,

they . . . fall within the law enforcement exception to discovery as provided in

Fed. R. Crim. P. 16(a)(2).”)

      To the extent that defendant challenges disclosures of privileged

communications to members of the prosecution team, it is clear that the Special

Reports reflect no pattern of improper disclosures. To the contrary, the reports

show that the government took a conservative view of potential privilege, took

substantial steps to protect from interception and disclosure communications

that were potentially privileged, and kept the Chief Judge advised of their

efforts.

      Here defendant was provided with copies of the Special Reports prepared

by the filter team to refute the speculative (and erroneous) suggestion, first

made in defendant’s motion to suppress, that members of the prosecution and

investigation teams routinely obtained access to potentially privileged


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communications during the interception period.




                            the law is clear that isolated failures to minimize

provide no basis for suppression. United States v. Fisher, 2009 WL 750246 (E.D.

Wis. 2009) (a single failure to minimize a call that should have been minimized

is not “indicative of any systemic failure to minimize.”); United States v.

Dorfman, 542 F. Supp. 345, 391 (N.D. Ill. 1982) (only where the defendant

establishes a pattern of interception of innocent conversations developed over

the course of the wiretap is exclusion of particular calls warranted).

      The fact that the Special Reports contain no information that would

support a potential motion for suppression or continuance is well illustrated by

the two incidents highlighted in defendant’s Reply. Neither of these incidents

provides any support for the conclusion that the government was duty-bound to


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produce the Special Reports in discovery, or that defendant was prejudiced by

his failure to receive the reports at an earlier time.




                                                                            Thus,

in sum, information regarding this incident in no way casts new light on the

wiretaps or otherwise supports defendant’s claims.


      1



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                                                                 Thus, if anything,

evidence concerning this incident, like the first, refutes, rather than supports,

defendant’s claims. Neither these two incidents, nor anything else reported in

the Special Reports even remotely suggests that, had the reports been disclosed

earlier, defendant would have pursued a different strategy prior to the first trial,

much less that he is now or ever was entitled to suppression of the wiretap

evidence. For the same reasons, neither the reports themselves nor the timing

of their disclosure provide any basis for granting a continuance.

                                 CONCLUSION

      For all of the foregoing reasons, the government respectfully requests that

this Court deny defendant’s motion.

                                      Respectfully submitted,

                                      PATRICK J. FITZGERALD
                                      United States Attorney


                                BY:    /s/ Debra Riggs Bonamici
                                      REID SCHAR
                                      CHRISTOPHER NIEWOEHNER
                                      CARRIE HAMILTON
                                      DEBRA RIGGS BONAMICI
                                      Assistant United States Attorneys
                                      United States Attorney's Office
                                      219 S. Dearborn St., 3rd Floor
                                      Chicago, Illinois 60604


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                       CERTIFICATE OF SERVICE

      The undersigned Assistant United States Attorney hereby certifies that

the following document:


          GOVERNMENT'S RESPONSE IN OPPOSITION TO
                MOTION FOR CONTINUANCE

was served on April 7, 2011, in accordance with FED. R. CRIM. P. 49, FED. R.

CIV. P. 5, LR 5.5, and the General Order on Electronic Case Filing (ECF)

pursuant to the district court’s system as to ECF filers.

                                     Respectfully submitted,
                                     PATRICK J. FITZGERALD
                                     United States Attorney

                               BY:    /s/ Debra Riggs Bonamici
                                     DEBRA RIGGS BONAMICI
                                     Assistant United States Attorneys
                                     United States Attorney’s Office
                                     219 S. Dearborn St., 3rd Floor
                                     Chicago, Illinois 60604
                                     (312) 353-3741

				
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