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United States v. Brasher

United States District Court, S.D. Indiana, New Albany Division

April 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRANCE BRASHER, Defendant.

          ENTRY DENYING MOTION TO MODIFY PROTECTIVE ORDER

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on Defendant Terrance Brasher's (“Brasher”) Motion to Modify Protective Order (Filing No. 789). For reasons explained in this Entry, the Motion is denied.

         I. BACKGROUND

         While conducting investigations of drug trafficking activities in the area of New Albany, Indiana and Louisville, Kentucky, in April, May, and June 2015, the FBI learned of a criminal drug enterprise involving numerous individuals. The investigation of the enterprise, referred to as the “Shelton Drug Trafficking Organization, ” included among other things, the use of confidential informants and controlled drug purchases. In order to advance the investigation of the criminal enterprise's scope, purpose, and participants, the FBI applied for and was granted the issuance of Title III wiretap orders authorizing the interception of wire, oral, and electronic communications.

         On December 15, 2015, a seven-count Indictment was filed naming Brasher as Defendant No. 7 in this drug conspiracy case, along with fourteen other defendants. (Filing No. 75.) Brasher was charged in Count 1, which alleges he and the co-defendants conspired to possess with the intent to distribute, and distributed 500 grams or more of methamphetamine (mixture), and one kilogram or more of heroin between April 20 and December 10, 2015, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

         On January 4, 2016, the Government, under seal, filed several motions for partial unsealing of applications, affidavits and compact discs containing recorded intercepts and a request for protective order. On January 11, 2016, the Court issued four sealed Orders partially unsealing the Orders themselves, plus associated wiretap materials, for discovery purposes, with respect to three different Target Phones.[1] Thereafter, CDs containing all wiretap recordings, line sheets, applications, and various orders, including copies of all intercepted calls and text messages over Target Phones belonging to co-defendants Carlos Shelton and Terry Martin, were provided to Brasher's then counsel, Brian Darling, who signed a discovery receipt. (Filing No. 795 at 2-3.)

         On February 5, 2016, the Court granted the Government's motion to partially unseal the applications, affidavits, warrants, and wiretap orders, for the purpose of allowing the Government to disclose the wiretap documents to all defense counsel and the individual defendants in the Indictment and any superseding indictment. (Filing No. 264 at 2.) The Court also granted a protective order that specifically states as follows:

Defense counsel are ORDERED to keep the documents in their care, custody and control and specifically ORDERED not to photocopy, in part or in whole, for purposes of providing them to any other individual or entity, including the defendants. Custody of the documents is not to be transferred from defense counsel and/or defense counsel agents. While each defendant may review the documents, such review must occur within the care, custody and control of defense counsel and/or defense counsel agents.

Id. On May 17, 2017, Brasher was charged in a single count Superseding Indictment along with Carlos Shelton, Joseph Tucker, and Brandy Gum, with conspiracy to possess with intent to distribute 500 grams or more of methamphetamine, one kilogram or more of heroin, and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Filing No. 539.) Ultimately, all other defendants in the case entered pleas of guilty and Brasher was the sole defendant that proceeded to trial. A jury trial commenced on January 22, 2018 and on January 25, 2018, the jury reached a verdict of guilty. Co-defendants Carlos Shelton and Terry Martin testified against Brasher during his trial. Sentencing is scheduled for April 20, 2018. Brasher believes the Government intends to have Shelton and Martin testify at his sentencing hearing and anticipates the Government will offer the content of conversations contained in recorded texts and telephone calls. (SeeFiling No. 789 at 2.)

         On March 3, 2018, Brasher filed a Motion to Modify the Protective Order imposed in this case. In broad terms, the Motion asks the Court “to allow the Defendant to obtain and possess printed copies of the phone conservations and texts obtained by the government with a Title III wiretap.” (Filing No. 789 at 1.) The Government opposes the Motion and argues that good cause has not been shown to warrant any modification of the Protective Order.

         II. LEGAL STANDARD

         Wiretaps, whether made by state or federal authorities, are controlled by Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”). Congress enacted a comprehensive scheme for the regulation of wiretapping and electronic surveillance. See United States v. United States District Court, 407 U.S. 297, 301-306 (1972). Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions. 18 U.S.C. §§ 2516, 2518(1)-(8). Applications made and orders granted under this chapter shall be sealed by the judge. Id. If a wire or oral communication is intercepted in accordance with the provisions of Title III, the contents of the communication may be disclosed and used under certain circumstances. 18 U.S.C. § 2517.

         Title III's statutory scheme imposes significant constraints on disclosure and use of electronic surveillance information. 18 U.S.C. §§ 2510-2520. Under § 2518(8)(a), recordings of intercepted conversations are to be sealed and “the purpose of this provision is to insure [sic] the integrity of the tapes following the interception.” McMillan v. United States, 558 F.2d 877, 878 (8th Cir. 1977). Applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years. 18 U.S.C. § 2518(8)(b).

         Title 18 U.S.C. § 2518(9), allows wiretap materials to be disclosed in the court for discovery purposes, by virtue of a partial lifting of the seal, however, such materials nevertheless remain under seal pursuant to 18 U.S.C. § 2518(8)(b). The privacy interests of persons, including third parties, requires that courts zealously safeguard disclosure of such materials and severely limit the conditions under which such materials may be disclosed. 18 U.S.C. § 2518(8)(b) (permitting disclosure only “upon a showing of good cause before a judge of competent jurisdiction”); see, e.g., In re Applications of Kansas City Star, 666 F.2d 1168, 1175-76 (8th Cir. 1981) (observing that the district court order which barred defendant and his attorneys from disclosing wiretap materials was “highly appropriate considering ...


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