USA v. Pawlowski et al

MOTION to Admit Recordings and Transcripts

E.D. Pa.December 7, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : v. : CRIMINAL NO. 17-390 EDWIN PAWLOWSKI : JAMES HICKEY SCOTT ALLINSON : O R D E R AND NOW, this day of , 2017, pursuant to Local Rule of Criminal Procedure 41.1(c), the Court finds the following as to the audio and video recordings and accompanying transcripts: 1. The recording devices used were capable of accurately recording the conversations; 2. The operator of the recording device was competent; 3. The recordings are authentic and correct; 4. There have been no changes in, additions to, or deletions from the recordings; 5. The recordings have been properly preserved; 6. The speakers on the recordings are properly identified; 7. The consenting party to the recording freely and voluntarily consented to the recording of the conversations; or the recordings were intercepted pursuant to court order, and 8. The transcripts of the recordings accurately represent the conversations on the recordings and accurately identify the speakers and parties to the recorded conversations. Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 1 of 13 The Court further finds that the Government may introduce as evidence copies of the original recordings, which are identical to the original recordings in all material ways. BY THE COURT: HONORABLE JUAN R. SANCHEZ Judge, United States District Court Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 2 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : v. : CRIMINAL NO. 17-390 EDWIN PAWLOWSKI : JAMES HICKEY SCOTT ALLINSON : GOVERNMENT'S MOTION TO ADMIT AUDIO AND VIDEO RECORDINGS The United States of America, by its attorneys, Louis D. Lappen, United States Attorney for the Eastern District of Pennsylvania, and Anthony J. Wzorek and Michelle L. Morgan, Assistant United States Attorneys, hereby moves for the admission of audio and video recordings at the trial of the above-captioned matter and in support thereof avers: 1. On July 25, 2017, a federal grand jury returned an indictment charging: a. Edwin Pawlowski with conspiracy to commit mail fraud, wire fraud, honest services fraud, federal program bribery, and Travel Act bribery, in violation of 18 U.S.C.§371 (Count One); fourteen counts of federal program bribery, in violation of 18 U.S.C. §666(a)(1)(b) (Counts 2, 4-11, 13, and 15-18); three counts of Hobbs Act extortion, in violation of 18 U.S.C. §1951 (Counts 3, 12, and 14); nine counts of mail fraud, in violation of 18 U.S.C. §1341 (Counts 20-28); nine counts of wire fraud, in violation of 18 U.S.C. §1343 (Counts 29-37); six counts of honest services wire fraud, in violation of 18 U.S.C. §§1343, 1346 (Counts 38-43); two counts of honest services mail fraud, in violation of 18 U.S.C. §§1341, 1346 (Counts 44-45); three counts of Travel Act bribery, in violation of 18 U.S.C. §1952 (Counts 46-48); and seven counts of material false statements to the FBI, in violation of 18 U.S.C. §1001 (Counts 49-55). Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 3 of 13 b. James Hickey with conspiracy to commit mail fraud, wire fraud, and honest services fraud, in violation of 18 U.S.C. §371 (Count One); two counts of mail fraud, in violation of 18 U.S.C. §1341 (Counts 27 and 28); four counts of wire fraud, in violation of 18 U.S.C. §1343 (Counts 34 through 37); four counts of honest services wire fraud, in violation of 18 U.S.C. §§1343, 1346 (Counts 40 through 43); and two counts of honest services mail fraud, in violation of 18 U.S.C. §§1341, 1346 (Counts 44 and 45). c. Scott Allinson with conspiracy to commit federal program bribery, in violation of 18 U.S.C.§ 371 (Count One); and attempted federal program bribery-offering, in violation of 18 U.S.C.§ 666(a)(2) (Count 19). 2. At trial in this matter, the government intends to offer into evidence: a. audio recordings of telephone conversations of the above defendants, captured during court-authorized Title III wiretaps from approximately November 2014 to June 2014. b. audio and video recordings of consensual telephone conversations and meetings between the defendants and cooperating government witnesses, made from approximately June 2014 to July 2015. 3. At the time the audio recordings are played aloud, the Government will move to distribute transcripts of the conversations to the jury, which can be admitted as an aid to the jury to be used at the time the recordings are played in court. 4. The government has provided copies of all audio and video recordings in its possession in discovery, has provided draft transcripts of the recordings, and is providing finalized transcripts of the recordings it intends to use at trial. Attached at Exhibit “A” is a listing of the audio and video recordings that the government may present at trial. The government Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 4 of 13 reserves the right to provide additional recordings and transcripts closer in time to trial if necessary and/or to play recordings at trial without transcripts. 5. As to the audio recordings of the conversations, referred to above, the government avers: (a) The recording device used was capable of accurately recording the conversations; (b) The operator of the recording device was competent; (c) The audio recordings are authentic and correct; (d) There have been no changes in, additions to, or deletions from the portion of the recordings being offered into evidence; (e) The tape recordings have been properly preserved; (f) The speakers on the tape recordings are properly identified; (g) The consenting party to the recording freely and voluntarily consented to the recording of the conversations; or the recordings were intercepted pursuant to court order; and (h) The transcripts of the audio recordings accurately represent the conversations on the recordings and accurately identify the speakers and parties to the recorded conversations. Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 5 of 13 WHEREFORE, the government respectfully requests that this Court issue the order attached to this motion. Respectfully submitted, LOUIS D. LAPPEN United States Attorney /s/ Anthony J. Wzorek ANTHONY J. WZOREK MICHELLE L. MORGAN Assistant United States Attorneys Dated: December 7, 2017 Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 6 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : v. : CRIMINAL NO. 17-390 EDWIN PAWLOWSKI : JAMES HICKEY SCOTT ALLINSON : GOVERNMENT=S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO ADMIT RECORDINGS AND TRANSCRIPTS The United States of America, by its attorneys, Louis D. Lappen, United States Attorney for the Eastern District of Pennsylvania, and Anthony J. Wzorek and Michelle L. Morgan, Assistant United States Attorneys for the District, submits the following memorandum in support of its motion to admit recordings and corresponding transcripts. The government seeks to introduce wiretap recordings made pursuant to 18 U.S.C. ' 2518 et seq, and consensual audio and/or video recordings of conversations between the defendants and cooperating witnesses pursuant to 18 U.S.C. ' 2511(2)(c), which states that it is lawful for a person acting under color of law to intercept a wire or oral communication when one of the parties to the communication has given prior consent. I. BACKGROUND On November 25, 2013, pursuant to an application by the United States Attorney’s Office, the United States District Court for the Eastern District of Pennsylvania issued an order, under Misc. No. 13-2009-1, authorizing the interception of wire as well as electronic communications over (484) 866-7437, Subject Telephone #1, for a period of 30 days. Interceptions pursuant to this order began on November 26, 2013, at approximately 9:00 a.m. Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 7 of 13 and stopped on December 16, 2013, at approximately 11:00 a.m. During interception of Subject Telephone #1, the subject interceptee stopped using Subject Telephone #1 and began using telephone number (610) 613-2076, Subject Telephone #2. On Friday, December 13, 2013, the Court issued an order, under Misc. No. 13- 2009-2, authorizing the interception of wire and electronic communications over Subject Telephone #2 for 30 days. The interception of wire and electronic communications over Subject Telephone #2 began on December 14, 2013, at approximately 1:50 p.m., and stopped on January 12, 2014, at approximately 9:00 p.m. Interception of wire communications over Subject Telephone #2 resumed, pursuant to the Court’s order of January 16, 2014. The January 16 order expired on Friday, February 14, 2014, at 11:59 p.m. Interception of wire communications over Subject Telephone #2 resumed, pursuant to the Court’s order of February 24, 2014. The February 24 order expired on Wednesday, March 25, 2014, at 11:59 p.m. Interception of wire communications over Subject Telephone #2 resumed on March 31, 2014, pursuant to the Court’s order of March 31, 2014. The March 31 Order expired on Tuesday, April 29, 2014. Pursuant to the Court’s order of May 1, 2014, interception of wire and electronic communications over Subject Telephone #2 resumed on May 1, 2014, and ended on May 30, 2014. Following the Court’s order of June 3, 2014, interception of wire and electronic communications over Subject Telephone #2 resumed on June 3, 2014, and ended on July 3, 2014. Pursuant to the Court’s order of August 18, 2014, interception of wire and electronic communications over Subject Telephone #2 resumed on August 19, 2014, and ended on September 17, 2014, at approximately 11:59 p.m. On April 1, 2014, pursuant to an application by the United States Attorney’s Office, the Court issued an order, under Misc. No. 2009-3, authorizing the interception of wire Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 8 of 13 and electronic communications occurring to and from (484) 219-7835, Subject Telephone #3, for a period of thirty days. Interceptions pursuant to that order began the same day at approximately 9:45 a.m. and stopped on April 30, 2014, at approximately 11:15 p.m. Pursuant to the Court’s order of May 1, 2014, interceptions over subject telephone #3 resumed on May 2, 2014, at approximately 12:38 p.m. Interception of electronic and wire communications over subject telephone #3 stopped on May 31, 2014, at approximately 6:38 pm. Pursuant to the Court’s order of June 3, 2014, interceptions over subject telephone #3 were authorized. Interceptions resumed on June 4, 2014, at approximately 3:35 p.m.. The last call intercepted pursuant to this order on Subject Telephone #3 was on June 16, 2014 at approximately 5:30 p.m. Consensual recordings began approximately in June 2014 and continued until July 2015. The recordings of all of the calls have been produced in discovery. Pursuant to 18 U.S.C. ' 2518(9), copies of the authorization applications and orders have been provided to all counsel. At the trial of this matter, the government will seek to admit in evidence and to play for the jury certain intercepted conversations and to use transcripts of the conversations as aids to the jury. The government has complied with all requirements of 18 U.S.C. ' 2518 et seq., and there is no basis to suppress the intercepted wire and electronic communications. Additionally, during the course of the investigation, numerous consensual audio and video recordings were made of conversations and/or meetings between the defendants and others. Copies of these recordings have been produced in discovery and finalized transcripts of these recordings are being produced to all defense counsel. A list of the intercepted conversations and the audio and video recordings that the government may use at trial is attached hereto at Exhibit “A.” The government reserves the right Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 9 of 13 to provide additional recordings closer in time to trial if necessary and/or to play recordings at trial without transcripts. II. DISCUSSION In presenting this motion, we observe the decision in United States v. Starks, 515 F.2d 112 (3d Cir. 1975), which held “that the burden is on the government ‘to produce clear and convincing evidence of authenticity and accuracy as a foundation for the admission of such recordings,’” id. at 121 (quoting United States v. Knohl, 379 F.2d 427, 440 (2d Cir. 1967), cert. denied, 389 U.S. 973 (1967)), and that the following factors are generally relevant considerations: (1) That the recording device was capable of accurately recording the conversations now offered in evidence. (2) That the operator of the device was competent to operate the device. (3) That the recordings are authentic and correct. (4) That changes, additions or deletions have not been made in the recordings. (5) That the recordings have been preserved in an appropriate manner. (6) That the speakers are identified. (7) That the conversations elicited were made voluntarily and in good faith, without any kind of inducement. Starks, 515 F.2d at 121 n.11. However, the ruling in Starks, both as to burden and content of proof, was substantially undermined by the later adoption of the Federal Rules of Evidence. In particular, Rule 901 now sets forth the appropriate test for a showing of authenticity of evidence, in order to allow the jury to consider that evidence. The Federal Rules of Evidence provide that A[t]he Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 10 of 13 requirement of authenticationYis satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.@ Fed. R. Evid. 901(a). Thus, to the extent that Starks required Aclear and convincing evidence,@ it is no longer good law with respect to the preliminary finding to be made by the trial court. The Third Circuit has held that A[t]he burden of proof for authentication is slight.@ McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985). The rule does not Arequire anything more than a prima facie showing that the evidence is what its proponent claims it to be.@ In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 285 (3d Cir. 1983), rev’d on other grounds, 475 U.S. 574 (1986). AAll that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what its proponent claims it to be.@ Id. After this preliminary determination, the final assessment of authenticity is left to the jury. Id. Moreover, to the extent that Starks suggests a particular formulation must be followed to establish authenticity of tape recordings, it is not valid. Authentication issues are determined under Rule 104(b), as the Advisory Committee Notes to Rule 901 make clear. Authentication issues under Rule 901 do not present the nettlesome and grave policy concerns that generate rules of categorical inadmissibility, as do hearsay, privileges, and confessions. Rather, Aonce the court finds that evidence has been introduced sufficient to permit a reasonable juror to find that the matter in question is what its proponent claims, a sufficient foundation for introduction in evidence has been laidY@ United States v. Reilly, 33 F.3d 1396, 1404-05 (3d Cir. 1994) (internal quotations and citation omitted); United States v. Almonte, 956 F.2d 27, 29-30 (2d Cir. 1992) (per Advisory Committee Notes to Rule 901(a), authentication issues are dealt Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 11 of 13 with under Rule 104(b)).1 Thus, the Starks rule imposed a higher burden for admission of recordings than currently applies for admission of any other type of evidence. III. CONCLUSION As set forth above and in the accompanying motion, the government has met all of the factors outlined in Starks to introduce at trial the wire and electronic communications intercepted pursuant to the Court order and the consensually made recordings of conversations and meetings with the defendants. Accordingly, the government=s audio and video recordings of relevant conversations should be held admissible at trial. Respectfully submitted, LOUIS D. LAPPEN United States Attorney /s/ Anthony J. Wzorek ANTHONY J. WZOREK MICHELLE L. MORGAN Assistant United States Attorneys Dated: December 7, 2017 1The rules of evidence (except as to privileges) do not apply in the determination of preliminary questions under Rule 104(a). Rule 104(a); Bourjaily v. United States, 483 U.S. 171, 178 (1987) (hearsay may be considered in determination of whether co-conspirator statement was admissible under Rule 801(d)(2)(E)); Brosius v. Warden, U.S. Penitentiary, Lewisburg, 278 F.3d 239, 246 (3d Cir. 2002) (hearsay may be considered in determination of voluntariness of confession at suppression hearing); In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 287-288 (3d Cir. 1983) (court, not jury, makes preliminary determinations about admissibility under business records hearsay exception; hearsay may be used at preliminary hearing), rev=d on other grounds, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 577 (1986). Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 12 of 13 CERTIFICATE OF SERVICE I certify that a copy of the Proposed Order, Government's Motion to Admit Audio and Video Recordings, and Memorandum of Law was served by electronic filing upon: William J. Winning, wwinning@cozen.com Counsel for Scott Allinson Megan S. Scheib, Esq. mscheib@cozen.com Counsel for Scott Allinson Jack J. McMahon, Jr., Esquire mcmahonlaw@hotmail.com Counsel for Edwin Pawlowski James M. Polyak, Esq. jmpolyak@polyaklawoffice.com Counsel for James Hickey Robert Goldman, Esq. reg@bobgoldmanlaw.com Counsel for James Hickey /s/ Anthony J. Wzorek ANTHONY J. WZOREK MICHELLE L. MORGAN Assistant United States Attorneys Date: December 7, 2017 Case 5:17-cr-00390-JS Document 49 Filed 12/07/17 Page 13 of 13