US Motion Preclude Defense Arguements

8/12/2019 US Motion Preclude Defense Arguements

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, )

)Plaintiff, )

)vs. ) Criminal No. 13-1877 WJ

)JAMIE ESTRADA, )

)Defendant. )

UNITED STATES MOTIONS IN LIMINE TO PRECLUDEDEFENSE ARGUMENTS AND EVIDENCE SEEKING TO JUSTIFY

OR EXCUSE DEFENDANTS ACTIONS, TO RAISE COLLUSION THEORIES

ABOUT THE INDICTMENT, OR TO CLAIM DEFENDANT HAD

LAWFUL ACCESS OR PRIOR CONSENT TO INTERCEPT EMAILS

As this Court has already made unmistakably clear, this case is about whether the

Defendant is guilty or not guilty of the crimes charged in the Superseding Indictment; nothing

more, nothing less. Doc. 46 at 2. With that admonition, and pursuant to Federal Rules of

Evidence 401, 402 and 403, the United States therefore moves this Court to exclude altogether

from trial several categories of defense argument and evidence. First, the United States seeks

this Court to exclude any defense references in voir dire, and any questions, arguments and

evidence at trial, premised upon on any alleged justification or excuses for Defendants actions

in intercepting emails for which he has been charged under 18 U.S.C. 2511(1)(a) of the

Wiretap Act, 18 U.S.C. 2510, et seq., or in making false statements to the FBI under 18 U.S.C.

1001(a)(2). Justification or excuse is not a legally cognizable defense to any of the crimes with

which Defendant stands charged. Second, the United States seeks this Court to exclude any

references in voir dire, and any questions, arguments and evidence at trial, that would have the

effect of infusing politics into the upcoming trial, or of engendering sympathy for Defendant, or

Case 1:13-cr-01877-WJ Document 62 Filed 05/29/14 Page 1 of 22


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antipathy toward any person who is associated with the emails Defendant is charged with

illegally intercepting. Third, the United States seeks to exclude any of Defendants argument or

intimations during trial that the charges against him are the product of any sort of conspiracy or

collusion between Governor Susana Martinez and the Department of Justice, or that the charges

represent some type of vindictiveness or retaliation against Defendant. Fourth, Defendant lacks

any colorable claim that he had any valid, prior consent within the meaning of 18 U.S.C.

2511(1)(d) to intercept the emails with which he is charged under the Wiretap Act. Thus, the

United States also moves this Court to exclude any references in voir dire, and any questions,

arguments and evidence at trial, suggesting that Defendant had somehow acquired lawfulaccess to the intercepted emails, see, e.g.,Doc. 36 at 11, or that he had somehow acquired

implied consent to access the emails. As addressed below, such imperfect consent arguments

can only be premised upon a misleading and distorted view of 2511(1)(d)s narrow prior

consent exception to the Wiretap Act.

From the outset of this case, Defendant has made quite clear that his strategy at trial will

be to try to vilify the victims of his crimes, and instead of himself, to put them on trial, including

his main target in this regard, Governor Martinez. For example, as highlighted previously, in his

motion to compel discovery, Defendant sought to spin the charges in the indictment as really

being about the enormous political and personal consequences of the public exposure of certain

emails for some of the most powerful and influential people in our state, including Governor

Susana Martinez. Doc. 36 at 1. More recently, Defendant has even stated that the

inflammatory information that he desires to make a centerpiece of his defense at trial may

damage or even end Martinez political career, Doc. 44 at 3, thus revealing his real aim and



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purpose. But if Defendants goal is to try to settle old political scores, then he needs to take that

fight to the political arena, not to the jury.

Both Defendant and the United States are entitled to a fair trial that is focused on the

charges in the indictment. Thus, Defendant has a right to put the United States to its proof and to

try to challenge the sufficiency of the evidence against him. Defendant does not have a right to

make arguments or try to introduce evidence that is not germane to any legitimate defense to the

crimes charged, or that fails to make the existence of any fact that is of consequence in the case

more or less probable. Defendant can also find no refuge in the law in seeking to gain an

acquittal by the stratagem of trying to inflame, distract, or confuse the jury about his factual guiltor innocence.

FACTUAL BACKGROUND

As the United States has previously noted, the logical framework for evaluating the

relevancy of evidence should begin with the charges in the indictment and the elements of the

crimes that the United States bears the burden of proving at trial. To prove Defendant guilty of

the charges in Counts 1 through 12 of the Second Superseding Indictment, the United States will

need to prove that Defendant intentionally intercepted, or procured another person to intercept,

an electronic communication using an electronic, mechanical or other device. 18 U.S.C.

2511(1)(a) and 18 U.S.C. 2510(4). To prove Defendant guilty of Counts 13 through 16 of

the Second Superseding Indictment, the United States will need to show that Defendant willfully

made materially false or fictitious statements about matters within the jurisdiction of the FBI

when he spoke to FBI agents on September 19, 2012. 18 U.S.C. 1001(a)(2).

A brief overview of the indictment again illustrates how far removed Defendants

planned strategy is from a legitimate defense to the charges against him. The indictment sets



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forth how Susana Martinez began running for Governor in the summer of 2009, at which point

her campaign acquired an internet domain,Susana2010.com (the Domain), through

GoDaddy.com (GoDaddy). Doc. 55 at 1. Defendant became campaign manager in July 2009

and thereby gained access to the username and password for the Domain. Id. at 2. Defendant

left the campaign in December 2009. Id. When Defendant left the campaign in December 2009,

he was requested to cooperate with efforts to remove his access to and privileges regarding the

campaigns accounts. Id. at 3.1 Members of the Martinez campaign continued to use their

Domain email accounts to varying degrees until July 2011. Id. at 3. On July 19, 2011, the

Domain expired and emails sent from outside sources to email addresses at the Domain beganbouncing back as undeliverable. Id. An effort was made to try to renew the Domain with

GoDaddy, but no one working with the Governor at the time could recall the username or

password. Id. Members of the Martinez camp called and sent text messages to Defendant in

efforts to retrieve the username and password. Id. Defendant did not take the calls nor reply to

their messages, but instead posted a message on his Facebook page on July 20, 2011, that said

Beware the snakes in the grass who stab you in the back, and then call you out of thin air, all

because they apparently want something from you. Doc. 36-3 at 3. Meanwhile, on July 19,

2011, the Governors staff switched to a new domain, believing that the old Domain had expired

and was no longer being used. Doc. 36-3 at 2.

GoDaddy permits the registrant of a domain a 42-day grace period after expiration to

have an exclusive right of renewal. Doc. 55 at1-2. Unbeknownst to Martinezs camp, ten days

after the Domain expired, Defendant created a fictitious identity, Sylvia Tacori, and logged

1In an email that Defendant sent to Martinezs political advisor, Jay McCleskey, on December23, 2009, Defendant expressed his displeasure at his perception of the way he had been treated,warning: I cant understand how she wouldnt think there are political consequences for treatingme poorly or unfairly. Discovery at JM_0086.



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into the Domain account. Id. at 3. At trial, the United States will show that Defendant then

shifted ownership of the Domain to the fake name, renewed it, and diverted all incoming emails

addressed to any recipient at the Domain to Defendants own email hosting account (at Google,

managed via Google Apps). The United States will also show at trial that in July 2011,

Defendant had a motive for deciding to spy upon Martinez and her associates, because after

Martinez won the gubernatorial election in November 2010, she did not provide him with a job,

which made him bitter and led him to feel betrayed and humiliated.

For nearly a year, Defendant anonymously and silently collected all emails sent to anyone

at a Domain email address. Defendant never notified any sender that his or her email would notreach its intended recipient, and he never notified any named recipient that emails addressed to

him or her were arriving under Defendants control. In short, he unlawfully intercepted each and

every email sent to any address at the Domain after July 29, 2011, giving rise to the present

indictment.

Agents interviewed Defendant about their investigation on or about September 19, 2012.

During the interview, Defendant falsely denied ever logging onto the GoDaddy account for the

Domain. He also falsely stated that he was not aware of [email protected]

account, that he was unaware of the Domains expiration, and that he had not renewed the

Domain using a pre-paid gift card.

ARGUMENT

1. Defendant should not be allowed to argue or present evidence to try to justify or

excuse his conduct by suggesting that he acted for some legally irrelevant purpose

that he seeks to portray as commendable or sympathetic, or to suggest that the

indictment is part of some sort of a conspiracy against him.

Defendants desire to show the jury how the emails he intercepted allegedly exposed

corruption within Governor Martinezs administration, see, e.g., Doc. 36 at 2, obviously

mailto:[email protected]:[email protected]:[email protected]:[email protected]


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indicates how Defendants plan at trial is to try to portray himself as being a sort of

whistleblower who rendered a public service by secretly and illegally spying upon the

Martinez administrations email traffic. Defendants plan is also clearly aimed at seeking to

garner support from jurors who Defendant presumably hopes may prove sympathetic to any

political attacks upon Governor Martinez and her administration. As this Court is already aware,

for example, in his motion to compel discovery, Defendant drew heavily upon newspaper

accounts about rumors of alleged improprieties over the Martinez administrations awarding of a

contract to operate the racino at the Albuquerque Downs. Id. at 8. Defendant also argued that

despite the administrations purported commitment to transparency and open government, byintercepting their emails, Defendant exposed what was effectively a shadow government in

which members of the Martinez political machine discussed state business with private

individuals on private email accounts. Id. at 8-9. Defendant further contended that other

intercepted emails also exposed members of the Martinez administration gathering information

for political purposes while on the clock using private email, (citing an intercepted email in

which a Public Education Department official referenced making a list of teachers email

addresses that had been separated into a list of union and non-union members). Id. at 9. Finally,

Defendant has offered up his theory that Governor Martinez and her staff were behind the

Department of Justices decision to prosecute him so as to deflect attention from their own

scandals onto their chosen scapegoat, Estrada. Id. Just as the Wiretap Act contains no defense

of justifiable excuse, however, it also contains no Im just a chosen scapegoat exception to

criminal liability.

Hence, as the United States has previously observed, even assuming strictly for the sake

of argument that Defendants speculations and claims were somehow all true, none of the above



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information or theories would support in any way an inference that Defendant was thereby

innocent of the charges against him, or be germane to any legitimate defense he could raise. For

that reason, all such arguments or references should be excluded altogether from trial under Rule

402 because they are not relevant. To assure a fair trial, such political mudslinging and

unrestrained character attacks should further be excluded under Rule 403 as being unfairly

prejudicial, inflammatory, confusing, and distracting to any legitimate question about

Defendants guilt that the jury will have to decide.

This Court has already made it very plain that only evidence relevant to the charges

against Defendant may be admitted at trial. See also Fed. R. Evid. 402. To be relevant, evidencemust have a tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence. Fed. R. Evid. 401. Implicit in that definition are two distinct requirements: (1) The

evidence must be probative of the proposition it is offered to prove, and (2) the proposition to be

proved must be one that is of consequence to the determination of the action. United States v.

Waldrip, 981 F.2d 799, 806 (5th Cir. 1993) (citing United States v. Hall, 653 F.2d 1002, 1005

(5th Cir. 1981)). Whether a proposition is of consequence to the determination of the action is a

question that is governed by the substantive law under which a defendant has been charged.

Hall, 653 F.2d at 1005.

In 1986, Congress amended the Wiretap Act to make it a criminal act for a person to

intentionally intercept an electronic communication. As colorfully explained in the Senate

Report accompanying the amendment: [P]eople who steal because they like to or to get more

money or to feed the poor, like Robin Hood, all commit the same crime. The word intentional

describes the mental attitude associated with an act that is being done on purpose. SeeS. Rep.



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No. 99-541, at 24 (1986). The Second Circuit subsequently found that the Wiretap Act only

requires intentional interception of communications . . . . The question of whether the defendant

had a good . . . purpose in [intercepting the communications] is, therefore, irrelevant. All that is

relevant is that [the defendant] intentionally intercepted communications between two

unknowing and unconsenting individuals. United States v. Townsend, 987 F.2d 927, 931 (2d

Cir. 1993) (affirming exclusion of evidence that a defendant had recorded conversations for the

purpose of stopping his predecessor in office from harassing him). Even federal agents

investigating a crime are not thereby justified in engaging in unauthorized interceptions of wire

communications under the Wiretap Act. See Gelbard v. United States,408 U.S. 41, 50 (1972)(observing that [n]o one quarrels with the proposition that the unauthorized use of these

techniques by law enforcement agents should be prohibited, while further stating that:

Virtually all concede that the use of wiretapping or electronic surveillance techniques by private

unauthorized hands has little justification where communications are intercepted without the

consent of one of the participants. (citing S. Rep. No. 90-1097, at 66, 69 (1968))).

Here, despite the substance of the Wiretap Act described above, for all intents and

purposes, Defendant seeks to cast himself in the role of Robin Hood. Yet even if the law was the

opposite of what it is, and a Robin Hood defense was somehow sanctioned under the Wiretap

Act, Robin Hoods garb is an ill fit for Defendant. For example, Defendant has yet to advance

any persuasive, credible and praiseworthy public purpose as a justification for his choice to

commit crimes at the time he started to spy on the Martinez administration beginning on July 29,

2011. Indeed, even as Defendant has struggled to manufacture a theory of relevance that would

allow him to present his theory of wrongdoing regarding the racino contract, seeDocs. 36 and

44, he cannot credibly assert that he intercepted the emailsfor the specific purpose of exposing



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alleged wrongdoing at the racino.2 That Defendant seeks to raise after-the-fact rationalizations

for the decision he made in July 2011 to start intercepting other peoples emails only serves to

underscore how hollow and irrelevant Defendants anticipated claims of his pure motives really

are with respect to his various claims about exposing scandals and corruption.

But under whatever guise or rationale Defendant may seek to raise issues such as the

racino controversy, any evidence or argument about it should be excluded from his upcoming

trial. Defendant already has devoted the majority of a 27-page motion, seeDoc. 36, and a 14-

page reply, seeDoc. 44, trying, but failing, to articulate a convincing theory of relevance that

would justify admission of evidence related to extraneous issues surrounding the racino contract.It is clear that the racino controversy carries zero probative value with respect to any legitimate

defense to the charges in the Second Superseding Indictment.

Sympathy with a defendants political agenda or purpose is a legally irrelevant factor in

this case. No defendant is entitled to encourage a jury to acquit him based upon legally

irrelevant factors. Rather, such evidence or argument is improper and should be excluded. See,

e.g., United States v. Baptista-Rodriguez, 17 F. 3d 1354, 1363 (11th Cir. 1994) (If the court

determines that the defendants proffered evidence is irrelevant or otherwise inadmissible, it

should issue a ruling in limine precluding the introduction of that information at trial.); see also

Zal v. Steppe, 968 F. 2d 924, 930-31 (9th Cir. 1992) (Trott, J., concurring) (opining that a

defendant has no right to present evidence that is not relevant to a legal defense); United States v.

Bifield, 702 F. 2d 342, 350 (2d Cir. 1983) (A criminal defendants right to present a full defense

2The indictment does not charge Defendant with the additional crimes of his dissemination ofthe unlawfully intercepted communications under 18 U.S.C. 2511(1)(c), so anypost hocrationalizations Defendant may have about such dissemination carry even less relevance to thecrimes for which he will be tried.



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and to receive a fair trial does not entitle him to place before the jury evidence normally

inadmissible. (citation omitted)).

Indeed, legally baseless attempts to justify criminal conduct amount to the impermissible

encouragement of jury nullification, which is a forbidden trial tactic that has been repeatedly

disapproved by the Tenth Circuit and other courts. See United States v. Gonzales, 596 F.3d

1228, 1237 (10th Cir. 2010) ([W]e disapprove of the encouragement of jury nullification[.])

(citing United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983) (While we recognize that a

jury may render a verdict at odds with the evidence and the law, neither the court nor counsel

should encourage jurors to violate their oath.)); Crease v. McKune, 189 F.3d 1188, 1194 (10thCir. 1999) ([T]here is no right to jury nullification.) (citing United States v. Thomas, 116 F.3d

606, 615 (2d Cir. 1997) (We categorically reject the idea that, in a society committed to the rule

of law, jury nullification is desirable or that courts may permit it to occur when it is within their

authority to prevent.)); United States v. Rith, 164 F.3d 1323, 1338 (10th Cir. 1999) (To the

extent the defendants appeal seeks to require courts to facilitate jury nullification, the law is

clear, a criminal defendant is not entitled to have the jury instructed that it can, despite finding

the defendant guilty beyond a reasonable doubt, disregard the law.). Therefore, evidence that

encourages nullification should be excluded. See, e.g.,United States v. Gorham, 523 F. 2d 1088,

1097-98 (D.C. Cir. 1975) (affirming trial courts refusal to admit evidence bearing no legal

relation to the charges but which might encourage a conscience verdict of acquittal),

supplemented by536 F. 2d 410 (D.C. Cir. 1976); United States v. Lucero, 895 F. Supp. 1421,

1426 (D. Kan. 1995) ([D]efendants are not entitled to present evidence which is irrelevant for

any purpose other than to provoke the finder of fact to disregard the law.).



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Here, like the racino controversy, any of Defendants other arguments or evidence that he

committed the offenses in order to fight alleged misconduct, corruption, a lack of promised

transparency by the Martinez administration, or the misuse of state resources, would all fall

within the impermissible category of seeking to encourage the jury to disregard the law when it

renders its verdicts. Such additional arguments would include Defendants claims that he

committed the offenses in order to expose a shadow government, Doc. 36 at 8-9, to reveal state

business being conducted on private email accounts, and other misuses of state resources or

personnel for political purposes. All such evidence and arguments should be excluded as

irrelevant under Rule 402.Likewise, Defendants prior suggestion that Governor Martinez acted vindictively toward

Defendant when she reported the theft of emails to the FBI, or that she has made Defendant a

scapegoat, or that Governor Martinez is actually prosecuting this case, or the insinuation that

the U.S. Attorney is acting as Governor Martinezs alter ego in bringing charges against

Defendant, should all be prohibited at trial under Rule 402. Indeed, as this Court has previously

noted, [t]he United States Department of Justice through the United States Attorney for the

District of New Mexico is the party bringing these federal charges against the Defendant. . . .

[T]he notion that Governor Martinez is controlling the actions of the Department of Justice in

bringing federal charges against Defendant is absurd. Doc. 46 at 9-10. Thus, the idea that two

separate sovereigns with neither a structural nor political relationship have conspired to

scapegoat Defendant is a paranoid conspiracy theory that needs to be off limits at trial, because

such ideas unfortunately could appeal to those who find paranoid conspiracy theories appealing.

Defendants contention that there is a political storm roiling around this case, seeDoc.

36 at 11, also drives home the point that the mere mention of the racino controversy and any



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other matters above that Defendant has sought to characterize as administration scandals or

misconduct could unfairly prejudice the jury against the United States case. Such controversial

accusations could also threaten to embroil this Court into presiding over a series of mini-trials

during the trial.3 As this Court well knows, of course, Rule 403 is designed to prevent exactly

such inflammatory, unfairly prejudicial, and confusing matters from being presented to the jury.

For that reason, in addition to being excluded under Rule 402, all the matters identified above

should also be excluded from being raised at trial under Rule 403.

3In this regard, the United States prior discussion about the type of distracting and confusingissues that the racino controversy would engender bears repeating here:

In fact, many news articles that Defendant Estrada has attached to his motion areactually helpful insofar as they can be used to illustrate the political circus intowhich this case could quickly degenerate if Defendant Estrada was permitted topursue the defense strategy he has announced. Indeed, the eight page article

attached as Doc. 36-6 can be used to hypothetically illustrate the myriadaccusations and counter-accusations, and the politics surrounding it, thatpermitting evidence about the racino deal would presumably engender at trial.For example, the article quotes both the Governor as stating that the State got a

better deal than it did under the prior administrations no-bid lease, and a

Democratic state official knowledgeable about the bid as stating that the racinodeal had no substantive problems and that the real problem with it was one ofpolitical optics. Doc. 36-6 at 4. Meanwhile, the Governors opponents havequestioned why the bid process allowed only 30 days for submission of proposalson a complex deal, id.at 6, noting that the Governor received large contributionsfrom people connected to the winning bidders, id.at 4, while supporters of thedeal point out that the process complied with state procurement laws, id. at 6, andwas never even required to be put to bid. Id.at 5. The convoluted twists and

turns of the above dispute, which would undoubtedly entail testimony about thecomplexities of the state procurement system, the Downs review process, thework required to be performed under the request for proposals, and thequalifications and bid details of the two competing bidders all seasoned with a

heavy dash of political bashing are wholly unconnected to the charges againstDefendant Estrada.

Doc. 42 at 12-13.



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2. Given the lack of any colorable claim that Defendant had any valid prior consent to

intercept the emails within the meaning of the Wiretap Act, Defendant should not be

allowed to argue that he had any sort of consent or lawful access to intercept the

emails.

While the Wiretap Act contains a statutory consent defense, a defendant bears the burden

of proving prior consent and is not entitled to a jury instruction on that defense unless he first

presents evidence supporting his theory. Hence, at trial, any defense argument or instruction

based on prior consent should be excluded unless and until a defendant presents admissible

evidence that some party actually consented in advance to the defendants interception of his or

her communication. In this case, however, Defendant has no colorable claim that he had any

valid prior consent to intercept the emails. Rather, Defendants notions of consent in this matter

appear to be nothing more than calculated distortions of any sort of legally permissible consent

defense under the Wiretap Act. Consequently, Defendants efforts to argue or present any

evidence in support of his flawed theories of consent or lawful access should be excluded to

avoid confusing the jury and unfairly prejudicing the United States.

The Wiretap Act is a statutory crime that contains a narrow exception:

It shall not be unlawful under this chapter for a person not acting under color of law tointercept a wire, oral, or electronic communication where such person is a party to thecommunication or where one of the parties to the communication has given prior consentto such interception unless such communication is intercepted for the purpose ofcommitting any criminal or tortious act in violation of the Constitution or laws of theUnited States or of any State.4

4Defendant also cannot avail himself of the prior consent defense in part because he interceptedthe emails for the purpose of committing the tort of publication of private facts, a category ofinvasion of privacy that New Mexico recognizes. See Alvarado v. KOB-TV, L.L.C., 493 F.3d1210, 1217 (10th Cir. 2007). The tort of publication of private facts involves the publication oftrue but intimate or private facts about the plaintiff, such as matters concerning the plaintiffssexual life or health. Moore v. Sun Publg Corp., 118 N.M. 375, 383, 881 P.2d 735, 743(1994). The underwear purchases and bank account overdraft notices described in Counts 6, 8and 10 of the Indictment, seeDoc. 23, undoubtedly qualify as facts that are true yet utterlylacking in any valid public interest.



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18 U.S.C. 2511(1)(d). When a statutory crime makes out an exception, the burden is on the

defendant to show by a preponderance of the evidence that the exception applies. See Dixon v.

United States, 548 U.S. 1, 7 (2006). InDixon, the Supreme Court considered the operation of a

duress defense to statutory violations of 18 U.S.C. 922, and affirmed the district courts jury

instructions that required the defendant to prove her duress defense by preponderance of the

evidence. Id. WhileDixoninterpreted duress, a common law defense, the Court considered

statutory defenses an easier question:

[E]ven where Congress has enacted an affirmative defense in the proviso of a statute, thesettled rule in this jurisdiction [is] that an indictment or other pleading ... need not

negative the matter of an exception made by a proviso or other distinct clause ... and thatit is incumbent on one who relies on such an exception to set it up and establish it.

548 U.S. at 7 (citingMcKelvey v. United States, 260 U.S. 353, 357 (1922) (internal quotation

marks omitted)). Other courts have appliedMcKelveyspecifically to the consent provision in

2511(1)(d). See, e.g.,United States v. McCann, 465 F.2d 147, 162 (5th Cir. 1972) (holding

that a court need not instruct the jury on consent under 2511 when defendants have failed to

produce evidence in support of consent). To qualify for an instruction on an affirmative defense,

a defendant must produce evidence supporting each element of that defense. See United States v.

Al-Rekabi, 454 F.3d 1113, 1122-23 (10th Cir. 2006) (affirming a courts refusal to issue an

instruction on a necessity defense). A defendant is not entitled to an instruction which lacks a

reasonable legal and factual basis. United States v. Turner, 44 F.3d 900, 901 (10th Cir. 1995)

(internal quotation omitted).

Consent to an interception can be explicit or implied, but any consent must be actual. See

In re Google Inc., Case No. 13-MD-02430-LHK, 2013 WL 5423918, at *12 (N.D. Cal. Sept. 26,

2013) (unpublished); United States v. Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996); United States

v. Amen, 831 F.2d 373, 378 (2d Cir. 1987); United States v. Corona-Chavez, 328 F.3d 974, 978



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(8th Cir. 2003). Implied consent is not constructive consent. Rather, implied consent is

consent in fact which is inferred from surrounding circumstances indicating that the party

knowingly agreed to the surveillance. Griggs-Ryan v. Smith, 904 F.2d 112, 117 (1st Cir. 1990)

(internal quotation marks omitted). Courts have cautioned that implied consent applies only in a

narrow set of cases. See Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983)

(holding that consent should not be cavalierly implied);In re Pharmatrak, 329 F.3d 9, 20 (1st

Cir. 2003) (Without actual notice, consent can only be implied when the surrounding

circumstances convincinglyshow that the party knew about and consented to the interception.)

(citations omitted). The Wiretap Act expresses a strong purpose to protect individual privacy bystrictly limiting the occasions on which interception may lawfully take place. See United States

v. Harpel, 493 F.2d 346, 351 (10th Cir. 1974). Stiff penalties are provided for its violation, and

it would thwart this policy if consent could routinely be implied from circumstances. Jandak v.

Village of Brookfield, 520 F. Supp. 815, 820 (N.D. Ill. 1981). [I]mplied consent should not be

casually inferred. Williams v. Poulos, 11 F.3d 271, 281 (1st Cir. 1993). The key question in

such an inquiry is whether parties were given sufficient notice. Berry v. Funk, 146 F.3d 1003,

1011 (D.C. Cir. 1998). Without actual notice, consent can only be implied when [t]he

surrounding circumstances [ ] convincinglyshow that the party knew about and consented to the

interception. United States v. Lanoue, 71 F.3d 966, 981 (1st Cir. 1995) (emphasis added).

In fact, the only area in which courts find implied consent is jailhouse or prison telephone

calls. In those circumstances, courts find that the overwhelming notices of call monitoring

guarantee that the caller actually consents to the monitoring, even though the consent remains

implied simply because the caller makes no statement indicating his or her consent. For

example, in United States v. Verdin-Garcia, a prisoner moved to suppress his recorded jailhouse



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calls. 516 F.3d 884, 894-95 (10th Cir. 2008). The court considered three factors: first, the

prison had prominent signs next to the phones saying all calls may be recorded/monitored;

second, all new inmates including the defendant received prison orientation training including a

handbook saying calls are monitored; and third, every call through the prison system begins with

a recorded message saying calls are monitored and recorded. Id. In every such case, the court

finds that the caller actually knew the calls were monitored. See, e.g.,United States v. Faulkner,

439 F.3d 1221, 1225 (10th Cir. 2006).

Courts do not recognize any form of negligent consent or constructive consent. See, e.g.,

Griggs-Ryan, 904 F.2d at 116 ([I]mplied consent is not constructive consent.). No case findsprior consent on the grounds that one party should have known that a third party could

intercept the communication. The opposite is true: many cases find that there is no consent even

though one party to the communication actually knew that a third party had the capability to

monitor the communication. In Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir.

1983), for example, a sales representative who knew that her supervisor couldmonitor any of her

calls did not consent to the supervisors monitoring of her personal calls. Id. Knowledge of the

capability of monitoring alone cannot be considered implied consent. Deal v. Spears, 980 F.2d

1153, 1157 (8th Cir. 1992). That the person communicating knows that the interceptor has the

capacity to monitor the communication is insufficient to establish implied consent the

proponent of consent must establish that one of the parties knew that the specific communication

would be intercepted. Berry, 146 F.3d at 1011.

Courts are especially reluctant to find prior consent when the intercepting individual was

unseen to those transmitting or receiving the intercepted communications. See Smith v. Wunker,

356 F. Supp. 44, 46 (S.D. Ohio 1972) (noting, in discussion of the 2511(2)(d) exception, that



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the concern of Congress was with the interception of private conversations by an unseen

auditor), overruled on other grounds,Boddie v. American Broadcasting Companies, Inc., 731

F.2d 333 (6th Cir. 1984). [W]hile the interceptor need not actively participate in the

conversation for the one-party consent rule to apply, at the very least, his or her presence must be

apparent to those individuals whose conversation is being intercepted. Council on American-

Islamic Relations Action Network, Inc. v. Gaubatz, ____ F.Supp.2d ____, 2014 WL 1289467, at

*11 (D.D.C. Mar. 27, 2014).

And yet this is precisely Defendants declared defense. Defendant has stated, [F]or the

jury to convict Estrada, it would have to believe that he did not have lawful access to thesusana2010.com domain. Doc. 36 at 11. This is utterly false. Lawful access to the site of the

interception has no relevance whatsoever. An unlawful interception can occur even in a public

place where the interceptor has a clear right to be5. Notably, Defendant cites no authority on this

point, and makes no effort to connect the concept of lawful access to any element of a charge

or defense. The United States speculates that Defendant means to imply that interceptions

accomplished from a place of lawful access are interceptions to which the parties to the

communication have impliedly consented though Defendant does not make the argument so

succinctly. As discussed above, the United States is unaware of any court having ever found

implied consent based on the mere fact that the interceptor broke no otherlaws to gain access to

the communication. Instead, Defendants surreptitious and anonymous review of the emails at

issue epitomizes the silent auditor behavior that constitutes the heartland of Wiretap Act

5The oral communication provision of 2511 incorporates a reasonable expectation of privacyrequirement, see18 U.S.C. 2510(2), and courts interpreting that provision consider the publicor private setting to be only one factor in determining whether the communication was private.See, e.g.,Aldrich v. Ruano, 952 F.Supp.2d 295, 302-03 (D. Mass. 2013). But the Wiretap Actcriminalizes intentional interception of wire or electronic communications without any furtherproof that the communication was reasonably expected to be private.



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violations. Moreover, other circumstances such as the pains Defendant took to cover his tracks

by actions such as shifting ownership of the Domain to a fake name, Defendants joining with

the Martinez administrations political opposition, and his decision to lie to federal agents about

his involvement with the email interceptions further belie any attempt by Defendant to contend

that anyone ever gave him actual consent to divert their incoming emails to Defendants account.

Indeed, virtually every aspect of the way Defendant acted in hijacking the emails intended for

persons associated with the Martinez administration stands in stark contrast to the idea that

Defendants intent was ever even remotely friendly to the Martinez administration, much less

part of some consensual arrangement or mutual understanding.Indeed, the mere fact that due to Defendants actions the intended recipients of the emails

Defendant intercepted never received email correspondence that was intended for them

underscores this lack of consent. Defendant obviously was aware that individuals sending emails

to addressees at the Domain could include voters or constituents wanting action from the

Martinez administration, or political allies sharing information or strategy. It is nonsensical to

conceive of the persons for whom such emails were intended consenting to an arrangement that

risked, for example, making them completely unresponsive to constituent concerns or

communications. Further, emails containing very private or personal information were also sent

to these individuals at the Domain. It is inconceivable for Defendant to suggest that anyone ever

gave him any prior consent to snoop through their personal or private emails.

Likewise, the fact that the Martinez administration migrated its domain and email

addresses away from Susana2010.com to Susanapac.com in July 2011 proves that they did not

agree to have their emails intercepted or consent to any access to their email by Defendant.

Defendant attached, to his Reply in Support of Motion to Compel Production of Emails, a pair of



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emails that express alarm about the possibility of Defendant accessing any Domain email. See

Doc. 43-4 (Doc. 43, Exhibit F). Defendant argues that one of the emails showed that Martinezs

political consultant, Jay McCleskey, believed that Estrada had control over the susana2010.com

account. Doc. 43 at 4.6 In fact, the emails show that on July 19, 2011, Jay McCleskey

informed a group of Martinez supporters that Defendant had prevented the renewal of the

Domain. Id. McCleskey reassured the group that the expiration did not present any security

issues, but that the group would simply migrate its email addresses to a new domain,

Susanapac.com. Id. He forwarded technical instructions that explained to the group that all

necessary changes were made on the server side, and that the individual group members did notneed to make any configuration changes to use the new email addresses. Id. McCleskey advised

the group to notify people of the email address change. Id.

There is no evidence that anyone ever imagined Defendant renewing the Domain or

accessing their future email communications. To the contrary, on July 19, 2011,

Susana2010.com was an expired domain and any outside email sent to a Domain address

bounced back as undeliverable. Such was also the case the next day, when the group completed

its transition to email via Susanapac.com. It was a full ten days later when Defendant created a

fictitious identity, Sylvia Tacori, and renewed the Susana2010.com domain under that fake

name. From that point, Defendant put himself into the position of being able to silently read any

6For context, the email at issue, Doc. 43 at 4, was written during the time when Martinezassociates had left messages for Defendant to try to obtain the username and password for theDomain after it had already expired. Defendant did not respond to these messages but insteadmade his snakes in the grass Facebook posting. Nothing in McCleskeys email suggested thatanyone ever envisioned that Defendant would later renew the Domain, or later arrange for emailssent to the expired Domain to be diverted into an account under Defendants control, or thatabandoning the expired Domain would present any security issue. Of course, the law also placedno burden upon McCleskey or any other Martinez associate to plan for all contingencies bypredicting that Defendant might one day choose to commit a criminal act and arrange to intercepttheir emails.



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emails addressed to the Domain for nearly a year, during which time he never spoke up or alerted

any sender or recipient of his interception, until he began disseminating the intercepted emails in

June 2012 again, anonymously.

For Defendant to present a genuine issue regarding consent, he would also need to

specify which party consented and to which communication. Consent is not an all or nothing

proposition. Watkins, 704 F.2d at 582. In Watkins, the Court considered not just whether an

initial access by a third party to a communication was authorized, but also whether the third

party (like a law enforcement agent conducting a wiretap) had an obligation to end his access of

the communication after ascertaining its subject matter. Id. at 584 (The expectation of privacyin a conversation is not lost entirely because the privacy of part of it is violated.). Defendants

putative claim that the migration to Susanapac.com somehow implied a blanket consent from

everyone with an email address at the Domain for Defendant to access all their future incoming

Domain communications, regardless of the particular sender or presumed recipient and

regardless of the content of the communication, is an anathema to the privacy concerns that lie at

the heart of the Wiretap Act.

In sum, Defendants notion of lawful access is a made-up term that Defendant has

invented in his filings. The term has no meaning under the Wiretap Act, and is therefore legally

irrelevant under Rule 402. The term itself would also be highly misleading to any jury. More

broadly, any loose conceptions that Defendant may seek to present to the jury about his alleged

prior consent to intercept the emails will confuse the issues, mislead the jury and waste time,

contrary to Rule 403. Accordingly, however Defendant may choose to phrase it, the United

States respectfully requests that this Court prohibit Defendant from suggesting or arguing that he

had lawful access or negligent or constructive consent to the jury. The United States further



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requests that this Court deny any instruction on the prior consent defense unless and until

Defendant presents evidence that some party actually consented to his interception of the

communications in the indictment.

CONCLUSION

For the foregoing reasons, the United States requests that this Court issue an order to

preclude at trial (including during voir dire or examination of witnesses): (1) any references or

defense arguments or evidence seeking to justify or excuse Defendants actions; (2) any

irrelevant references or defense arguments or evidence that would have the effect of engendering

political sympathy for Defendant or antipathy toward the witnesses at trial; (3) any reference orsuggestions of collusion or conspiracy theories being the reasons why charges have been brought

against Defendant in this case; and (4) any references, suggestions or arguments that Defendant

had lawful access or prior consent to access the intercepted emails notwithstanding the absence

of evidence in support of a legally valid prior consent defense under the Wiretap Act.

Respectfully submitted:

DAMON P. MARTINEZUnited States Attorney

/s/ Filed ElectronicallyFRED FEDERICI

JEREMY PEAAssistant U.S. AttorneysP.O. Box 607

Albuquerque, New Mexico 87103(505) 346-7274

I HEREBY CERTIFY that on May 29, 2014, I filed theforegoing electronically through the CM/ECF system, whichcaused the below counsel of record to be served by electronicmeans, as more fully reflected on the Notice of Electronic

Filing.



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Zachary A. Ives

Molly E. Schmidt-NowaraAttorneys for Jamie Estrada

/s/ Filed Electronically

Jeremy Pea, Assistant U.S. Attorney


US Motion Preclude Defense Arguements

Documents