UNITED STATES v. GONZALES (2023)

OPINION AND ORDER PERMITTING DISCLOSURE OF DEFENDANT'S COUNSELING SCHEDULE TO UNITED STATES DEPARTMENT OF JUSTICE

Defendant Michael Nicholas Gonzales is on pretrial release after being indicted for various cocaine-trafficking offenses. One of his conditions of pretrial release is to undergo outpatient counseling.

The Government claims to have evidence that, while on bond, Defendant has sold cocaine to an FBI informant, prompting the issuance of search warrants that authorize the use of a GPS tracking device on Defendant's vehicle. However, due to an inability to attach the GPS device discreetly, the Government is requesting that this Court order Pretrial Services to disclose Defendant's counseling schedule. The information will purportedly assist agents in affixing the device to Defendant's vehicle while he is in counseling.

I.

On August 3, 2022, United States Magistrate Judge Patricia T. Morris granted the conditional release of Defendant following his initial appearance and arraignment for conspiring to distribute, possessing with intent to distribute, and attempting to possess with intent to distribute cocaine. ECF No. 88. Among the conditions of release, Defendant is required to obtain medical or mental-health treatment as directed, to participate in a substance-abuse program as directed, and not to use or to possess unlawful drugs or controlled substances. Order Setting Conditions of Release, ECF No. 88 at PageID.229–33.

The Government alleges a pretrial-services officer has advanced notice of Defendant's sessions. ECF No. 216 at PageID.844 (sealed).

Since the first week of February 2023, special agents and officers from the FBI have conducted three controlled purchases of cocaine from Defendant. Id. at PageID.845. Each time, a confidential informant (“FBI-1”) arranged to purchase cocaine from Defendant by contacting him on his cellular phone. Id. Defendant and FBI-1 then agreed to a location for the transaction to take place. Id. Each time, task-force officers observed Defendant arrive at the buy location, exit his car, and briefly meet with FBI-1. Id. After Defendant left, officers would follow FBI-1 to a predetermined location and obtain the cocaine that FBI-1 purchased from Defendant. Id. All the cocaine that Defendant sold to FBI-1 has tested positive for cocaine. Id.

Although the agents obtained a search warrant to affix a GPS tracking device on Defendant's vehicle without his knowledge, they cannot accomplish it. Id. Defendant's house has cameras that constantly observe his vehicle, making the FBI's efforts virtually impossible. Id. Similarly, his place of employment is gated, and his employer will not allow law enforcement to enter unescorted. Id. And Defendant has successfully lost the FBI when they tried to follow him. Id. at PageID.846. These difficulties led the FBI to request that the United States Pretrial Services Officer responsible for Defendant's outpatient-counseling schedule release the schedule so that the FBI can try to attach the tracker while he is in a counseling session. Id. But Defendant's probation officer rightly refused without authorization from this Court. Id.

So the Government has filed a motion for the release of Defendant's counseling schedule, which will apparently reveal information that is relevant to the ongoing investigation of his distribution of cocaine, particularly where Defendant stores it.

II.

The Director of the Administrative Office of the United States Courts must “allow access to such [confidential] information ․ in certain limited cases, to law enforcement agencies for law enforcement purposes.” 18 U.S.C. § 3153(c)(2)(E).

The Director of the Administrative Office of the United States Courts has provided such guidance. See Guide to Judiciary Policy, Vol. 8A, Ch. 2, (Revised Sept. 23, 2019). Judges may permit law enforcement to have pretrial information to investigate whether a defendants committed a crime while on pretrial release or violated any of the conditions of their release. Id. § 240.20.30(b)(5)(A), (C). But first, the judge must consider law enforcement's promises of keeping the information private and whether revealing the information could harm anyone. Id. § 240.20.30(b)(5). Any such disclosure “must be limited to the minimum information necessary to carry out the purpose of the disclosure.” Id. at § 240.20.30.

III.

If Defendant illegally sold cocaine to an undercover FBI informant three times while on supervised release, then he violated his pretrial-release conditions and federal law. Therefore, the United States Probation and Pretrial Services System will be permitted to provide the Department of Justice with the future dates of Defendant's scheduled outpatient counseling. However, the information should be strictly limited to the time and location of Defendant's counseling sessions and may not be released to any law-enforcement personnel or Department of Justice employees who are not directly involved in the investigation of Defendant, may not be stored in any permanent fashion, and must be destroyed after the investigation concludes. And the Government will be directed to file a motion to unseal this order upon the conclusion of the investigation against Defendant, regardless of any ongoing investigation into any other person.

IV.

Accordingly, it is ORDERED that the Government's Ex Parte Motion to Produce Defendant's Counseling Schedule, ECF No. 216 (sealed), is GRANTED.

Further, it is ORDERED that this Order be UNSEALED at the conclusion of Defendant's criminal proceedings.

Further, it is ORDERED that United States Pretrial and Probation Services System is PROHIBITED from providing any information other than the time and location of Defendant's counseling sessions.

Further, it is ORDERED that the information may not be shared with any law-enforcement personnel, Department of Justice employees, or any other person who is not directly involved in the investigation of Defendant.

Further, it is ORDERED that the released information may not be stored in any permanent fashion and must be destroyed after the investigation of Defendant concludes.

Further, it is ORDERED that the Government is DIRECTED to file a motion to unseal this Order immediately upon the conclusion of the investigation against Defendant, regardless of any ongoing investigation into any other person.

This is not a final order and does not close the above-captioned case.

THOMAS L. LUDINGTON, United States District Judge