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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 Case No. 15-20283 

vs. HON. GEORGE CARAM STEEH 

 

BORIS ZIGMOND, et al., 

 

 Defendants. 

___________________________________/ 

ORDER DENYING DEFENDANT ZIGMOND’S MOTION 

TO DISMISS THE INDICTMENT, OR IN THE ALTERNATIVE, 

SUPPRESS WIRETAP COMMUNICATIONS (DOC. 202) 

 Defendant Boris Zigmond is charged with conspiracy to distribute 

and possess with intent to distribute controlled substances in violation of 21 

U.S.C. §§ 841(a)(1), 846, and conspiracy to commit money laundering in 

violation of 18 U.S.C. § 1956(h). This matter is presently before the Court 

on Zigmond’s Motion to Dismiss the Indictment, or in the alternative, 

Suppress the Wiretap Communications. (Doc. 202). Oral argument was 

held on July 13, 2017. For the reasons stated below, Zigmond’s motion is 

DENIED. 

 

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I. Background 

On November 5, 2014, the government filed an application, along 

with a supporting affidavit, to authorize the interception of communications 

between Rodney Knight and numerous individuals, including Zigmond, 

regarding an investigation of a target telephone (TTI) allegedly belonging to 

Knight. District Judge Robert H. Cleland issued an authorization order on 

the same date. On February 25, 2015 the Government applied to intercept 

communication of a second target telephone (TTII) purportedly belonging to 

Zigmond. District Judge Mark A. Goldsmith issued an authorization order 

on the same date. Both applications included supporting affidavits. The 

affidavits and authorization orders each discussed minimization 

procedures. Zigmond challenges sufficiency and scope of these 

documents. 

II. Legal Standard 

A. The Fourth Amendment 

 The Fourth Amendment guarantees “[t]he right of the people to be 

secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures,” and states that “no warrants shall issue, but upon 

probable cause, supported by oath or affirmation. . . .” U.S. CONST. amend. 

IV. Officers, therefore, “must obtain a valid warrant and conduct the search 

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in a reasonable manner.” Baranski v. Fifteen Unknown Agents of Bureau 

of Alcohol, Tobacco & Firearms, 452 F.3d 433, 445 (6th Cir. 2006). A 

search is unreasonable where it is “out of proportion to the end sought.” 

United States v. Costner, 153 F.2d 23, 26 (6th Cir. 1946). “There is no 

formula for the determination of reasonable. Each case is to be decided on 

its own facts and circumstances.” Id. (internal quotations and citations 

omitted). The Court shall look at “the totality of the circumstances,” Ohio v. 

Robinette, 519 U.S. 33, 39 (1996), and consider “whether what was done 

and found bears a reasonable relation to the authority then possessed and 

exercised or transcends it to become oppression.” Costner, 153 F.2d at 

26. 

B. The Sixth Amendment 

 The Sixth Amendment protects a defendant’s right to effective 

assistance of counsel, which is “the right of the accused to require the 

prosecution’s case to survive the crucible of meaningful adversarial 

testing.” United States v. Cronic, 466 U.S. 648, 654 (1984). The right to 

counsel “does not attach until the initiation of adversary judicial 

proceedings,” whether “by way of formal charge, preliminary hearing, 

indictment, information, or arraignment.” United States v. Gouveia, 467 

U.S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)). 

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C. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 

 Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 

18 U.S.C. § 2510 et seq., (Title III), requires “each application for an order 

authorizing or approving the interception of a wire, oral, or electronic 

communication” to include “a full and complete statement as to whether or 

not other investigative procedures have been tried and failed or why they 

reasonably appear to be unlikely to succeed if tried or to be too 

dangerous.” 28 U.S.C. § 2518(1)(c). See also 28 U.S.C. § 2518(3)(c) 

(requiring the judge approving a wiretap to determine that “normal 

investigative procedures have been tried and have failed or reasonably 

appear to be unlikely to succeed if tried or too be too dangerous.”). “Any 

aggrieved person in any trial, hearing, or proceeding in or before any court 

. . . may move to suppress the contents of any wire or oral communication 

intercepted pursuant to this chapter, or evidence derived therefrom, on the 

grounds that – (i) the communication was unlawfully intercepted; (ii) the 

order of authorization or approval under which it was intercepted is 

insufficient on its face; or (iii) the interception was not made in conformity 

with the order of authorization or approval.” 28 U.S.C. § 2518(10)(a). 

 

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III. Analysis 

A. The Fourth Amendment 

 Zigmond raises three challenges based upon the Fourth Amendment. 

Zigmond first asserts that the Government made material misstatements 

and omissions to the supervising court. A defendant may move to 

suppress evidence by challenging a warrant affidavit on the basis that it 

contains a false statement. Franks v. Delaware, 438 U.S. 154, 155-56 

(1978). Evidence shall be suppressed if the affidavit’s remaining content is 

insufficient to establish probable cause. Id. at 156. A defendant may raise 

a similar challenge to statements and omissions made to the court that 

authorized a wiretap. United States v. Ippolito, 774 F.2d 1482, 1484-85 

(9th Cir. 1985). 

The Government’s affidavits in support of its wiretap applications 

each include 8 pages dictating minimization procedure, including: 

 Meeting with all monitoring agents to discuss the requirements 

of minimization before interceptions begin; 

 Providing all monitoring agents with a memorandum regarding 

minimization and a copy of the court order authorizing 

interception; 

 Posting a copy of that memo and order at the listening site; and 

 Requiring all monitoring agents to sign a form indicating that 

they read the affidavit, the court order authorizing interception, 

and the minimization memorandum, and that they are familiar 

with the contents of the order and will intercept communications 

in compliance with that order. 

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The affidavit notes that special attention will be paid to minimizing 

privileged communications. For example, when discussing text messages, 

the affidavit states that messages that are not criminal in nature will be 

minimized and not accessed by other members of the investigative team. If 

a message appears to be privileged, it will be marked privileged and 

secured from access by other members of the investigative team. If a text 

is relevant to the investigation or otherwise criminal in nature, it will be 

marked non-minimized or pertinent and may be shared with the other 

agents and monitors involved in the investigation. Messages marked 

minimized or privileged will not be disseminated to the investigative team. 

The affidavit states that these requirements “will be strictly followed.” 

 Zigmond states that the Government represented to the supervising 

court that it would minimize privileged calls, but made a misstatement 

because it failed to minimize calls that are protected under the attorneyclient privilege. He further argues that the Government’s monitoring team 

shared these privileged calls with the investigative team, and omitted the 

disclosure of this information. The Government denied Zigmond’s 

allegations at oral argument. It proffered that Stephen Hiyama, the 

Assistant United States Attorney who led the filter team, an agent on the 

filter team, and the supervising agent of the investigative team were 

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present to testify that privileged calls were not shared with the investigative 

team. 

 The Court finds that the Government’s minimization efforts were not 

unreasonable. This investigation involved numerous defendants for a 

widespread drug conspiracy. The Government is given latitude when 

conducting wiretaps in these situations. Scott v. United States, 436 U.S. 

128, 142 (1978) (“when the investigation is focusing on what is thought to 

be a widespread conspiracy more extensive surveillance may be justified in 

an attempt to determine the precise scope of the enterprise.”); United 

Stated v. Torres, 908 F.2d 1417, 1424 (9th Cir. 1990) (stating that when 

wire interceptions concern a drug ring “the need to allow latitude to monitor 

agents is paramount.”); United States v. Gray, 372 F. Supp. 2d 1025, 1044 

(N.D. Ohio 2005) (“courts tolerate more extensive surveillance in 

conspiracy cases”) (internal quotations and citations omitted). Further, 

calls intercepted on TTI revealed that Zigmond may be communicating with 

attorneys to perpetuate fraud in connection with fighting the forfeiture of 

$15,000, purportedly belonging to Zigmond, that was seized by the 

Southfield police. As a result, the Government had reason to believe that 

calls intercepted on TTII between Zigmond and attorneys may be criminal 

in nature, and therefore, not covered by the attorney-client privilege. The 

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Government also took precautions to minimize privileged calls by 

thoroughly instructing monitoring agents on the minimization procedures 

and requiring their acknowledgement of the procedures outlined in the 

affidavit, order, and memorandum. 

Finally, even if some calls protected by attorney-client privilege were 

improperly minimized, Zigmond has not shown that his defense was 

prejudiced.1 Zigmond attempts to show prejudice through three acts – the 

allegation that the investigative team reviewed privileged calls to learn his 

strategy and prosecute its case; the Government accidentally providing his 

co-defendants’ attorneys with all of the TTII wiretap recordings, including 

privileged calls; and the temporal proximity between interception of 

privileged calls and Zigmond’s arrest. Each attempt fails. The Government 

proffered that its investigative team did not receive the privileged calls. 

Although a United States Attorney’s Office paralegal uploaded privileged 

calls to a discovery database accessible by attorneys representing 

Zigmond’s co-defendants, the mistake was corrected. The privileged calls 

were removed from the discovery database and the defense attorneys who 

had accessed the privileged calls before their removal agreed to destroy 

 

1 Zigmond’s briefs discuss prejudice only in the context of his Sixth Amendment arguments. The Court, 

however, may consider prejudice in determining whether to suppress evidence collected from a wiretap 

that allegedly violated the Fourth Amendment. See Gray, 372 F. Supp. 2d. at 1047.

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the recordings. Finally, Zigmond asserts that the Government listened to 

privileged calls and used them to prosecute because he was arrested on a 

complaint, rather than an indictment, filed shortly after the Government 

intercepted his communications with a tax attorney and various criminal 

attorneys. Zigmond does not offer evidence to substantiate this allegation. 

He merely asks the Court to conclude, without discussing the nature of the 

calls and their connection to this case or mentioning any specific timeline, 

that his arrest illustrates that the Government listened to privileged calls. At 

oral argument, Zigmond’s attorney conceded that he cannot show that the 

Government used the privileged calls to further its case. While such a task 

is admittedly difficult, Zigmond’s current arguments are insufficient to show 

prejudice. 

 Zigmond relies on United States v. Renzi, 722 F. Supp. 2d. 1100 (D. 

Ariz. 2010) to argue that the Government violated the Fourth Amendment 

by seizing evidence outside the scope of the court’s authorization order. In 

Renzi, a federal agent seeking a wiretap order represented to the 

supervising court that all attorney-client privileged conversations would be 

minimized. Id. at 1104. The supervising court issued an order directing the 

government to “minimize all such interceptions in accordance with Title III.” 

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Id. at 1105. The government broke the court order by failing to minimize 

privileged calls and the court suppressed the entire wiretap. Id. at 1118. 

Zigmond concedes that, unlike Renzi, the authorization orders here 

do not explicitly address monitoring privileged communications between 

Zigmond and his attorneys. He asserts, however, that the Government 

was required to minimize privileged calls because it represented that it 

would, and because the court orders required the Government to comply 

with the minimization procedures in Title III. The former assertion fails. As 

described above, the Court finds that the Government minimization efforts 

were not unreasonable. Further, the Government did not violate the 

minimization procedures in Title III. The authorization orders require the 

Government to intercept wire communications “in such way as to minimize 

the interception of communications not otherwise subject to interception 

under Chapter 119 of Title 18 of the United States Code.” (Doc. 207-4 at 

PageID 1507). At oral argument, Zigmond’s attorney stated that Title III 

requires the minimization of all calls that are not authorized to be 

intercepted, including attorney-client calls. He concludes, therefore, that 

despite the lack of a specific prohibition, the authorization orders’ 

generalized language regarding Title III creates the same prohibition as in 

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Renzi, which the Government violated by failing to minimize attorney-client 

calls. 

“Title III authorizes the interception of all pertinent communications.” 

Renzi, 722 F. Supp. 2d at 1126 (citing 18 U.S.C. 2518(3)(a)-(b), (4)(c)). No 

“otherwise privileged wire or oral communication intercepted in accordance 

with or in violation of the provisions of this chapter shall lose its privileged 

character.” 18 U.S.C. § 2517(4). The statute, therefore, “contemplates that 

privileged communications will be intercepted with appropriate limitations 

on use and disclosure.” Renzi, 722 F. Supp. 2d. at 1126. “Thus, while the 

use and disclosure of privileged calls is addressed by the statute, there is 

no statutory requirement that attorney-client privileged calls be minimized, 

per se.” Id. Thus, the Government is not required to minimize attorneyclient calls under the authorization orders or Title III, and minimizing 

attorney-client privileged calls does not amount to seizing evidence beyond 

the scope of the authorization order. 

Finally, Zigmond argues that the Government executed the search in 

an unreasonable manner by recording calls that it knew or should have 

known may be related to attorney representation. This argument fails. The 

Government had reason to believe that Zigmond was contacting attorneys 

to perpetuate fraud regarding the seizure of $15,000 allegedly connected to 

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the charged drug conspiracy. It was not unreasonable for the monitoring 

team to review these calls. 

B. The Sixth Amendment

 Zigmond argues that the Government violated the Sixth Amendment 

by recording his conversations with counsel. His argument fails for two 

reasons. First, his Sixth Amendment right to counsel had not attached at 

the time of the wiretap. Zigmond had not been formally charged, he had 

not appeared for a preliminary hearing, the Government had not filed an 

indictment or information, and he had not be arraigned. Further, the Court 

finds that the Government’s wiretap investigation does not signal the 

initiation of adversarial proceedings. It was merely an investigation, not an 

accusation. 

 Moreover, Zigmond cannot establish a violation of the Sixth 

Amendment right to counsel ensuing from government surveillance. To do 

so, he “must not only show that conversations with an attorney were 

surreptitiously monitored, but must also show that the information gained 

was used to prejudice the claimant's defense in his criminal trial.” Sinclair 

v. Schriber, 916 F.2d 1109, 1112 (6th Cir. 1990) (citing Weatherford v. 

Bursey, 429 U.S. 545, 552 (1977)). Zigmond has not shown prejudice. 

See infra. 

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C. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 

Defendant argues that the Government violated Title III by failing to 

meet the requirements contained in 28 U.S.C. § 2518(1)(c). The Court, 

however, finds that the Government satisfied the challenged elements of 

Title III. The two judges that issued the authorization orders reviewed the 

affidavits and ruled that the Government adequately established that 

normal investigative procedures have been tried and failed, reasonably 

appear unlikely to succeed if continued, or reasonably appear unlikely to 

succeed if tried. Courts reviewing the validity of an electronic surveillance 

order “will accord ‘great deference’ to the determinations of the issuing 

judge.” United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000). 

“Thus, the fact that a later trial judge or reviewing court may feel that a 

different conclusion was appropriate does not require, nor even authorize, 

the suppression of evidence gained through such a warrant.” United States 

v. Alfano, 838 F.2d 158, 162 (6th Cir. 1988). Further, the Sixth Circuit “has 

clarified that the purpose of the necessity requirement ‘is not to foreclose 

electronic surveillance until every other imaginable method of investigation 

has been unsuccessfully attempted, but simply to inform the issuing judge 

of the difficulties involved in the use of conventional techniques.’” Corrado, 

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227 F.3d at 539 (quoting United States v. Landmesser, 553 F.2d 17, 20 

(6th Cir.1977). 

The wiretap affidavits are 70 and 110 pages, and “include a detailed 

description of the evidence that had already been obtained as well as a 

separate section detailing the aims of and need for continued electronic 

surveillance.” Id. These justifications include facts regarding the 

complexity of the alleged conspiracy. On these facts, we do not believe 

that the issuing judges abused their discretion in granting the Government’s 

applications. 

IV. Conclusion 

 For the reasons stated above, Zigmond’s motion is DENIED. 

IT IS SO ORDERED. 

Dated: July 25, 2017 

 s/George Caram Steeh 

 GEORGE CARAM STEEH 

 UNITED STATES DISTRICT JUDGE 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

July 25, 2017, by electronic and/or ordinary mail. 

s/Marcia Beauchemin 

Deputy Clerk

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