Opinion
1:19-cvr-00256-NONE-SKO-6
07-29-2021
UNITED STATES OF AMERICA, Plaintiff, v. QUINTIN BROWN, Defendant.
(Doc. Nos. 298, 301)
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS AND REQUEST FOR A FRANKS EVIDENTIARY HEARING
Currently pending before the court are defendant Quintin Brown's two motions, filed May 10, 2021, and May 24, 2021, the first of which seeks an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), and the second of which moves to suppress certain evidence based on an alleged violation of 18 U.S.C. § 2517(5). (Doc. Nos. 298, 301.) On July 2, 2021, the court heard argument on the motions. (Doc. No. 317.) Assistant United States Attorney Jeffrey Spivak appeared on behalf of the government. (Id.) Defendant represented himself at the hearing, after he knowingly and voluntarily waived his right to counsel and asserted his constitutional right to represent himself on April 13, 2021, at a hearing conducted pursuant to Faretta v. California, 422 U.S. 806 (1975). (See Doc Nos. 287, 292, 293, 317.)
After reviewing the parties' submissions and having considered their oral arguments, and for the reasons explained below, the court will deny both defendant's request for an evidentiary hearing on his motion brought pursuant to the decision in Franks v. Delaware and his motion to suppress wire and electronic communications based upon his premise that the intercepted communications fell outside the scope of the order authorizing interception of electronic communications.
BACKGROUND
At the time his motion was brought, defendant was charged by indictment with one count of conspiracy to distribute and to possess with intent to distribute oxycodone. (Doc. No. 55.) During the course of an investigation into certain drug trafficking activities, the government applied for and received an order authorizing the interception of wire and electronic communications to and from three cell phones. (Doc. No. 305 at 2.) The government represents that all of the communications at issue in defendant's motions relate to only one of those three phones-that which belonged to Brown's co-defendant in the original indictment, David Marin (“the supplier”). (Id.)
On July 22, 2021 the grand jury for this district returned a superseding indictment only as to defendant Brown, charging him with conspiracy to distribute and possess with the intent to distribute oxycodone in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count One) and distribution and possession with the intent to distribute oxycodone on May 13, 2019 and June 10, 2019, in violation of 21 U.S.C. § 8141(a)(1) (Counts Two and Three). (Doc. No. 328.)
The order authorizing interception permitted the government to intercept communications related to “target offenses, ” which included:
a) Conspiracy to Manufacture, Distribute, and Possess With Intent to Distribute Cocaine and Marijuana, in violation of Title 21, United States Code, Sections 841(a)(1) and 846;
b) Manufacture, Distribution, and Possession With Intent to Distribute Cocaine and Marijuana, in violation of Title 21, United States Code, Section 841(a)(1);
c) Unlawful Use of A Communication Facility to Facilitate Drug Felony Violations, in violation of Title 21, United States Code, Section 843(b);
. . .
g) Violations involving financial transactions and the transportation, transmission, or transfer of monetary instruments that represent the proceeds derived from the distribution of a controlled substance, in violation of Title 18, United States Code,
Section 1956; and conspiracy to commit the above offenses, in violation of Title 18, United States Code, Section 1956(h); and engaging or attempting to engage in monetary transactions of criminally derived property, in violation of Title 18, United States Code, Section 1957 (each a “Target Offense” and, together, the “Target Offenses”).(Doc. No. 305 at 2-3; 1:19-sw-00087-LJO, Doc. No. 1 at 2-3, ¶ 1.)
In authorizing the wiretap, the court also made findings of probable cause that the following information was likely be revealed in intercepted communications:
(1) names, telephone numbers, and residences of the Target Subjects' associates, including drug customers, transporters, importers, and suppliers; (2) the leadership and structure of the drug and firearms trafficking organization; (3) the dates, times, and places for commission of the illegal activities, including the distribution and transportation of controlled substances and firearms; (4) the location, receipt, administration, control, management, and disposition of controlled substances and firearms and proceeds from the trafficking of controlled substances and firearms; (5) the nature, scope, places, and methods of operation; (6) the existence and location of records documenting the distribution and transportation of controlled substances and firearms; and (7) the methods used by the organization to collect and launder the illegal proceeds from the distribution and importation of controlled substances and firearms(Doc. No. 305 at 3; 1:19-sw-00087-LJO, Doc. No. 1 at 3-4, ¶ 3.).
During March and April of 2019, communications between defendant Brown and co-defendant Marin were intercepted. (Doc. No. 305 at 3.) On November 7, 2019, the government filed a criminal complaint against defendant, which was supported by an affidavit from a Drug Enforcement Administration Special Agent (“DEA Special Agent”). (Id.) That affidavit stated that it did not include “details of every aspect of the investigation, ” since the affidavit's purpose was limited to establishing probable cause that defendant Brown had committed the charged offense. (Id.; Doc. No. 1 at ¶ 5.) Thereafter, on November 21, 2019, defendant was indicted by a grand jury on the sole count of conspiracy to distribute and to possess with intent to distribute oxycodone. (Id. at 4.) As noted above, on July 22, 2021, a superseding indictment was returned charging defendant Brown with conspiracy to distribute and to possess with intent to distribute oxycodone and two counts of distribution and possession with the intent to distribute oxycodone. (Doc. No. 328.)
LEGAL STANDARD
A. The Legal Standard Governing a Request a Franks Hearing
In challenging the veracity of an affidavit in support of a search warrant, a defendant is entitled to an evidentiary hearing under Franks if he or she “makes a substantial preliminary showing” that (1) the affiant officer intentionally or recklessly made false or misleading statements or intentionally omitted facts; and (2) the false or misleading statements or omissions were material, that is, were necessary to the finding of probable cause. United States v. Craighead, 539 F.3d 1073, 1080-81 (9th Cir. 2008) (quoting Franks, 438 U.S. at 155-56); see also United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017) (citing United States v. Martinez-Garcia, 397 F.3d 1205, 1214-15 (9th Cir. 2005)); United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011); United States v. Johns, 851 F.2d 1131, 1133 (9th Cir. 1988). An evidentiary hearing is required if the defendant presents specific allegations, alleges a deliberate falsehood or reckless disregard for the truth, and supports that claim with a sufficient offer of proof. Craighead, 539 F.3d at 1080 (citing United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983)). To ultimately prevail on a Franks challenge, the defendant must demonstrate both of the above requirements by a preponderance of the evidence. Perkins, 850 F.3d at 1116. If both requirements are satisfied, the “warrant must be voided and the fruits of the search excluded.” Id. (quoting Franks, 438 U.S. at 156).
Where such a challenge is raised, however, the affidavit in support of a warrant is entitled to “a presumption of validity.” Franks, 438 U.S. at 171.
Under the first step of Franks, a defendant must show that the affiant intentionally or recklessly made misleading statements or omissions. Craighead, 539 F.3d at 1080-81. Generally, “a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter.” Franks, 438 U.S. at 165. In the context of omissions, “[b]y reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw.” United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985), amended by 769 F.2d 1410 (9th Cir. 1985). To do so would “effectively usurp[] the magistrate's duty to conduct an independent evaluation of probable cause.” Perkins, 850 F.3d at 1118; see also Johns, 948 F.2d at 606-07 (omitting facts that “cast doubt on the existence of probable cause” makes such omissions material); United States v. Flores, 679 F.2d 173, 177 n.1 (9th Cir. 1982) (“A magistrate cannot adequately determine the existence of probable cause with the requisite judicial neutrality and independence if the police provide him or her with a false, misleading, or partial statement of the relevant facts.”). However, an affiant's “negligent or innocent mistake does not warrant suppression.” Perkins, 850 F.3d at 1116.
Under the second step of Franks, a defendant must show that the misleading statement or omission was material, i.e. necessary to the probable cause determination. Id. In the context of omissions from the supporting affidavit, “[t]he key inquiry is ‘whether probable cause remains once the evidence presented to the magistrate judge is supplemented with the challenged omissions.'” Id. at 1119 (quoting United States v. Ruiz, 758 F.3d 1144, 1149 (9th Cir. 2014)). Stated differently, an omission is material where the inclusion of the omitted facts would “cast doubt on the existence of probable cause.” Crowe v. Cnty. of San Diego, 608 F.3d 406, 435 (9th Cir. 2010) (quoting United States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992)). Of course, probable cause exists if there is a “fair probability” that a suspect has committed a crime based on the totality of the circumstances. United States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010); see also Illinois v. Gates, 462 U.S. 213, 238 (1983). The probable cause standard does not require a court “to believe to an absolute certainty, or by clear and convincing evidence, or even by a preponderance of the available evidence, that [a suspect] had committed a crime.” United States v. Lopez, 482 F.3d 1067, 1078 (9th Cir. 2007); see also United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc).
“Section 2517(5) [of Title 18 of the United States Code] prohibits use of communications relating to offenses other than those specified in the order of authorization or approval unless the officer has obtained subsequent authorization.” United States v. Torres, 908 F.2d 1417, 1424 (9th Cir. 1990). Under this subsection, the government is required “to submit an additional application when the interceptions it obtains” fall outside the authorizing order. United States v. Homick, 964 F.2d 899, 904 (9th Cir. 1992). Such application is to be “made as soon as practicable.” 18 U.S.C. § 2517(5). The purpose of § 2517(5) is to “protect[] against the Government obtaining ‘a wiretap authorization order to investigate one offense as a subterfuge to acquire evidence of a different offense for which the prerequisites to an authorization order are lacking.'” United States v. Cobb, No. 2:14-cr-00194-APG-NJ, 2015 WL 518543, at *4 (D. Nev. Feb. 9, 2015) (quoting United States v. Watchmaker, 761 F.2d 1459, 1469-71 (11th Cir. 1985)).
ANALYSIS
A. The Request for a Franks Hearing
Defendant argues that he should be granted a Franks hearing because the DEA Special Agent's affidavit filed in support of the criminal complaint and the warrant for defendant's arrest omitted information material to the magistrate judge's probable cause determination. (See Doc. No. 298.) According to defendant, the affiant deliberately omitted the content of intercepted communications because those communications would not have support a finding of probable cause to believe that defendant had committed the offense charged in the complaint. (Id.) Specifically, defendant contends that the omitted recorded conversations established that the oxycodone buyer and the oxycodone supplier were in direct contact with one another, which is evidence that defendant did not act as middleman to their oxycodone transaction as alleged in the complaint. (Id. at 2, ¶ 1; Doc. No. 317.) Defendant Brown also argues that the recorded communications do not demonstrate his complicity in the conduct engaged in by the supplier and the buyer. (Id. at 2, ¶¶ 2, 3; Doc. No. 317.) Rather, defendant Brown argues, the recorded calls demonstrate that any oxycodone transaction occurred strictly between the buyer and the supplier and was on terms to which the two of them agreed. (Id.) Defendant Brown contends that the omissions of the recorded calls from the supporting affidavit misled the reviewing magistrate judge into issuing the complaint charging him with distribution and possession with the intent to distribute oxycodone in violation of 21 U.S.C. § 841 and the warrant for his arrest. (Doc. No. 298.)
Defendant also argues that the interception of communications by federal law enforcement extended beyond the authorization order for the wiretap. (Doc. No. 298 at 3-4, ¶ 4.) This argument is addressed below in § B as part of the court's discussion of defendant's motion to suppress, (Doc. No. 301).
The government counters that defendant's arguments fail as a matter of law because defendant is contesting an affidavit in support of an arrest warrant, not a search warrant; he was ultimately indicted by a grand jury; and defendant's arrest did not occur until after the original indictment in this case was returned. (Doc. No. 305 at 11.) Therefore, according to the government, Franks does not apply because “indictments are not open to challenge upon ground that they are not supported by adequate or competent evidence and neither justice nor concept of a fair trial requires establishment of rule permitting such challenge.” (Id. (citing Costello v. United States, 350 U.S. 359 at 363, 364 (1956)).)
The government also argues, in the alternative, that defendant Brown's motion for a Franks hearing should be denied because he has failed to make the required “substantial preliminary showing that a false statement was (1) deliberately or recklessly included in an affidavit submitted in support of a wiretap, and (2) material to the district court's finding of necessity” under United States v. Shryock, 342 F.3d 948, 977 (9th Cir. 2003). (Doc. No. 305 at 11-12.) According to the government, defendant's motion contests only the supporting affidavit's characterization of his role in the illegal transaction, as well as any culpability for his aiding and abetting of that unlawful transaction. (Id.) It is the government's theory that defendant acted as a broker or relationship manager, making him an aider and abettor of the illegal oxycodone transaction, notwithstanding any direct communication that occurred between the buyer and the supplier, or the individual actions of the buyer and supplier. (Id.)
The court concludes that defendant Brown has not made the required substantial preliminary showing necessary to entitle him to an evidentiary hearing under Franks. Defendant has failed to present any evidence even suggesting that the affiant, a DEA Special Agent assigned to the overarching investigation, acted intentionally or with a reckless disregard for the truth of his affidavit submitted in support of the criminal complaint and arrest warrant issued with respect to defendant Brown. Defendant merely argues that the telephone calls intercepted on the court authorized wiretap demonstrated that the buyer and the supplier were in direct contact with one another and that defendant did not, in essence, act as either a buyer or supplier of oxycodone. (Doc. No. 298.) But as explained above, the affidavit submitted in support of the complaint and arrest warrant did include information concerning the direct communications between the buyer and supplier of the oxycodone, and it did not represent to the reviewing magistrate that defendant acted as either the buyer or the supplier of the oxycodone involved in the transaction. (Doc. No. 1 at ¶¶ 17, 46-60.) Thus, defendant's preliminary showing with respect to his claim of misrepresentation or material omission cannot be found to be substantial because the relevant question under Franks is not whether the affiant failed to include every detail of the investigation in the supporting affidavit at issue; rather, the question is whether the affiant intentionally or recklessly omitted any information that was necessary to present an accurate depiction of the facts material to the probable cause determination. See Perkins, 850 F.3d at 1117-18.
The undersigned pauses to note that this entire premise of defendant's pending motion may well be flawed. First, defendant has cited no authority for the proposition that any remedy other than the suppression of evidence seized pursuant to a warrant is available under the principles announced in Franks. See United States v. Kleinman, 880 F.3d 1020, 1038 (9th Cir. 2017) (If a defendant shows “both” that a supporting affidavit contains intentionally or recklessly false statements or misleading omissions, and that the affidavit cannot support a finding of probable cause without the allegedly false information, “the search warrant must be voided and the fruits of the search excluded.”); see also United States v. Awadallah, 349 F.3d 42, 65 (2d Cir. 2003) (The “Franks doctrine arose in the context of a search warrant, and neither the Supreme Court nor this Court has extended it to arrest warrants.”). In any event, following the issuance of the criminal complaint and arrest warrant in this case, defendant was indicted on the pending charges by a federal grand jury of this district. As the government has noted in its opposition to the pending motion, a grand jury indictment is not subject to challenge on the grounds that it is unsupported by evidence establishing probable cause. Costello v. United States, 350 U.S. 359, 363 (1955) (“An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for a trial on the merits. The Fifth Amendment requires nothing more.”) Thus, the return of the indictment in this case would also clearly appear to render defendant Brown's challenge posed by the pending motion moot.
Here, the affidavit submitted in support of the complaint and arrest warrant explained to the reviewing magistrate judge that defendant Brown had acted to connect the buyer and supplier, that he facilitated the drug transaction, and that he aided the supplier who provided the oxycodone to the buyer. (Doc. No. 1 at ¶ 17.) While the affidavit states that defendant, along with the supplier, “distributed pills” to the buyer and “did distribute pills” to the buyer, the subsequent paragraphs of that affidavit made clear that defendant Brown acted in the role of a broker or facilitator of the transaction: defendant was in communication with both parties during the transaction; he relayed messages between the two; and he was present for certain events, such as when the supplier picked up the buyer from the airport. (Doc. No. 1 at ¶¶ 46, 50-54, 59-60.) Defendant may dispute the significance of his communications and interactions with both the supplier and the buyer during the transaction, but he does not deny those communications and interactions occurred, nor does he contest the contents of the conversations as conveyed in the supporting affidavit. (Doc. No. 298 at 2, ¶ 1.) Defendant also cannot credibly contend that the affidavit omitted the fact that the buyer and supplier communicated directly at times because the affidavit clearly included that information. (Doc. No. 1 at ¶¶ 47-49, 54-55.) Thus, defendant appears to be arguing only that more evidence of the direct communications between the buyer and supplier, and more evidence that he did not act as a buyer or supplier, should have been included. That argument, however, does not amount to a substantial preliminary showing that the affiant intentionally or recklessly omitted information that was necessary in order to present an accurate depiction of the facts material to the probable cause determination. No. additional detail was necessary to convey an accurate understanding of the evidence establishing probable cause to believe that defendant Brown had aided and abetted the distribution of and possession with the intent to distribute oxycodone. (Doc. No. 1 at 3) (referencing aiding and abetting).
Thus, defendant has failed to make a substantial preliminary showing that the DEA Special Agent's affidavit in support of the complaint and arrest warrant was misleading, whether intentionally, recklessly, or even negligently. See Franks, 438 U.S. at 171 (“Allegations of negligence or innocent mistake are insufficient.”). Because defendant has not made a sufficient showing as to the first requirement under Franks, his motion will be denied. See Craighead, 539 F.3d at 1082 (concluding that the defendant failed to identify any false or misleading statements, and therefore declining to address the questions of whether the affiant acted intentionally or with a reckless disregard for the truth and whether any challenged statements were material to the probable cause determination).
Even if defendant Brown had made a substantial preliminary showing as to the first requirement so as to be entitled to an evidentiary hearing under Franks, he has not satisfied the second requirement. This is because the inclusion of additional information regarding direct communications between the buyer and supplier, and regarding defendant's role in the transaction, would not have altered the probable cause determination in this case.
First, with respect to the alleged omission of sufficient information regarding direct communication between the buyer and supplier, the affidavit already relayed more than one conversation between the buyer and supplier that did not include defendant. (Doc. No. 1 at ¶¶ 47-49, 54-55.) Therefore, defendant is simply incorrect in claiming that the fact of direct communication was omitted from the affidavit. Nonetheless, he argues that if additional conversations had been included, the reviewing magistrate judge would not have found the criminal complaint and arrest warrant as to him to have been supported by probable cause. (Doc. No. 298 at 2, ¶ 1.) However, the undersigned concludes that the inclusion in the affidavit of additional communications between the buyer and supplier that did not include defendant would not have impacted the probable cause determination. Again, defendant does not dispute he was in contact with the buyer and supplier-only the significance of those conversations. (Doc. No. 298.) Essentially, in seeking an evidentiary hearing under Franks, defendant argues that he could not have conspired to distribute and possess with intent to distribute oxycodone because the buyer and supplier did not need him to communicate with one another and complete the transaction. The argument is unpersuasive and does not support defendant's request for an evidentiary hearing. /////
In seeking a criminal complaint and arrest warrant, the government is not required to show that defendant acted with the requisite intent beyond a reasonable doubt. See United States v. Noster, 590 F.3d 624, 629-30 (9th Cir. 2009) (“Probable cause does not require proof beyond a reasonable doubt of every element of a crime.”); see also United States v. Razo-Quiroz, No. 1:19-cr-00015-DAD, 2019 WL 3035556, at *11 (E.D. Cal. July 11, 2019) (“A Franks challenge to a warrant is not properly based on such arguments regarding a failure to establish probable cause with respect to intent or scienter.”). Here, even if the alleged omitted facts had been included in the affidavit, there would have been established a “fair probability” that defendant committed the charged offense. See Struckman, 603 F.3d at 739.
Second, the inclusion of additional information regarding defendant's role in the transaction-i.e., his claim that he was not complicit in the actions of the buyer and supplier, which the court construes based upon defendant's argument at the hearing on his motion as the contention that he cannot be held criminally responsible for the transaction if he was not himself a buyer or supplier-would also not have impacted the reviewing magistrate's probable cause determination. (Doc. No. 298 at 2, ¶¶ 2, 3; Doc. No. 317.) Again, the court notes that the supporting affidavit disclosed that defendant was neither a buyer nor a supplier but rather that he connected, facilitated, and aided the supplier and the buyer, and the transaction, though defendant disputes that mere communications may result in his criminal liability. (Doc. No. 1 at ¶ 17.) Whether defendant's level and manner of communication and participation amounts to guilt beyond a reasonable doubt of distributing or possessing with the intent to distribute oxycodone or aiding and abetting the same is a matter for the finder of fact at a trial and does not bear on a probable cause determination related to the issuance of a criminal complaint and arrest warrant. Therefore, any additional details regarding defendant's specific role in the unlawful transaction would simply not have been material to the probable cause determination.
B. The Motion to Suppress Based on Violation of 18 U.S.C. § 2517(5)
Next, defendant Brown contends that the telephone communications seized and relied upon by the government in prosecuting this case were outside the scope of the order authorizing the wiretap and were thus obtained in violation of 18 U.S.C. § 2517(5). (Doc. No. 301.) Defendant argues that under § 2517(5), the government was required to submit an additional application for subsequent wiretap authorization but failed to do so. (Id. at 1.) Defendant points to the government's statement of non-opposition to his earlier, granted, motion to sever as proof of his contention in this regard. (Id. at 1-2; see Doc. No. 144.) There, defendant contends, the government conceded that the events constituting the basis for the offense with which he was charged are sufficiently unrelated to the conduct specified in the wiretap authorization order for defendant's case to be tried with his co-defendants. (Id.) Defendant believes that concession necessarily implies the government should have applied for a subsequent wiretap authorization and that its failure to do so now warrants suppression of the communications being offered into evidence against him. (Doc. No. 301 at 1-2.)
Out of an abundance of caution and in light of defendant's pro se status, the court also incorporates in its analysis defendant's claim from his Franks motion that the interception of communications extended past the period authorized by the wiretap order. (Doc. No. 298 at 3-4, ¶ 4.)
At the hearing on this motion to suppress defendant clarified that he is specifically arguing that oxycodone trafficking was not named as a target offense in the authorizing order, but rather that cocaine and marijuana trafficking were. (Doc. No. 317.) As a result, he contends, any conspiracy, possession or distribution of oxycodone was not properly subject to interception under the authorizing order. (Id.) He also contends that the interception of communications under the order was not appropriately curtailed and exceeded the authorized timespan. (Id.; Doc. No. 298 at 3-4.) Finally, defendant argues that once the “objective was achieved, ” meaning the arrest of the oxycodone buyer (defendant Pratt), communications continued to be intercepted illegally and were included in the affidavit submitted in support of the criminal complaint and arrest warrant. (Id.)
The government argues that defendant's motion to suppress should be denied for three reasons. (See Doc. No. 305 at 13-14.) First, the government asserts that the authorizing order encompassed the target offenses of 21 U.S.C. § 843, use of a communications facility to commit a drug felony, and 18 U.S.C. §§ 1956, 1957, money laundering, and that the charged offense in this matter falls within the ambit of that authorization. (Id. at 13.) Second, the government identifies the order's authorization to intercept calls related to offenses under 21 U.S.C. § 841(a)(1), distribution of a controlled substance, and argues for the application of that authorization to the distribution of oxycodone offense charged against defendant in the complaint. (Id.) The government maintains this position notwithstanding the fact that the order identifies marijuana and cocaine as the target offenses and not oxycodone. (Id.) Third, the government avers in the alternative that even if defendant's conduct did not fall within the scope of the target offenses identified in the authorizing order, that conduct “arose out of” and was “closely related to” the co-defendant supplier's other drug trafficking activity. (Id. at 13-14.) As such, according to the government, another application for wiretap authorization was not required pursuant to the decision in Homick, 964 F.2d at 904. (Id.) Finally, the government argues that the plain language of the wiretap authorization order permitted the government to continue to intercept communications following the arrest of the buyer (defendant Pratt), because the order stated interception could continue until the communications “fully reveal[ed] the manner in which the above-named persons and others . . . are committing the offenses described herein . . .” (Id. at 12 n.3; 1:19-sw-00087-LJO, Doc. No. 1 at 5.) The government contends that the stated end point of the wiretap authorization had not been reached when any of the objected to conversations were recorded. (Doc. No. 305 at 12 n.3.)
The government also notes defendant's failure to cite authority contrary to the government's position, though the government likewise does not cite authority in taking that position. (Doc. No. 305 at 13.)
Even assuming arguendo that the communications intercepted in relation to the charged offense did not fall within the scope of the authorizing order, the court finds the charged offense still arose out of and was closely related to the supplier's (defendant Marin) other drug trafficking activities. Homick, 964 F.2d at 904. The only appreciable difference between the offense alleged in the complaint and the target offenses of the wiretap is the type of controlled substance involved. That distinction is not a sufficient basis upon which to find that this is an “other offense” as contemplated under § 2517(5). Id. The Ninth Circuit and district courts in this circuit have consistently concluded under circumstances similar to those presented here that the charged offense arose out of and was closely related to the wiretap target offenses, meaning that no additional application for wiretap authorization was required. See Id. (finding wire fraud evidence arose out of and was closely related to a robbery and murder investigation where the co-defendants conspired to fraudulently obtain from police custody a ring stolen from a murder victim); United States v. Ortega, 520 Fed.Appx. 626 (9th Cir. 2013) (finding no error in the denial of a motion to suppress kidnapping evidence where the kidnapping was not a target offense but it arose out of and was closely related to the targeted narcotics and money laundering offenses); Cobb, 2015 WL 518543, at *5-6 (finding that a federal charge of operating an illegal gambling business arose out of and was closely related to the state law gambling offenses specified in the authorizing order); see also United States v. Bennett, 219 F.3d 1117, 1123 (9th Cir. 2000) (finding that a murder-for-hire plot, discovered during investigation of a drug conspiracy, was “interwoven” with the drug operation and therefore the authorization order was “sufficient to encompass the murder-for-hire plot” without a further showing of necessity).
Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-(3)b.
Moreover, it certainly does not appear that the wiretap authorization order in this case was used as “subterfuge” to pursue investigation of other crimes for which “the prerequisites to an authorization order [were] lacking.” Cobb, 2015 WL 518543, at *5 (quoting and citing Watchmaker, 761 F.2d at 1469-70). While continuing to assume, without deciding, that the offense charged against defendant Brown in the complaint fell outside the wiretap authorization order's target offenses, the court concludes that an application for subsequent authorization was not necessary because the charged offense arose from and was closely related to the target offenses. Due to this conclusion, it is unnecessary to address whether the charged offense was within the scope of the wiretap authorization order, including the target offenses of 21 U.S.C. § 843; 18 U.S.C. §§ 1956, 1957; and 21 U.S.C. § 841(a)(1). Finally, the court finds that, by the plain language of the authorizing order, the interception of communications did not extend past the time allowed by the authorizing order.
CONCLUSION
For the reasons set forth above, defendant's motion for an evidentiary hearing under Franks, (Doc. No. 298), and his motion to suppress the intercepted communications in this case, (Doc. No. 301), are DENIED.
IT IS SO ORDERED.