Opinion
2:20-cr-47
06-24-2021
UNITED STATES OF AMERICA, v. JAMES LAMOUNT GRAHAM
MAGISTRATE JUDGE'S ORDER AND REPORT AND RECOMMENDATION
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA.
This matter is before the Court on Defendant's Motions, docs. 174-84, and the Government's Motion for Reciprocal Discovery, doc. 217. The Government filed a Consolidated Response to eight of Defendant's Motions. Doc. 216. The Government also filed individual Responses to Defendant's Motion to Dismiss, Motion to Suppress Cell Phone, Motion to Search Real Property, and Motion to Suppress Electronic Surveillance. Docs. 218-21. Defendant filed a Response to the Government's Motion for Reciprocal Discovery. Doc. 237. Additionally, the Court held a hearing on April 12, 2021, where the parties addressed Defendant's Motion to Dismiss, doc. 178, Motion to Suppress Cell Phone, doc. 179, Motion to Suppress Search of Real Property, doc. 180, Motion to Suppress Electronic Surveillance, doc. 184, and the Government's Motion for Reciprocal Discovery, doc. 217. See Doc. 248. Following the hearing, the parties submitted a Notice of Joint Stipulation and Notice of Second Joint Stipulation. Docs. 245, 246.
For the reasons that follow, I GRANT as unopposed:
1. Defendant's Motion for Rule 807 Residual Exception Disclosure, doc. 174;
2. Defendant's Motion for Information Regarding Bad Prior Acts, doc. 175;
3. Defendant's Motion for Notice by the Government of the Intention to Use Evidence, doc. 176;
4. Defendant's Motion for Co-conspirator's Hearsay Exceptions, doc. 177;
5. Defendant's Motion to Preserve Evidence, doc. 182;
6. Defendant's Motion for Substance of Promises or Plea Bargains Between Witnesses and Government, doc. 183; and
7. Government's Motion for Reciprocal Discovery, doc. 217.
I DENY:
8. Defendant's Motion Requesting Additional Peremptory Challenges, doc. 181.
I also RECOMMEND the Court GRANT as unopposed:
9. Defendant's Motion to Suppress Cell Phone, doc. 179.
Additionally, I RECOMMEND the Court DENY:
10. Defendant's Motion to Dismiss, doc. 179;
11. Defendant's Motion to Suppress Search of Real Property, doc. 180; and
12. Defendant's Motion to Suppress Electronic Surveillance, doc. 184.
BACKGROUND
Defendant has been indicted on: one count of conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846; two counts of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and 33 counts of use of a communication facility, in violation of 21 U.S.C. § 843(b). Doc. 3. These charges stem from allegations Defendant and others, from at least April 7, 2018, knowingly conspired to possess with intent to distribute methamphetamine. Id.
Defendant filed 11 Motions, and the Government filed a Motion for Reciprocal Discovery, which the Court now addresses. Docs. 174-84, 217. Additionally, the Court conducted a hearing on April 12, 2021, at which the parties addressed Defendant's Motion to Dismiss, doc. 178, Motion to Suppress Cell Phone, doc. 179, Motion to Suppress Search of Real
Property, doc. 180, Motion to Suppress Electronic Evidence, doc. 184, and the Government's Motion for Reciprocal Discovery, doc. 217. At the hearing, Defendant was represented by counsel, John Ossick, and John Harper and Karl Knoche appeared on behalf of the Government. Doc. 248. The undersigned's Order and Report and Recommendation is based on the entire record before the Court, including the parties' written submissions and argument presented at the April 12, 2021 hearing.
DISCUSSION
I. Motions Due to Be Granted as Unopposed
Several of Defendant's Motions are unopposed, doc. 216, or have been resolved by the Notices of Joint Stipulation, docs. 245, 246. Additionally, the Government's Motion for Reciprocal Discovery is not opposed and is due to be granted. Doc. 217.
A. Defendant's Unopposed Motions
The Government does not oppose Defendant's Motion for Rule 807 Residual Exception Disclosure, doc. 174. Doc. 216 at 8. The Government explains it will notify the defense prior to trial of any hearsay statements it intends to introduce and otherwise comply with Federal Rule of Evidence 807. Id. Similarly, Defendant's Motion for Information Regarding Bad Prior Acts, doc. 175, is not opposed, as the Government represents it has already filed the requested notice. Doc. 216 at 6 (citing Doc. 116). The Government also does not oppose Defendant's Motion for Notice by the Government of the Intention to Use Evidence, doc. 176. Doc. 216 at 7. In its Response, the Government explains it intends to use all its evidence during the case-in-chief or during rebuttal, absent an explicit expression to the contrary. Id. Additionally, Defendant filed a Motion to Preserve Evidence. Doc. 182. In it, Defendant explains he is only seeking preservation and the Motion does not demand any disclosure, discovery, inspection, or production. Id. at 1. The Government does not oppose Defendant's Motion to Preserve Evidence. Doc. 216 at 4-5. Likewise, Defendant filed a Motion for Substance of Promises or Plea Bargains Between Witnesses and Government, doc. 183, which the Government does not oppose and represents it will file a Brady-Giglio notice, doc. 216 at 4.
Finally, Defendant filed a Motion for Co-conspirators' Hearsay Exceptions. Doc. 177. The Government initially opposed Defendant's Motion. Doc. 216 at 5-6. In the parties' status report, they do not mention Defendant's Motion for Co-conspirator's Hearsay Exceptions. See Doc. 242. However, at the hearing, Defendant's counsel explained the status report only contained the opposed motions and, in his opinion, all other pending motions are due to be granted as unopposed. The Government confirmed it does not oppose any pending motions which are not contained in the parties' status report. Thus, based on the parties' representations at the April 12, 2021 hearing, the Government has withdrawn any opposition it had to Defendant's Motion for Co-conspirators' Hearsay Exceptions. Doc. 177.
Accordingly, I GRANT as unopposed Defendant's Motion for Rule 807 Residual Exception Disclosure, doc. 174, Defendant's Motion for Information Regarding Bad Prior Acts, doc. 175, Defendant's Motion for Notice by the Government of the Intention to Use Evidence, doc. 176, Defendant's Motion for Co-conspirators' Hearsay Exceptions, doc. 177, Defendant's Motion to Preserve Evidence, doc. 182, and Defendant's Motion for Substance of Promises or Plea Bargains Between Witnesses and Government, doc. 183.
B. Defendant's Motion to Suppress Cell Phone
In Defendant's Motion to Suppress Cell Phone, doc. 179, he asks the Court to suppress evidence obtained from an LG Model LGL84VL cell phone seized on August 9, 2018. Doc. 179 at 1. Initially, the Government opposed Defendant's Motion. Doc. 219. However, the Government has since filed a Notice of Joint Stipulation and Notice of Second Joint Stipulation. Docs. 245, 246. In the Notices of Joint Stipulations, the Government explains it does not intend to offer at trial any evidence regarding the August 9, 2019 discovery or seizure of the LG Model LGL84VL cell phone. Doc. 245 at 1-2; Doc. 246 at 1. Thus, the Government stated it had no opposition to the Court granting Defendant's Motion to Suppress Cell Phone. Doc. 245 at 1.
Accordingly, I RECOMMEND the Court GRANT as unopposed Defendant's Motion to Suppress Cell Phone. Doc. 179. To be clear, this recommendation should not be read as a ruling on whether Defendant's Fourth Amendment rights were violated. Instead, the cell phone is only excluded based on the Government's stipulations.
C. The Government's Motion for Reciprocal Discovery
The Government filed a Motion for Reciprocal Discovery, in which it seeks reciprocal discovery based on Federal Rule of Criminal Procedure 16(b)(1). Doc. 217. Defendant responded, stating he will comply with any reciprocal discovery as provided in the Federal Rules of Criminal Procedure. Doc. 237. However, at the hearing, Defendant's counsel explained while Defendant does not oppose the Government's Motion, it does not currently have any discovery to disclose. Nonetheless, Defendant's counsel reiterated Defendant does not oppose the Motion. Accordingly, I GRANT as unopposed the Government's Motion for Reciprocal Discovery. Doc. 217.
II. Defendant's Motion Requesting Additional Peremptory Challenges
Defendant moves for additional peremptory challenges under Federal Rule of Criminal Procedure 24(b). Doc. 181. Defendant argues because he is being tried jointly with other codefendants, the Court should grant him additional peremptory challenges to place him in the same position as if he were tried separately from his co-defendants. Id. at 2. The Government responded, stating the Motion is directed to the discretion of the trial court and, thus, the Government will neither oppose nor concur on the Motion. Doc. 216 at 7.
The Federal Rules of Criminal Procedure provide in a non-capital felony case the government is entitled to six peremptory challenges and the defendants are collectively entitled to ten. Fed. R. Crim. P. 24(b)(2). The court has discretion to allow additional challenges or to allow defendants to exercise their challenges separately or jointly. Id. Whether to grant additional peremptory challenges in a case involving multiple defendants is a matter left to the court's discretion. See United States v. Tucker, 526 F.2d 279, 283 (5th Cir. 1976); United States v. Bentley, 503 F.2d 957, 958 (5th Cir. 1974). The district court also has discretion over whether to require multiple defendants to exercise challenges separately or jointly. See United States v. Franklin, 471 F.2d 1299, 1300 (5th Cir. 1973); United States v. Williams, 447 F.2d 894, 896-97 (5th Cir. 1971), overruled on other grounds by United States v. Archer, 733 F.2d 354 (5th Cir. 1984).
At this time, Defendant has not provided compelling reasons as to why he should be granted additional peremptory challenges. Indeed, co-defendants who are tried jointly are routinely required to exercise their peremptory challenges jointly. Accordingly, I DENY Defendant's Motion Requesting Additional Peremptory Challenges. Doc. 181.
III. Defendant's Motion to Dismiss
Defendant also filed a Motion to Dismiss based on Federal Rule of Criminal Procedure 6(b)(2). Doc. 178. In his Motion, Defendant argues for dismissal based on Rule 6(b)(2) and for access to grand jury records. Specifically, Defendant contends the August 2020 grand jury proceedings, at which he was indicted on the current pending charges, were not properly conducted because the grand jury was not all present in the physical location during the proceedings. Doc. 178 at 1. Additionally, Defendant moves for access to grand jury records to determine how the proceedings were conducted.
Defendant does not challenge the total jurors meeting at the three courthouses constitute a lack of a quorum, an insufficient number of grand jurors voting to indict, or a violation of the grand jury's secrecy. Rather, Defendant argues because the jurors were not all physically present in a single space, a quorum may not have been formed. Doc. 178 at 1.
The Government filed a Response, opposing Defendant's Motion to Dismiss. Doc. 218. The Government argues Defendant's Motion should be denied because “uniform physical presence in the same room” is not required for grand jury proceedings and, moreover, the grand jury was conducted in accordance with the Court's Standing Order considering the COVID-19 pandemic. Id. at 5. Finally, the Government contends that even assuming some irregularity in the grand jury proceedings, it would amount to harmless error. Id.
The parties further addressed the Motion to Dismiss at the Court's April 12, 2021 hearing. There, Defendant's counsel confirmed and clarified that his Motion to Dismiss is based on the grand jury's failure to convene in person at a single location. Defendant contends Rule 6 requires physical presence and was violated by the grand jury convening at three different courthouses, joined by video teleconference. The Government responded by arguing there is no physical presence requirement and all the jurors convened at courthouses throughout this District using video teleconferencing technology. Further, the Government re-asserted its position that any violation of Rule 6 was harmless error and the case should not be dismissed on this basis.
The parties also filed a Notice of Joint Stipulations, in which the parties stipulate the August 2020 Grand Jury was conducted in accordance with the Court's In re: Corona Virus/COVID-19 Pandemic and the use of Grand Jury Telecommunication Facilities. Doc. 245 (citing 1:20-mc-11 (S.D. Ga. May 13, 2020)).
A. Factual Background
On August 5, 2020, a grand jury returned a 36-count indictment against Defendant. Doc. 3. Defendant was indicted on: one count of conspiracy to possess with intent to distribute and to distribute controlled substances, in violation of 21 U.S.C. § 846; two counts of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and 33 counts of use of a communication facility, in violation of 21 U.S.C. § 843(b). Id. The grand jury was conducted according to the Court's May 13, 2020 Standing Order in In re: Corona Virus/COVID-19 Pandemic and the use of Grand Jury Telecommunication Facilities, 1:20-mc-11 (S.D. Ga. May 13, 2020. Doc. 245 at 1.
The Court's Standing Order permitted grand jurors to convene at three courthouses located in this District-in Augusta, Brunswick, and Savannah-depending on the grand juror's residence. In re: Corona Virus/COVID-19 Pandemic and the use of Grand Jury Telecommunication Facilities, 1:20-mc-11 (S.D. Ga. May 13, 2020). At that time, the grand jurors in the Augusta, Brunswick, and Savannah courthouses participated in deliberations with one another using videoconferencing technology that allowed them to see and hear all witnesses. The grand jurors at each courthouse were “counted in establishing a quorum for that grand jury.” Id. Finally, Court Security Officers remained outside the courtrooms in which grand jurors convened to ensure no unauthorized person entered the deliberations and ensured the grand jury deliberated in secret. Id.
B. Defendant's Request for Grand Jury Records
Defendant requests access to the grand jury records to develop his argument regarding whether any irregularities occurred. Federal Rule of Criminal Procedure 6(e) codifies the traditional rule of grand jury secrecy and provides a comprehensive and exclusive framework for determining whether and under what conditions the records of grand jury proceedings may be released. Pitch v. United States, 953 F.3d 1226, 1229 (11th Cir. 2020). Rule 6(e)(3) provides of five “[exceptions” to this general rule of nondisclosure. Fed. R. Crim. P. 6(e)(3). Relevant to this case, the Rule provides a court may authorize disclosure “at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” Fed. R. Crim. P. 6(e)(3)(E)(ii). “In order to obtain grand jury testimony, a defendant must show a particularized need, sufficient to justify the revelation of generally secret grand jury proceedings.” Miller v. Wainwright, 798 F.2d 426 (11th Cir. 1986), vacated and remanded sub nom., Miller v. Dugger, 480 U.S. 901 (1987), reinstated, 820 F.2d 1135 (11th Cir. 1987); see also Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979) (“Parties seeking grand jury transcripts under Rule 6(e) must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.”).
The parties have now stipulated the grand jury proceedings were conducted in accordance with the Court's Standing Order. Doc. 245. The stipulation likely eliminates any need for Defendant's access to any grand jury proceeding records. Thus, Defendant's stated rationale for access to the grand jury records-determining whether the grand jury was physically present together-is no longer needed. See Doc. 178 at 1. Beyond this single stated rationale, Defendant has made no other argument as to why he needs access to the grand jury records. Accordingly, I DENY Defendant's request for access to the grand jury records, to the extent Defendant still seeks such access.
C. Defendant's Request for Dismissal of Indictment
1. Legal Standards.
In federal criminal prosecutions, the Constitution guarantees the right to an indictment by an unbiased grand jury. The Fifth Amendment provides no person shall be held to answer for a capital or otherwise infamous crime “unless on presentment or indictment of a Grand Jury” necessarily presupposes “an investigative body ‘acting independently of either prosecuting attorney or judge.'” United States v. Dionisio, 410 U.S. 1, 16 (1973) (quoting Stirone v. United States, 361 U.S. 212, 218 (1960)). The grand jury's historic role has been to serve as a “protective bulwark standing solidly between the ordinary citizen and the overzealous prosecutor.” United States v. Pabian, 704 F.2d 1533, 1535 (11h Cir. 1983) (quoting Dionisio, 410 U.S. at 17). The reality that grand jury proceedings are “secret, ex parte[, ] and largely under the control of the federal prosecutor, magnifies this concern.” Id. (quoting United States v. Serubo, 604 F.2d 807, 816 (3d Cir. 1979)). An indictment, regular on its face, carries with it a strong presumption of validity, and there is a strong presumption of regularity accorded to the deliberations and findings of grand juries. Ward v. United States, 694 F.2d 654, 658 (11th Cir. 1982); United States v. Molinares, 700 F.2d 647, 651 n.6 (11th Cir. 1983).
“Federal courts possess the power and duty to dismiss federal indictments obtained in violation of the Constitution or laws of the United States.” Pabian, 704 F.2d at 1536. Additionally, federal courts have a “supervisory power over the administration of justice to regulate the manner in which grand jury investigations are conducted.” Id. (quoting Serubo, 604 F.2d at 816).
2. Defendant has not shown any violation of Federal Rule of Criminal Procedure 6 or any other provision of law.
Defendant asserts the grand jury proceedings in this case violated Federal Rule of Criminal Procedure 6. It is undisputed that during the relevant grand jury sessions the grand jurors were physically present at three different federal courthouses in this District and were connected by video teleconferencing technology. During those sessions, the grand jurors were physically present inside courtrooms in those three courthouses, and the courtrooms were secured by Court Security Officers to prevent any unauthorized access or participation. Defendant contends these procedures were impermissible and require dismissal of the indictment.
The procedures at issue were adopted and defined in the Chief Judge's May 13, 2020 Standing Order, In re: Corona Virus/COVID-19 Pandemic and the use of Grand Jury Telecommunication Facilities, 1:20-mc-11 (S.D. Ga. May 13, 2020). The procedures were adopted to “protect the public health and the health of grand jurors, to reduce the size of gatherings otherwise essential to the administration of justice, and to reduce unnecessary travel.” The Court adopted these procedures in accordance with its supervisory powers related to grand jury proceedings. Indeed, Pabian makes clear courts have the authority to regulate how grand jury proceedings are conducted. 704 F.2d at 1536. Defendant, however, contends these procedures violated Rule 6 and were inconsistent with the Coronavirus Aid, Relief, and Economic Security Act, Pub. L116-136, § 15002(b), 134 Stat 281 (Mar. 27, 2020) (“CARES Act”).
Federal Rule of Criminal Procedure 6 governs grand jury proceedings and states in subsection (a): “When the public interest so requires, the court must order that one or more grand juries be summoned. A grand jury must have 16 to 23 members, and the court must order that enough legally qualified persons be summoned to meet this requirement.” Subsection (d) explains “Who May Be Present” while the grand jury is in session and during deliberations and voting. Fed. R. Crim. P. 6(d). Subsection (e) contains provisions related to recording and secrecy and subsection (f) describes how an indictment must be returned.
Rule 6 does not expressly address the physical location of grand jurors, whether they must all meet at the same location, or whether grand jurors may be connected by videoconferencing technology. No other Federal Rule of Criminal Procedure addresses these topics either. In other words, Rule 6-and the Federal Rules of Criminal Procedure, generally- are entirely silent on the location or locations where grand jurors are to convene. In fairness, subsection (d) of Rule 6 does describe who may be “present” while the grand jury is in session, deliberating, and voting. But a plain reading of that provision shows it is intended to dictate the categories of individuals (i.e., attorneys, witnesses, interpreters, etc.) who can observe and, potentially, participate in grand jury proceedings. So, while the word “present” is used in the heading for subsection (d), that provision does address where grand jurors must be located, or whether all grand jurors must be present at the same physical location. Because Rule 6 is silent on these topics, the procedures utilized could not violate Rule 6. Indeed, Defendant has not identified any express violation of the applicable rules.
Defendant argues the CARES Act shows the procedures utilized here were impermissible because that legislation authorized courts to conduct some proceedings by video and teleconference, but did not extend that authorization to grand jury proceedings. CARES Act, § 15002(b). The CARES Act authorized courts to conduct certain types of criminal proceedings by video teleconference, so long as various conditions were met. Id. § 15002(b). The types of criminal proceedings are listed out in the Act, along with corresponding statutes and Federal Rules of Criminal Procedure related to those proceedings. Id. For procedures addressed in the Federal Rules of Criminal Procedure, the CARES Act authorized the use of video teleconferencing for: initial appearances (Rule 5); preliminary hearings (Rule 5.1); waivers of indictment (Rule 7(b)); arraignments (Rule 10); felony pleas (Rule 11); probation and supervised release revocation proceedings (Rule 32.1); felony sentencing (Rule 32); appearances on arrests for failing to appear or violating conditions of release (Rule 40); misdemeanor pleas and sentencings (Rule 43(b)(2)).
To be clear, Chief Judge Hall did not rely on the CARES Act for authority when issuing the Standing Order on grand jury proceedings at issue.
The CARES Act authorizations related to video teleconferencing only apply during the “covered emergency period, ” which is a time period defined by certain events related to the COVID-19 pandemic. Additionally, depending on the type of proceeding, the CARES Act authorization is only effective upon certain findings of the Judicial Conference of the United States, the chiefjudge of the relevant district, or the presiding judge. Furthermore, where the CARES Act authorizes courts to conduct certain proceedings by video teleconferencing, it also authorizes the alternative use of telephone conferencing when video is not reasonably available. While these provisions of the CARES Act have had a significant impact on court operations during the covered emergency period, the provisions are not germane to the analysis of Defendant's challenge to the grand jury proceedings here.
Defendant argues the CARES Act's silence on grand jury proceedings shows that such procedures are not allowed. Defendant's argument is based on the assumption the drafters of the CARES Act performed a comprehensive review of all criminal proceedings contemplated in the Federal Rules of Criminal Procedures, then authorized courts to use video teleconferencing in proceedings where they were not previously allowed, and declined authorize the practice in all other proceedings. Defendant's argument fails for a few reasons.
First, the absence of any provision in the CARES Act related to Rule 6 provides no indication about what is or is not permitted under that duly enacted federal rule of procedure. Rather, the Court must consider the express language of the rule-as it has done above-and determine whether the procedures used violated the rule. Additionally, the fact that the CARES Act is silent on Rule 6 and grand jury procedures would only be significant if, as Defendant presumes, the drafters had taken a comprehensive view of all Federal Rules of Criminal Procedure and made a conscious decision to exclude Rule 6. Defendant has not pointed to any support for that presumption, and the Court is aware of none. Indeed, the CARES Act itself cuts against the that presumption. It is correct that some of the Rules and proceedings addressed in the CARES Act are silent on the use of video teleconferencing, like Rule 6. CARES Act, § 15002(b) (addressing proceedings under Rules 5.1, 7(b), 11, 32). But others expressly allow courts to conduct proceedings by video teleconference, even without the CARES Act authorizations. Id. (permitting video teleconferencing for initial appearances under Rule 5 (which has permitted video teleconferencing since 2002), arraignments under Rule 10 (same), and misdemeanor pleas and sentencings under Rule 43 (permitted since 2011)). And the Act was also entirely silent on other proceedings arising under the Rules, such as proceedings related to criminal forfeiture (Rule 32.2) and various proceedings related to petty offenses and other misdemeanors (Rule 58), but there is no indication the drafters left those proceedings out for any particular reason. Taken as a whole, the CARES Act authorizations provide no real guidance on what is or is not permitted by any specific Rule. Rather, the Act does only what it purports to do-ensure that the specific proceedings identified can be conducted by video teleconferencing during the relevant period. The Act provides no insight in the scope Rules that were not addressed, like Rule 6.
The CARES Act authorizations for these proceedings and Rules were likely unnecessary.
Finally, and most important, the criminal proceedings addressed in the CARES Act are all proceedings at which a defendant has a right to appear and, therefore, could consent to proceed by video or withhold consent. See id. at § 15002(b)(4) (requiring defendant's consent after consultation with counsel for proceedings via video teleconference). In contrast, a defendant has no right to appear at grand jury proceedings. Pabian, 704 F.2d at 1538-39 (“A target of a grand jury investigation has no constitutional right to appear before that grand jury.”) (citations omitted). A defendant's consent to the grand jury sessions using video teleconferencing are unnecessary and immaterial.
Defendant is not alone in observing that the CARES Act is silent on Rule 6 and grand jury procedures. Defendant points to a statement on the website of the Northern District of California, where that court explained it would not conduct grand jury proceedings by video teleconference in part because the CARES Act is silent on grand jury proceedings. Notice Regarding Grand Jury Proceedings, United States District Court, Northern District of California, https://www.cand.uscourts.gov/notices/notice-regarding-grand-jury-proceedings (last visited June 23, 2021). The statement on the court's website is far from a statement of law-it is unclear who issued the statement and it lacks any legal analysis. And the statement merely states the court is declining to conduct grand jury proceedings by video teleconference because the CARES Act is silent on the issue; the statement does not conclude that any use of video teleconferencing in the course of grand jury proceedings is prohibited under Rule 6.
The relevant portion of the statement reads:
While many types of hearings may be held remotely, federal grand jury proceedings cannot be conducted remotely or virtually. Under the CARES Act, enacted by Congress in response to the COVID-19 public health emergency, district courts are temporarily permitted to conduct certain enumerated criminal proceedings via teleconference and videoconference. However, these limited proceedings do not include grand jury proceedings.The statement goes on to explain that the United States District Court for the Northern District of California would proceed with conducting in-person grand jury proceedings, but would relocate the proceedings to “larger facilities, ” reduce the volume and length of the proceedings, allow greater social distancing, and institute other safety protocols.
The statement on the Northern District of California's website highlights a potentially important distinction: the difference between fully remote grand jury proceedings and limited use of video teleconferencing in the course of grand jury proceedings. A fully remote proceeding would be one where few if any of the participants in the proceedings are physically present on court property or in the same location. In terms of grand jury proceedings, that could mean grand jurors (and prosecutors and witnesses) would participate in the proceedings from home, or work, or even a coffee shop via their personal electronic devices. In contrast, limited use of video teleconferencing in the course of grand jury proceedings could look like the procedures utilized here-grand jurors, prosecutors, and witnesses all physically present at federal courthouses in secured courtrooms, linked by video teleconferencing. The distinction is important for assessing whether a violation occurred, given the provisions in Rule 6 regarding who may participate in grand jury proceedings and the requirement that such proceedings remain secret.
One court recently considered the CARES Act's silence on grand jury proceedings in a slightly different context. See United States v. Kane, Case No. MJ20-5054, 2020 WL 6434792, at *6 (W.D. Wash. June 9, 2020), report and recommendation adopted, 2020 WL 4784963 (W.D. Wash. Aug. 18, 2020). In Kane, the defendant asserted a speedy trial violation based on the long delay in the government obtaining an indictment against him, which was due to the court's curtailment of grand jury proceedings because of the COVID-19 pandemic. The defendant argued grand jury proceedings were not infeasible because the court could convene a grand jury “in the same manner as the Court has been conducting preliminary hearings.” Id. Defendant proposed grand jurors could convene remotely, utilizing a Web-Ex videoconferencing technology. Id. The court rejected the argument stating “the CARES Act includes no provision to permit grand jury proceedings to be conducted remotely” and emphasized grand jury proceedings are “are distinguishable from preliminary hearings by their secrecy, which is strictly guarded by the Federal Rules of Criminal Procedure.” Id.
The decision in Kane demonstrates the importance of the distinction explained above. Fully remote grand jury proceedings present serious potential problems and could violate Rule 6 provisions related to secrecy and participation. Absent an express legislative authorization to conduct fully remote grand proceedings, similar to the authorizations in the CARES Act, such practices might be impermissible. But that is not what occurred here. For this grand jury, the jurors convened at federal courthouses in courtrooms guarded by court security officers to ensure no unauthorized persons participated and that the proceedings remained secret. This ensured the participation and secrecy provisions in Rule 6 were satisfied. This procedure obviates the concerns raised by Kane. Indeed, Defendant has not suggested the secrecy provision in Rule 6 were violated in any way or that any person improperly participated in the proceedings.
I emphasize “might” be impermissible. These circumstances are not before the Court and I have no occasion to address them here.
Put simply, the procedure utilized to conduct grand jury proceedings in this case did not violate Rule 6, and the CARES Act does not suggest otherwise. Grand jury proceedings are accorded a presumption of regularity, and finding a violation based on a rule's silence on a particular practice would run contrary to that principle. United States v. Johnson 319 U.S. 503, 512-13 (1943); United States v. R. Enterprises, Inc., 498 U.S. 292, 300-01 (1991) (citing United States v. Mechanik, 475 U.S. 66, 75 (1986) (O'Connor, J., concurring in judgment)); United States v. Molinares, 700 F.2d 647, 652 n.6 (11th Cir. 1983) (citing cases).
3. Any error was harmless.
Further, for non-constitutional error prior to the conclusion of a trial, “dismissal of the indictment is appropriate only if it is established that the violation substantially influenced the grand jury's decision to indict, or if there is ‘grave doubt' that the decision to indict was free from the substantial influence of such violations.” Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988). Here, even assuming the grand jury convened in violation of the Federal Rules, Defendant's argument still fails. Defendant has not established the grand jury's deliberations were substantially influenced by the procedures utilized by the Court. While Defendant argues a grand jury proceedings created some irregularity in the grand jury process, his argument is conclusory and fails to demonstrate any sort of prejudice.
A defendant's challenge to an indictment based on an alleged procedural error before the grand jury is reviewed under the harmless error standard. Mechanik, 475 U.S. at 71. Here, when the undersigned questioned Defendant's counsel as to any articulable harm Defendant suffered because of the grand jury proceedings, counsel acknowledged no discernible harm had occurred at this point. Thus, even assuming the grand jury procedures violated the Federal Rules of Criminal Procedure, any error is harmless, and Defendant's indictment should not be dismissed.
Even if Defendant is arguing his Fifth Amendment rights were violated by the procedures utilized here, his argument would fail. In Pabian, the Eleventh Circuit Court of Appeals noted, “[P]rejudice must be shown when dismissal is based on violations of the Constitution.” 704 F.2d at 1540. Again, Defendant has not pointed to any prejudice. Thus, the grand jury's failure to convene entirely in person at a single location does not require the harsh sanction of dismissal, even if his Fifth Amendment rights were violated. See, e.g., United States v. Schmitz, No. 08-P-14, 2008 WL 11340277, at *2 (N.D. Ala. May 20, 2008) (explaining dismissing a grand jury indictment for constitutional error “only where the structural protections of the Constitution have been so compromised as to render the proceedings fundamentally unfair”); see also Pabian, 704 F.2d at 1539-40 (describing dismissal of an indictment as an “extreme sanction which should be infrequently utilized”).
Accordingly, I RECOMMEND the Court DENY Defendant's Motion to Dismiss. Doc. 178.
IV. Defendant's Motion to Suppress Real Property Search
Defendant moves to suppress the search of his real property at 344 and 348 Mount Galilee Church Road in Jacksonville, Georgia. Doc. 180. Defendant argues the search of the property should be suppressed because the warrant application failed to establish probable cause. Id. at 1. Additionally, Defendant contends the warrant does not identify the items to be seized with enough particularity to satisfy the Fourth Amendment, and that the description of the items to be seized is overly broad. Id.
Before addressing each of Defendant's arguments, it is important to note that “[s]earch warrants are presumed to be validly issued.” See United States v. Bushay, 859 F.Supp.2d 1335, 1377 (N.D.Ga. 2012) (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)). Where a defendant seeks suppression of evidence seized during a search conducted pursuant to a warrant, the defendant has the burden of establishing that the warrant was defective. Id. (citing United States v. Van Horn, 789 F.2d 1492, 1500 (11th Cir. 1986); United States v. Marx, 635 F.2d 436, 441 (5th Cir. 1981); United States v. Osborne, 630 F.2d 374, 377 (5th Cir. 1980)); United States v. Norris, No. 1:05-CR-479, 2006 WL 8425336, at *7 (N.D.Ga. May 18, 2006), report and recommendation adopted, 2007 WL 9657874 (N.D.Ga. Sept. 18, 2007) (citing Franks, 438 U.S. at 171; Van Horn, 789 F.2d at 1500; and Marx, 635 F.2d at 441).
A. Probable Cause
“The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “Probable cause exists when ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.'” United States v. Grubbs, 547 U.S. 90, 95 (2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). “Probable cause to search a residence requires some nexus between the premises and the alleged crime.” United States v. Joseph, 709 F.3d 1082, 1100 (11th Cir. 2013) (internal citation omitted). “Probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts” and is based on the “totality of the circumstances test.” Id. (internal citations and punctuation omitted).
Under the standard established in Illinois v. Gates, 462 U.S. 213 (1983), “[T]he task of a judge issuing a search warrant is to determine if a warrant sufficiently describes the place to be searched, enabling the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that other premises might be mistakenly searched.” United States v. White, 356 F.3d 865, 868-69 (8th Cir. 2004) (citing United States v. Nichols, 344 F.3d 793, 797 (8th Cir. 2003)). “The duty of a reviewing court is simply to ensure the judge had a substantial basis for concluding that probable cause existed.” Id. at 869 (citing Gates, 462 U.S. at 238-39). “Courts are to interpret affidavits in a nontechnical, common-sense fashion, and the [judge's] determination of probable cause is entitled to great deference.” Id. (alteration in original) (citing United States v. Arenal, 768 F.2d 263, 266 (8th Cir. 1985)).
“A reviewing court's task is not to make a de novo finding of probable cause but rather to decide whether the issuing magistrate-whose assessment of the affidavit's factual presentation is entitled to ‘great deference'-had a ‘substantial basis' for finding probable cause.” United States v. Rangel, CR417-218, 2018 WL 817845, at * 6 (S.D. Ga. Jan. 18, 2018) (quoting Gates, 462 U.S. at 236, 238-39); see also United States v. Leon, 468 U.S. 897, 914 (1984) (“Reasonable minds frequently may differ on the question of whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according ‘great deference' to a magistrate's determination.”) (citations omitted). In even “doubtful or marginal cases, ” the probable cause determination should be upheld. Rangel, 2018 WL 817845, at * 6 (quoting United States v. Scott, 555 F.2d 522, 527 (5th Cir. 1977)) (internal quotation marks omitted).
Law enforcement applied for and received a search warrant for 344 and 348 Mount Galilee Church Road in Jacksonville, Georgia on August 8, 2018, and executed the two search warrants on August 9, 2018. As a result of the search, law enforcement recovered firearms, ammunition, and measuring cups containing cocaine residue. Defendant argues the warrant and affidavit failed to establish probable cause because the affidavit “reveals no connection between the premises and alleged [criminal activity].” Doc. 178 at 2-3. That is, the affidavit failed to establish a connection between the property and any alleged criminal activity, and thus, the evidence seized should be suppressed. Id. at 3.
The Government asserts the warrant application was sufficient under the probable cause standard. Doc. 180. Specifically, the Government points to the affidavit detailing conversations relating to the distribution of controlled substances, law enforcement observing Defendant traveling to and from the properties in conjunction with those conversations, and Defendant directing a Co-defendant to retrieve controlled substances located at 348 Mount Galilee Church Road. Id. at 6.
The affidavit contains detailed descriptions of intercepted communications where Defendant directed others to buy drugs from him at the subject properties. See Doc. 220 at 8-25. The affidavit also includes an unsuccessful search following one such conversation, where law enforcement pulled over and searched a purported buyer but did not recover any evidence. Id. at 25-26. While Defendant argued at the hearing this undercut the strength of the warrant's application, also included in the warrant is a conversation following that unsuccessful search where Defendant indicates he was glad the buyer did not get caught. Id. at 27. Thus, the unsuccessful interception by law enforcement actually supports probable cause because the subsequent conversation indicates drugs were likely present, but law enforcement simply failed to find the contraband.
Additionally, law enforcement intercepted conversations where Defendant discussed delivering what the affiant believed to be drugs to an unknown male. Id. at 31. The affiant then observed Defendant traveling to both 344 and 348 Mount Galilee Church Road before driving to the unknown male to deliver what the affiant believed to be drugs. Id. Further, there is ample information in the warrant application showing Defendant owned the properties at issue. From the ownership of the property, the conversations intercepted, and the affiant's observations of Defendant, the affiant drew the inference Defendant was storing and selling drugs on his property. In light of the evidence available to law enforcement, this was a reasonable inference. United States v. Murdock, No. CR410-160, 2010 WL 5538514, at *6 (S.D. Ga. Dec. 17, 2010), report and recommendation adopted with modification 2011 WL 43503 (S.D. Ga. Jan. 6, 2011) finding it reasonable for officers to draw inferences about the storage of drugs based on Defendant's conversations and other circumstantial evidence).
The task of a court reviewing the validity of a search warrant is not to make a de novo determination of probable cause but rather to evaluate whether the issuing magistrate judge had a substantial basis for finding probable cause. Probable cause to search a residence requires some nexus between the premises and the alleged crime. United States v. Bradley, 644 F.3d 1213, 1264 (11th Cir. 2011). Here, the affidavit and warrant application furnished the state judge with sufficient information to support that nexus and consequently, a finding of probable cause as to 344 and 348 Mount Galilee Church Road.
B. Particularity
Defendant also argues the list of items to be seize is an “overly broad and boiler-plat[e] list of items, ” and was the “equivalent of authorizing a general exploratory search.” Doc. 180 at 1. The Government contends the description conforms with the Fourth Amendment's requirements. Doc. 220 at 7-8.
General warrants do not satisfy the Fourth Amendment requirement the warrant contain a description of the place to be searched and the persons or things to be seized. Dalia v. United States, 441 U.S. 238, 255 (1979). The particularity requirement protects persons against indiscriminate rummaging through their property by government agents. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). “A description in a warrant is sufficiently particular ‘when it enables the searcher reasonably to ascertain and identify the things to be seized.'” United States v. Zhu, 555 F.Supp.2d 1375, 1381 (S.D. Ga. 2008) (quoting United States v. Santarelli, 778 F.2d 609, 614 (11th Cir. 1985); and United States v. Betancourt, 734 F.2d 750, 754-55 (11th Cir. 1984)). When warrants specifically connect the items to be searched for and seized to the specific criminal conduct suspected, it weighs in favor of finding that the warrants are adequately particularized. Id. (citing United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) (finding overly broad warrant which authorized seizure of virtually every document and computer file could have been made more particular by specifying suspected criminal conduct). “The Eleventh Circuit has clarified that ‘[i]t is universally recognized that the particularity requirement must be applied with a practical margin of flexibility, depending on the type of property to be seized, and that a description of property will be acceptable if it is as specific as the circumstances and nature of activity under investigation permit.'” United States v. Rocher, No. 217CR107, 2018 WL 1071892, at *3 (M.D. Fla. Feb. 26, 2018) (quoting United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982)). “A search warrant must indeed be sufficiently precise as not to permit a general search, but the test is the reasonableness of the description. Elaborate specificity is unnecessary.” Id. (citing United States v. Strauss, 678 F.2d 886, 892 (11th Cir. 1982); United States v. Burke, 784 F.2d 1090, 1092 (11th Cir. 1986) (stating a warrant “need only describe the place to be searched with sufficient particularity to direct the searcher, to confine his examination to the place described, and to advise those being searched of his authority.”).
“When the Government conducts a search pursuant to a warrant that does not particularly describe the things to be seized, the appropriate remedy is for the court to exclude from evidence in a later criminal action the items improperly taken.” United States v. Cook, 657 F.2d 730, 735 (5th Cir. 1981). And where the warrant provides a constitutionally sufficient description of some, but not all of the things to be seized, the court should typically “sever the portion of the search warrant from so much of the warrant as passes constitutional muster” and not suppress properly seized evidence. Id.; United States v. Derbouze, No. 14-20159-CR, 2014 WL 2918670, at *6 (S.D. Fla. June 26, 2014), aff'd (Sept. 4, 2015) (concluding items seized were not seized under provisions of the warrant challenged as overly broad, and, therefore, there was no basis to suppress those items).
The challenged portion of the warrant in this case describes the items to be seized as:
[C]ellular telephones[] to include but not limited to the cellular phone with telephone number 229-35-0004 “TARGET TELEPHONE 7”, and their contents, records, ledgers and other writings, notes or memoranda which record the actual or intended receipt or distribution of drugs, and telephone/address books, papers and other writings, reflecting names, addresses and or telephone numbers, packaging material, U.S Currency, paid receipts which may reveal the identities of known and unknown conspirators. Drugs to include but not limited to methamphetamine ice, powder cocaine[, ] and/or crack cocaine.Doc. 220 at 14-15, 37-38, 42-43. The warrant directs the executing officers to search the premise and seize the property, as described. Id. at 39, 45. Defendant argues the items described in the warrant are so broad it was the equivalent of a warrant authorizing a general exploratory search. Doc. 180 at 4. Conversely, the Government asserts the description of items to be seized in the warrants is sufficient. Doc. 220 at 8.
The warrants in this case enabled law enforcement officers conducting the search to reasonably ascertain and identify the things to be seized. The operative language in the warrant states officers are to search for and seize a cellphone identified by telephone number, suspected drugs, including methamphetamine ice, powder cocaine and/or crack cocaine, and various instruments used to record the receipt or distribution of drugs. Applying the practical margin of flexibility as I must, I find this operative language specifically connects the items that were to be searched for and seized (e.g., drugs and articles and instrumentalities used in drug trafficking) to the specific criminal conduct suspected (e.g., drug trafficking). See United States v. Smith, 918 F.2d 1501, 1507-08 (11th Cir. 1990) (holding language describing “cocaine, documents, letters, photographs, business records, and other evidence relating to narcotics trafficking” was directed to materials having a nexus to narcotics trafficking and meets “the standards of practical accuracy that enable the searcher to ascertain and identify things authorized to be seized”).
Defendant cites no controlling authority in support of his argument the warrant the language utilized was unconstitutionally vague. Moreover, the Eleventh Circuit has approved “all drug-related items” warrants and the seizure of firearms in the execution of those warrants. See United States v. Prather, 279 Fed.Appx. 761, 766 (11th Cir. 2008) (“The warrants were broad with respect to their inclusion of all drug-related items; however, because the police had probable cause to believe drug dealing was occurring at the locations being searched, the scope of the warrants appropriately matched the scope of police suspicion . . . . Although neither warrant specifically authorized the seizure of weapons, the police did not err in confiscating weapons when they found them. When law enforcement officers stumble across hidden guns during a lawful search for drugs, they are allowed to draw the reasonable inference that the guns may be related to drug trafficking occurring at the location.”).
The description of items to be searched for and seized in the warrant at issue in this case was sufficiently particular, and no evidence should be suppressed based on Defendant's challenges to the description of items in the warrant.
C. Good Faith Exception
The Government argues even if the warrant application or warrants themselves were invalid, the good faith exception applies. Doc. 220 at 8-9. Defendant did not address the Government's good-faith exception argument.
Even if the warrant lacked probable cause and was not sufficiently particular, the officers who executed the search were still entitled to rely on the signed warrant in conducting the searches of Defendant's property. As a result, the evidence seized during the search should not be suppressed. Courts generally should not render inadmissible evidence obtained by police officers acting in reasonable reliance upon a search warrant that is ultimately found to be unsupported by probable cause. United States v. Leon, 468 U.S. 897, 922 (1984). Indeed, under Leon, evidence seized in an illegal search is still admissible if the evidence was “seized by officers relying on a warrant issued by a detached and neutral magistrate.” Id. at 913.
The Leon good-faith exception to the exclusionary rule applies in all but four limited sets of circumstances. Id. at 923. “The four sets of circumstances are . . . . (1) where the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) ‘where the issuing magistrate wholly abandoned his judicial role . . .; (3) where the affidavit supporting the warrant is ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where, depending upon the circumstances of the particular case, a warrant is so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid.” United States v. Martin, 297 F.3d 1308, 1313 (11th Cir. 2002) (internal citations and quotations omitted).
The Government contends, even if the warrant and search were not supported by probable case and the warrant was not sufficiently particular regarding the items to be seized, the evidence seized during the search should not be excluded due to the Leon good-faith exception, and none of the circumstances that would prevent application of the Leon good-faith exception are present here. Defendant does not present any opposition to the Government's Leon goodfaith exception argument. Moreover, based on the Court's review of the entire record, the goodfaith exception plainly applies here, and none of the four circumstances that would justify not applying the exception are present. Thus, even if probable cause were not established within the four corners, the officers conducting the search in this case reasonably relied on the warrant under the Leon good-faith exception, and the evidence should not be excluded.
Accordingly, I RECOMMEND the Court DENY Defendant's Motion to Suppress Search of Real Property. Doc. 180.
V. Defendant's Motion to Suppress Electronic Surveillance
Defendant also moves to suppress intercepted wire or oral communications obtained as a result of wiretaps utilized during this case on Target Telephone 7 (“TT7”). Doc. 184. Defendant initially argued evidence obtained from the wiretap authorizations should be suppressed because the wiretap applications did not meet the necessity requirements, there was insufficient probable cause to support the issuance of the warrant, and agents failed to adequately minimize interceptions. Id. at 4-10.
The Government opposes Defendant's Motion. Doc. 221. Specifically, the Government contends the affidavit demonstrates adequate probable cause and necessity, and the interceptions were appropriately minimized. Id. at 4. Further, the Government asserts, even if the wiretap should not have been authorized, the good-faith exception applies and, therefore, the evidence should not be suppressed.
At the hearing, Defendant withdrew his challenges to the wiretap other than his challenge to the necessity of the wiretap. However, along with necessity, the parties continue to dispute whether Defendant has standing to challenge the wiretap.
A. Background
On June 14, 2018, the Honorable Lisa Godbey Wood authorized a wiretap permitting the Government to record communications to and from TT7, bearing a number ending in -0005The June 14, 2018 wiretap was supported by a 59-page affidavit by Task Force Officer Elizabeth Strickland of the Drug Enforcement Administration (“TFO Strickland”). Govt's Ex. 1A-2, Aff. in Supp. of Appl. for Interception of Communications (June 14, 2018).
An order authorizing the continued surveillance of TT7 was issued on July 12, 2018, but Defendant does not appear to challenge that continued authorization.
In her affidavit, TFO Strickland described a drug-distribution network in Telfair County, Georgia, involving several individuals, including Defendant. Id. at 5-10. TFO Strickland described the investigation of this network, including law enforcement's use of confidential human sources, drug purchases made by the sources, recordings made by the sources, and other information obtained from the sources. Id. at 14-25. TFO Strickland further described the use of cellular phones by participants in the distribution network, including Defendant's use of cellular phones and the use of TT7 in the distribution network. Id. at 10-12. TFO Strickland described surveillance conducted by law enforcement, analysis of telephone records for TT7, the need for a wiretap, and a detailed description of other investigative techniques that were tried or considered during the investigation. Id. at 25-54. TFO Strickland requested geo-location data on TT7, in addition to a wiretap, in order to “identify locations used by the targets of the investigation to facilitate their illegal drug activities.” Id. at 54. Finally, TFO Strickland explained the efforts law enforcement would take to minimize the extent of wire interceptions. Id. at 56-58. The affidavit also included several pages in TFO Strickland described other investigatory measures that were used, or considered and rejected, and why a Title III wiretap was necessary to obtain information in the case. Id. at 42-53. In sum, TFO Strickland set forth detailed facts demonstrating Defendant was using TT7 in furtherance of a drug-distribution scheme, alternative investigative methods had been used or would be futile, and a wiretap of TT7 was an effective means of acquiring information about the drug distribution network.
B. Legal Standard
Title III of The Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, sets forth numerous requirements the government must meet before electronic surveillance (wiretaps) may be authorized.” United States v. Flores, No. 1:05-CR-558, 2007 WL 2904109, at *21 (N.D.Ga. Sept. 27, 2007). Under 18 U.S.C. § 2518, a wiretap application must include:
“Under Georgia law, wiretap orders may be issued ‘upon written application, under oath, of the prosecuting attorney having jurisdiction over the prosecution of the crime under investigation, or the Attorney General, made before a judge of superior court,' and the wiretap must be consistent with ‘Chapter 119 of Title 18 of the United States Code Annotated, as amended.'” United States v. Cordero, No. 1:11-CR-00009, 2011 U.S. Dist. LEXIS 157435 at *27 (N.D.Ga. Aug. 29, 2011) (quoting O.C.G.A. § 16-11-64(c)), report and recommendation adopted, 2011 U.S. Dist. LEXIS 151967 (N.D.Ga. Sept. 13, 2011). “Chapter 119 of Title 18 of the United States Code addresses wiretaps in 18 U.S.C. § 2518, making Georgia's wiretap requirements co-extensive with federal law.” Id.
a full and complete statement of the facts and circumstances relied upon by the applicant . . . including details as to the particular offense . . ., a particular description of . . . the type of communications sought to be intercepted, the identity of the person . . .whose communications are to be intercepted, and 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.United States v. Gonzalez Perez, 283 Fed.Appx. 716, 720 (11th Cir. 2008) (alterations in original) (internal marks omitted) (quoting 18 U.S.C. § 2518(1)(b), (c)).
Upon a proper application, a district judge may issue an ex parte order authorizing the interception of wire communications if the judge finds probable cause to believe an individual is committing or has committed a qualifying offense; particular communications concerning that offense will be obtained through such interception; and the facilities from which, or the place where, the communications are to be intercepted are being used in connection with the offense, or are leased to, listed in the name of, or commonly used by such person. United States v. Duarte-Rosales, No. 1:05-CR-197-6, 2008 WL 140665, at *2 (N.D.Ga. Jan. 11, 2008) (citing 18 U.S.C. § 2518(3)(a), (b), (d)); see also United States v. Robles, 283 Fed.Appx. 726, 734-35 (11th Cir. 2008).
In reviewing challenges to Title III intercepts, the Court is mindful “wiretapping is particularly appropriate when the telephone is routinely relied on to conduct the criminal enterprise under investigation.” United States v. Bourassa, No. 4:18-CR-3, 2019 WL 7559293, at *4 (N.D.Ga. July 25, 2019) (quoting United States v. Stokes, No. 96 CR 481, 1996 WL 727400, at *5 (S.D.N.Y. Dec. 18, 1996). Moreover, “a wiretap order is presumed to be valid, and a defendant has the burden of overcoming the presumption and of proving that the wiretap order was unlawfully obtained.” Flores, 2007 WL 2904109, at *22.
C. Standing
Defendant asserts he has standing to challenge the wiretap because he was the target of the wiretap efforts. Doc. 184 at 3. On the other hand, the Government contends Defendant has failed to establish standing to challenge the wiretap. Doc. 221 at 6. Specifically, the Government argues Defendant has not filed an affidavit or made a showing of how he was “aggrieved.” Thus, according to the Government, Defendant must provide sworn testimony demonstrating a legitimate expectation of privacy in order to challenge the wiretap. Id.
To have standing to contest the admissibility of the information obtained from the Government's wiretaps, the challenging party must be an “aggrieved person” within the meaning of 18 U.S.C. § 2518(10)(a). An “aggrieved person” is defined by statute as “a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” 18 U.S.C. § 2510(11). A defendant bears the burden of showing he has standing to challenge the intercepted information. Flores, 2007 WL 2904109 at *2.
Defendant contends-and the wiretap application and affidavit demonstrate-he was an enumerated target of the TT7 wiretap, and, therefore, was “a person against whom the interception was directed.” Gov't's Ex. 1A-2, Aff. in Supp. of App. for Interception of Communications (June 14, 2018). Defendant, therefore, has standing to challenge the validity of information obtained from the TT7 wiretap. Because the affidavit itself demonstrates Defendant was an aggrieved person, the Court declines to address the Government's argument that Defendant was required to provide additional sworn testimony showing he was an aggrieved person.
D. Necessity
Defendant argues the application for the wiretap and accompanying affidavit do not show traditional law enforcement methods were unavailable to meet the necessity requirement. Doc. 184 at 10. The Government asserts the affidavit and application were sufficient to show the necessity of the wiretap, and the affiant adequately explained the failure of ordinary investigative techniques. Doc. 221 at 11.
The burden of establishing necessity is “not great.” United States v. Acosta, 807 F.Supp.2d 1154, 1239 (N.D.Ga. 2011) (quoting United States v. Gray, 410 F.3d 338, 343 (7th Cir. 2005)). The Eleventh Circuit has noted:
The necessity requirement is designed to ensure that electronic surveillance is neither routinely employed nor used when less intrusive techniques will succeed . . . . The affidavit need not, however, show a comprehensive exhaustion of all
possible techniques, but must simply explain the retroactive or prospective failure of several investigative techniques that reasonably suggest themselves.United States v. Van Horn, 789 F.2d 1492, 1495-96 (11th Cir. 1986). The Government's showing of necessity “must be read in a ‘practical and commonsense fashion, '” and the district court is entitled to “broad discretion” in making its assessment of necessity. United States v. Alonso, 740 F.2d 862, 868 (11th Cir. 1984). An order authorizing a wiretap “will not be overturned ‘simply because defense lawyers are able to suggest post factum some investigative technique that might have been used and was not.'” Id. at 869 (quoting United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978)).
The June 24, 2018 affidavit in support of the TT7 wiretap application demonstrates TFO Strickland considered (and at times implemented) a multitude of additional investigative methods and rejected them all as insufficient to fully achieve the goals of the investigation. Gov't's Ex. 1A-2 at 41-54. Specifically, in the affidavit in support of TT7, TFO Strickland explained the Government had employed confidential informants and recorded conversations to aid in their investigation, but these sources were unable to provide information about all levels of the drug trafficking network, including the identity of possible co-conspirators. Id. at 42-43. Likewise, the Government employed physical surveillance, but that surveillance would not provide information on the “inner workings” of the drug trafficking information and, because of the way Defendant allegedly trafficked drugs, physical surveillance was of limited used. Id. at 46-48. TFO Strickland asserted the Government did not employ undercover agents, conduct interviews of subjects or their associates, or trash searches because the undercover officers would be put at significant risk and would be unlikely to penetrate deeply into the organization, and the use of warrants or searches would be more likely to alert the organization to the existence of a federal investigation than to produce significant evidence. Id. at 43-50. The investigators conducted some interviews of confidential informants, obtained pen registers on TT7, installed a vehicle tracker, and employed a pole camera video surveillance system. While helpful, none of these other investigative techniques provided information about the full workings of the target network. Id. at 53-50, 53. Finally, TFO Strickland stated, because the target network did not use the United States Postal Service or traditional banks, mail covers had not been employed and a financial investigation was unlikely to provide much information. Id. at 52-53. The affidavit shows investigators employed several traditional investigative techniques achieving limited results and rejected several others as insufficient for their needs. Accordingly, the affidavit in support of TT7 application adequately illustrates the necessity of a wiretap to support the Government's investigation.
A wiretap may be utilized to determine the contours and dimensions of an otherwise impenetrable conspiracy, even where investigators have used conventional methods with limited success. United States v. De La Cruz Suarez, 601 F.3d 1202, 1214 (11th Cir. 2010) (upholding wiretap where investigators had already uncovered substantial evidence using pen registers, physical surveillance, and five confidential informants, given that agents could use wiretaps to “determine the scope of the conspiracy and all of its members” and further surveillance would increase the likelihood of discovery and searches would tip off coconspirators). A wiretap is deemed necessary if traditional methods of investigation fail to disclose “the full extent of [the defendant's] criminal activities and his coconspirators.” United States v. Perez, 661 F.3d 568, 582 (11th Cir. 2011) (upholding a district court's denial of a defendant's motion to suppress information obtained from a wiretap where the government had obtained evidence from confidential informants, but such evidence was not sufficient to disclose the full extent of the defendant's criminal activities.).
The affidavit provides a detailed description of law enforcement's use of conventional investigative techniques (those reasonably appropriate under the circumstances), which had failed to furnish sufficient evidence to dismantle the drug trafficking organization and successfully prosecute each of its members, and explained other methods were unnecessarily risky. Therefore, by way of TFO Strickland's the affidavit, the Government sufficiently demonstrated the necessity of the wiretap. The issuing judicial officer, therefore, properly concluded the Government had shown a sufficient “necessity” for the wiretap.
For the reasons set forth above, I find Defendant has no basis to suppress the evidence intercepted by the wiretap of TT7, and, therefore, I RECOMMEND the Court DENY Defendant's Motion to Suppress Electronic Surveillance. Doc. 184.
CONCLUSION
For the reasons stated above, I GRANT as unopposed:
1. Defendant's Motion for Rule 807 Residual Exception Disclosure, doc. 174;
2. Defendant's Motion for Information Regarding Bad Prior Acts, doc. 175;
3. Defendant's Motion for Notice by the Government of the Intention to Use Evidence, doc. 176;
4. Defendant's Motion for Co-conspirator's Hearsay Exceptions, doc. 177;
5. Defendant's Motion to Preserve Evidence, doc. 182;
6. Defendant's Motion for Substance of Promises or Plea Bargains Between Witnesses and Government, doc. 183; and
7. Government's Motion for Reciprocal Discovery, doc. 217.
I DENY:
8. Defendant's Motion Requesting Additional Peremptory Challenges, doc. 181.
I RECOMMEND the Court GRANT as unopposed:
9. Defendant's Motion to Suppress Cell Phone, doc. 179.
Additionally, I RECOMMEND the Court DENY:
10. Defendant's Motion to Dismiss, doc. 178;
11. Defendant's Motion to Suppress Search of Real Property, doc. 180; and
12. Defendant's Motion to Suppress Electronic Surveillance, doc. 184.
Any objections to this Report and Recommendation shall be filed within 14 days of today's date. Objections shall be specific and in writing. Failure to file timely, written objections will bar any later challenge or review of the Magistrate Judge's factual findings and legal conclusions. 28 U.S.C. § 636(b)(1)(C); Harrigan v. Metro Dade Police Dep't Station #4, 977 F.3d 1185, 1192-93 (11th Cir. 2020). To be clear, a party waives all rights to challenge the Magistrate Judge's factual findings and legal conclusions on appeal by failing to file timely, written objections. Harrigan, 977 F.3d at 1192-93; 11th Cir. R. 3-1. A copy of the objections must be served upon all other parties to the action.
Upon receipt of Objections meeting the specificity requirement set out above, a United States District Judge will make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not meeting the specificity requirement set out above will not be considered by a District Judge. A party may not appeal a Magistrate Judge's report and recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a District Judge.
SO ORDERED, REPORTED and RECOMMENDED.