615 F.3d 544 (D.C. Cir. 2010), 08-3030, United States v. Maynard

Docket Nº:08-3030, 08-3034.
Citation:615 F.3d 544
Opinion Judge:GINSBURG, Circuit Judge:
Party Name:UNITED STATES of America, Appellee v. Lawrence MAYNARD, Appellant.
Attorney:Sicilia C. Englert and Stephen C. Leckar, appointed by the court, argued the causes for appellants. With them on the briefs was Michael E. Lawlor. David L. Sobel, Daniel I. Prywes, and Arthur B. Spitzer were on the brief for amici curiae American Civil Liberties Union of the National Capital Area...
Judge Panel:Before: GINSBURG, TATEL and GRIFFITH, Circuit Judges.
Case Date:August 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 544

615 F.3d 544 (D.C. Cir. 2010)

UNITED STATES of America, Appellee


Lawrence MAYNARD, Appellant.

Nos. 08-3030, 08-3034.

United States Court of Appeals, District of Columbia Circuit.

August 6, 2010

Argued Nov. 17, 2009.

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Appeals from the United States District Court for the District of Columbia (No. 1:05-cr-00386-ESH-10).

Sicilia C. Englert and Stephen C. Leckar, appointed by the court, argued the causes for appellants. With them on the briefs was Michael E. Lawlor.

David L. Sobel, Daniel I. Prywes, and Arthur B. Spitzer were on the brief for amici curiae American Civil Liberties Union of the National Capital Area and Electronic Frontier Foundation in support of appellant Jones.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roy W. McLeese III, John V. Geise, and Rachel C. Lieber, Assistant U.S. Attorneys.

Before: GINSBURG, TATEL and GRIFFITH, Circuit Judges.


GINSBURG, Circuit Judge:

I. Background 549
II. Analysis: Joint Issues 549
A. Wiretaps 549
B. Traffic Stop 551
C. Superseding Indictment 553
D. Multiple Conspiracies 553
E. Immunity 554
III. Analysis: Evidence Obtained from GPS Device 555
A. Was Use of GPS a Search? 555
1. Knotts is not controlling 556
2. Were Jones's locations exposed to the public? 558
a. Actually exposed? 559
(i). Precedent 559
(ii). Application 560
b. Constructively exposed? 560
(i). Precedent 561
(ii). Application 561
3. Was Jones's expectation of privacy reasonable? 563
4. Visual surveillance distinguished 565
B. Was the Search Reasonable Nonetheless? 566
C. Was the Error Harmless? 567
IV. Conclusion 568

The appellants, Antoine Jones and Lawrence Maynard, appeal their convictions after a joint trial for conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841 and 846. Maynard also challenges the sentence imposed by the district court. Because the appellants' convictions arise from the same underlying Page 549 facts and they make several overlapping arguments, we consolidated their appeals. For the reasons that follow, we reverse Jones's and affirm Maynard's convictions. I. Background Jones owned and Maynard managed the " Levels" nightclub in the District of Columbia. In 2004 an FBI-Metropolitan Police Department Safe Streets Task Force began investigating the two for narcotics violations. The investigation culminated in searches and arrests on October 24, 2005. We discuss that investigation and the drug distribution operation it uncovered in greater detail where relevant to the appellants' arguments on appeal. On October 25 Jones and several alleged co-conspirators were charged with, among other things, conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base. Maynard, who was added as a defendant in superseding indictments filed in March and June 2006, pled guilty in June 2006. In October 2006 Jones and a number of his co-defendants went to trial. The jury acquitted the co-defendants on all counts but one; it could not reach a verdict on the remaining count, which was eventually dismissed. The jury acquitted Jones on a number of counts but could not reach a verdict on the conspiracy charge, as to which the court declared a mistrial. Soon thereafter the district court allowed Maynard to withdraw his guilty plea. In March 2007 the Government filed another superseding indictment charging Jones, Maynard, and a few co-defendants with a single count of conspiracy to distribute and to possess with intent to distribute five or more kilograms of cocaine and 50 or more grams of cocaine base. A joint trial of Jones and Maynard began in November 2007 and ended in January 2008, when the jury found them both guilty. II. Analysis: Joint Issues Jones and Maynard jointly argue the district court erred in (1) admitting evidence gleaned from wiretaps of their phones, (2) admitting evidence arising from a search incident to a traffic stop, (3) denying their motion to dismiss the indictment as invalid because it was handed down by a grand jury that had expired, (4) declining to instruct the jury on their theory that the evidence at trial suggested multiple conspiracies, and (5) declining to grant immunity to several defense witnesses who invoked the Fifth Amendment to the Constitution of the United States and refused to testify. Jones also argues the court erred in admitting evidence acquired by the warrantless use of a Global Positioning System (GPS) device to track his movements continuously for a month.[*] After concluding none of the joint issues warrants reversal, we turn to Jones's individual argument. A. Wiretaps Before their first trial Jones and his co-defendants moved to suppress evidence taken from wiretaps on Jones's and Maynard's phones. The police had warrants for the wiretaps, but the defendants argued the issuing court abused its discretion in approving the warrants because the Page 550 applications for the warrants did not satisfy the so-called " necessity requirement," see 18 U.S.C. § 2518(3)(c) (" normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous" ); see also, e.g., United States v. Becton, 601 F.3d 588, 596 (D.C.Cir.2010). They also moved for a hearing, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), into the credibility of one of the affidavits offered in support of the warrant. The district court denied both motions. 451 F.Supp.2d 71, 78-79, 81-83 (2006). Before his second trial Jones moved the court to reconsider both motions; Maynard adopted Jones's motions and made an additional argument for a Franks hearing. The district court held Jones's motion for reconsideration added nothing new and denied it for the reasons the court had given before the first trial. 511 F.Supp.2d 74, 77 (2007). The court then denied Maynard's separate motion for a Franks hearing. Id. at 78. The appellants appeal the district court's denial of their motions to suppress and for a Franks hearing. As for their motions to suppress, the district court held the applications for the warrants " amply satisfie[d]" the necessity requirement because they recounted the ordinary investigative procedures that had been tried and explained why wiretapping was necessary in order to " ascertain the extent and structure of the conspiracy." 451 F.Supp.2d at 83. We review the court's " necessity determination" for abuse of discretion. United States v. Sobamowo, 892 F.2d 90, 93 (D.C.Cir.1989). The appellants do not directly challenge the reasoning of the district court; rather they suggest sources of information to which the police hypothetically might have turned in lieu of the wiretaps, to wit, cooperating informants, controlled buys, and further video surveillance. At best, the appellants suggest investigative techniques that might have provided some of the evidence needed, but they give us no reason to doubt the district court's conclusion that " [h]aving engaged in an adequate range of investigative endeavors, the government properly sought wiretap permission and was not required to enumerate every technique or opportunity missed or overlooked." 451 F.Supp.2d at 82 (quoting Sobamowo, 892 F.2d at 93). The appellants also requested a hearing into the credibility of the affidavit submitted by Special Agent Yanta in support of the wiretap warrants. An affidavit offered in support of a search warrant enjoys a " presumption of validity," Franks, 438 U.S. at 171, 98 S.Ct. 2674, but

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Id. at 155-56, 98 S.Ct. 2674. The substantial showing required under Franks must be " more than conclusory" and " accompanied by an offer of proof." United States v. Gaston, 357 F.3d 77, 80 (D.C.Cir.2004) (quoting Franks ). The appellants argued Yanta intentionally or at least recklessly both mischaracterized certain evidence and omitted any mention in her affidavit of Holden, an informant whom the appellants think might have assisted the investigation. The district court denied the motion, holding the appellants had satisfied neither the substantial showing nor the materiality requirement for a Franks hearing. Page 551 451 F.Supp.2d at 78-79,511 F.Supp.2d at 77-78. As we recently noted, " [t]he circuits are split on the question whether a district court's decision not to hold a Franks hearing is reviewed under the clearly erroneous or de novo standard of review," and " [w]e have not definitively resolved the issue in this circuit." United States v. Becton, 601 F.3d 588, 594 (2010) (internal quotation marks deleted). We need not resolve the issue today because even proceeding de novo we would agree with the district court: The appellants did not make the requisite substantial preliminary showing that Yanta, in her affidavit, intentionally or recklessly either described the evidence in a misleading...

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