U.S. v. Gray
| Decision Date | 06 June 2005 |
| Docket Number | No. 104CR580.,104CR580. |
| Citation | 372 F.Supp.2d 1025 |
| Parties | UNITED STATES of America, Plaintiff, v. Nathaniel GRAY, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
James A. Jenkins, Cleveland, OH, Jerome M. Emoff, Cleveland, OH, John F. McCaffrey, McLaughlin & McCaffrey, Cleveland, OH, Kevin M. Cafferkey, William T. Doyle, Cleveland, OH, for Joseph Jones (1), Defendant.
William D. Beyer, Wuliger, Fadel & Beyer, Cleveland, OH, William T. Whitaker, Jr., Whitaker & Rowlands, Akron, OH, for Nathaniel Gray.
David L. Doughten, Cleveland, OH, Joseph E. Rutigliano, Mayfield Heights, OH, Robert A. Dixon, Cleveland, OH, for Ricardo Teamor.
Robert J. Rotatori, Richard L. Stoper, Rotatori Bender Gragel Stoper Alexander, Cleveland, OH, Rusty Hardin, Houston, TX, for Monique McGilbra.
John F. McCaffrey, McLaughlin & McCaffrey, Cleveland, OH, for Brent Jividen.
Robert Jenkins, New Orleans, LA, for Gilbert Jackson.
Steven M. Dettelbach, Office of the U.S. Attorney, Northern District of Ohio, Benita Y. Pearson, Office of the U.S. Attorney, Cleveland, OH, Mary K. Butler, U.S. Department of Justice, Public Integrity Section, Washington, DC, for United States of America, Plaintiff.
Before the Court is Defendant Gray's Motion to Suppress All of the Title III Intercepts seized pursuant to the Omnibus Crime Control and Safe Street Act of 1968 ("Title III"), 18 U.S.C. §§ 2510-2520. [Doc. No. 227]. Defendants Monique McGilbra, Joseph Jones, and Gilbert Jackson joined Gray's motion to suppress. [Doc. No. 225, 230 & 265]. The Government opposes these motions. [Doc. Nos. 235 & 239]. For the following reasons, the Court DENIES Defendant Gray's motion to suppress.
Defendant Gray generally contends that evidence obtained through the Title III intercepts should not be received because of claimed failures to comply with formalities associated with the application process. With this argument, Gray points to the Government's failure to identify the Department of Justice ("DOJ") official who authorized the Title III application, failure to attest to the applications, and failure to include the name of the authorizing DOJ official in the Title III Order. In addition, Gray complains that insufficient evidence supported the Title III applications and argues that investigating authorities failed to minimize the wiretap's intrusiveness.
The wiretaps originated with a January 15, 2002, application submitted by David A. Sierleja, an attorney of the DOJ. Sierleja made the application as an investigative or law enforcement officer under Title III.1 The January 2002 application has several defects. First, Sierleja had received approval for the application from Deputy Assistant Attorney General Malcolm, who is a specially-designated official authorized to review and approve Title III wiretaps. However, the January 15, 2002, application does not identify the specially-designated Justice Department official who approved the application. The Title III application also does not include a copy of the letter from the specially-designated DOJ official that approved the intercept. In addition, the January 15, 2002, application was not sworn under oath or affirmation, and it does not indicate the time when AUSA Sierleja executed it. Sierleja filed the application on January 16, 2001.
On January 16, 2002, Judge Oliver reviewed the application and issued an order granting an application to commence a thirty-day Title III wiretap of Gray's various phone business and cellular phone numbers. Like the application, the order does not identify the Justice Department official who approved the application.2
Following the expiration of the thirty-day period, the Government sought to renew the wiretap. In applying to renew the wiretaps, however, the Government failed to comply with the statutory requirement that specially-designated DOJ official approve the renewal application. A district court judge granted the application. After later appreciating that the Government had not obtained necessary approval from any authorized Justice Department official, the Government self-suppressed the tainted interceptions from the unauthorized renewal applications, spanning from February 15, 2002 to May 13, 2002. Gov't Br., Dkt 239, at 31.
Seeking to correct the problem associated with the interceptions from February 15, 2002 through May 13, 2002, the Government filed a new Title III wiretap application on July 30, 2004, regarding the same phone numbers. Correcting the problems in the earlier applications, the July 30, 2002, application identifies the authorizing official and attaches two exhibits; the DOJ letter specially designating the authorizing official and the authorizing official's letter approving the July 30, 2002 intercept.3 In attempting to show probable cause for this July 30, 2002, application, the Government repeated many of the probable cause allegations that were contained in its January 16, 2002 application. However, the Government also added evidence intercepted in the January 16, 2002 through February 14, 2002 period of wiretaps and evidence derived independently. Judge Matia approved the application on July 30, 2002, and the clerk's office filed the documents under seal.
On November 19, 2004, the Grand Jury issued an indictment as to Joseph Jones. On January 14, 2005, the Grand Jury issued a superseding indictment, adding Monique McGilbra, Nathaniel Gray, and Gilbert Jackson among others. Defendant Gray filed the instant motion under seal on April 22, 2005. Trial is set to begin on June 13, 2005.
On April 28, 2005, the Court conducted a suppression hearing. The clerk of the court testified, and counsel examined the applications and orders for the intercepts authorized in January 2002 and July 2002.
On May 3, 2005, the Court reconvened the suppression hearing. Although the Defendants had earlier sought to compel the testimony of Judge Oliver, the district court judge who had authorized the January 15, 2002, wiretaps, they withdrew their subpoena. At the May 3, 2005, reconvened hearing, the Government proffered that, if required, Judge Oliver would testify, that he was aware that the Government had obtained approval for the January 15, 2002, wiretap application before he signed the order.
On May 3, 2005, the Government filed a motion requesting the Court to accept the Government's proffer, or, in the alternative, to reopen the hearing to allow AUSA Sierleja to testify. The Court granted the motion to reopen the hearing and on May 9, 2005, the Court held a hearing on the Government's motion. The Court orally denied the Government's motion to accept the proffer.
After denying the Government's motion to accept the proffer, the Court reopened the hearing. On May 9, 2005, AUSA Sierleja testified. Sierleja stated that at the time that he originally applied for the Title III intercept, he told Judge Oliver "that there was a review process [in the Justice Department] and ultimately an approval for that before we submitted anything to him." Sierleja further explained that he had earlier obtained authorization from a specially-designated DOJ official before submitting the application to Judge Oliver for approval. It is not clear from the record whether Sierleja informed Judge Oliver of the name of the authorizing official or whether he merely informed Judge Oliver that he had obtained approval. When he met with Judge Oliver, Sierleja had Malcolm's letter approving the application with him, but he did not show the authorizing letter to Judge Oliver.
In moving to suppress the Title III wiretaps, Defendant Gray advances numerous arguments. Gray argues that the January 2002 intercepts should be suppressed because the application and order were flawed in several respects. Gray's primary argument is that the Court should suppress the January 2002 intercepts because the application and the order that authorized the wiretaps omitted the identity of the high-ranking Justice Department official who approved the interception. Additionally, Gray maintains that the intercepts should be suppressed and argues that insufficient evidence shows that Sierleja obtained approval from a specially-designated Justice Department official for the January 2002 and July 2002 applications. Gray further asserts that the January 2002 intercepts should be suppressed because Sierleja did not swear the application under oath or affirmation. Gray next asserts that all of the intercepts should be suppressed because the application and order did not support a finding of probable cause and a finding that electronic surveillance was necessary for the investigation. Gray additionally claims that the Government failed to minimize the interception of non-pertinent communications. Gray contends that the Government failed to terminate the surveillance after the period necessary to achieve the objective of the authorization. As another argument, Gray maintains that the Government failed to timely disclose the surveillance. In addition to arguing that the Title III violations warranted suppression, Defendant Gray argued that all of the violations cumulatively required suppression.
The Government opposes Defendant Gray's motion. For the reasons discussed below, the Court denies Defendant Gray's motion.
Title III sets out requirements for receiving permission to intercept wire communications and provides for suppressing interceptions "if the disclosure of that information would be in violation of this chapter." 18 U.S.C. § 2515. A defendant may move to suppress the intercepted communications on three statutory grounds:
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of...
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