U.S. v. Martin

• Decision Date: 11 April 2001
• Docket Number: No. CR. A. 99-69.,CR. A. 99-69.
• Citation: 169 F.Supp.2d 558
• Parties: UNITED STATES of America v. Andrew MARTIN
• Court: U.S. District Court — Eastern District of Louisiana

169 F.Supp.2d 558

UNITED STATES of America v. Andrew MARTIN

No. CR. A. 99-69.

United States District Court, E.D. Louisiana.

April 11, 2001.

James R. Heavner, Jr., Miller, Cassidy, Larroca & Lewin, LLP, Washington, DC, Ryan Jared Roemrshauser, Garcia & Bishop, Metairie, LA, Mark S. Stein, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, LA, Servando C. Garcia, III, Garcia & Bishop, Metairie, LA, Daniel E. Small, Butters, Brazilian & Small, LLP, Boston, MA, William H. Jeffress, Jr., Baker Botts, LLP, Washington, DC, for defendant.

ORDER AND REASONS

BARBIER, District Judge.

On March 11, 1999, a grand jury sitting in the Eastern District of Louisiana returned an indictment charging defendant Andrew Martin ("Martin") with several criminal tax violations. At trial, the Government intends to offer nine recorded conversations which were intercepted pursuant to 18 U.S.C. §§ 2510, et seq. (Title III of the Omnibus Crime Control and Safe Streets Act) and obtained in conjunction with an investigation into the dealings of former Louisiana governor Edwin W. Edwards. Martin filed an Amended Motion to Suppress Fruits of Wire, Oral and Electronic Surveillance (Rec.Doc. 87)¹ in which he seeks to suppress those conversations. In the event the Court concludes that he is not entitled to outright suppression at this juncture, Martin requests a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). He also filed a Motion to Dismiss for Kastigar Violations (Rec.Doc. 44) and Motion to Dismiss for Prosecutorial Misconduct (Rec.Doc. 45) seeking to have the indictment dismissed based on events arising out of his prior appearance before a state grand jury. All three motions were heard on February 15, 2001, at which time the Court took them under advisement.

Having now considered the memoranda, the exhibits, the applicable law, and the arguments presented by counsel, the Court concludes, for the reasons stated below, that all of the motions should be DENIED.

I. Martin's Motion to Suppress Fruits of Wire, Oral and Electronic Surveillance

A. Background

The conversations under attack in the instant motion were intercepted during an investigation into matters unrelated to the crimes charged in the current indictment. They are a small subset of an expansive collection of wire, oral, electronic, and video surveillance obtained in conjunction with an investigation of former Louisiana governor Edwin W. Edwards.

The investigation was born out of allegations made by Michael and Patrick Graham ("the Grahams"). In April 1996, the Grahams told federal agents that they were involved in an illegal payoff scheme involving Edwin W. Edwards ("EWE"). The Grahams claimed that payments were made to EWE during his term in office in order to obtain his support for the Grahams' proposal to construct a juvenile detention facility in Jena, Louisiana. The payments were allegedly made through Cecil Brown ("Brown"), a Louisiana businessman and friend of EWE. Federal agents obtained consensual recordings of conversations between Brown and Patrick Graham in an attempt to corroborate the Grahams' allegations.

In June 1996, the Government filed an application, in accordance with 18 U.S.C. §§ 2510, et seq. (Title III of the Omnibus Crime Control and Safe Streets Act or "Title III") in the Western District of Louisiana seeking authorization to intercept pertinent communications on Brown's home and business telephones ("Brown T-III"). The application asserted probable cause based on the Grahams' allegations about the Jena project as well as excerpts from the consensual recordings made between Brown and Patrick Graham. The district judge issued an order authorizing the interception. While none of the conversations intercepted pursuant to the Brown T-III were incriminating with respect to Martin, one of his conversations, social in nature, was intercepted.

After several months of intercepting communications via the Brown T-III, the Government sought and obtained an order authorizing a wiretap on EWE's home telephone.² Probable cause for this surveillance was based upon the same evidence that had been used to obtain the Brown T-III but supplemented by conversations intercepted during the Brown T-III. Finally, in late 1996, the court authorized oral and visual surveillance of the law offices of EWE and his son Stephen W. Edwards ("SWE"). Again, probable cause for each of these orders was based upon the same evidence offered in support of the Brown T-III but supplemented by the cumulative surveillance evidence captured pursuant to the preceding surveillance orders. Although each surveillance order was only valid for a thirty day period, the district judges who monitored the surveillance continued to extend the orders through April 1997.

For purposes of the current indictment, the Government seeks to introduce nine conversations intercepted pursuant to the T-III orders described above — eight captured during the surveillance of EWE's home and office and one captured during the surveillance of SWE's office. None of the conversations captured on the Brown T-III are relevant to the criminal tax charges currently pending.

As a result of the Government's investigation and the expansive surveillance described above, numerous individuals were charged with various criminal offenses resulting in prosecutions in both the Eastern and Middle Districts of Louisiana. Accordingly, the legality of the surveillance that captured the conversations at issue in this motion has been attacked in prior criminal proceedings by various defendants,³ including Martin who was a codefendant in United States v. Edwin Edwards, et al. (M.D.La.CR98-165B-M2) (the riverboat license extortion case). The significance of Martin's prior unsuccessful attempt to challenge the legality of the Title III orders during the Edwards case is discussed later in this ruling.

B. The Parties' Contentions

In his first argument, Martin asserts that the initial Brown T-III wiretap was obtained in violation of Title III and the Fourth Amendment because the Government's affidavit did not establish probable cause and failed to demonstrate "necessity" as required by 18 U.S.C. § 2518(3)(c). Accordingly, any evidence captured on the Brown T-III is subject to suppression as is any evidence derived from it. And given that the EWE and SWE surveillances were authorized based upon communications intercepted on the Brown T-III, they too are tainted so that all evidence gathered during them, including the conversations under attack in this motion, must be suppressed.

Second, Martin argues that even if the Brown T-III was valid, there was still no probable cause to believe that a wiretap of EWE's home and office phones would reveal evidence of criminal activity. And even if the initial EWE T-III was supported by probable cause, the extensions to the initial order were not. Accordingly, all nine conversations must be suppressed.

Finally, Martin argues that the conversation gathered during the surveillance of SWE's office must be suppressed because that surveillance was conducted without court authorization. In the event that the Court does not determine that the nine conversations should be suppressed outright, Martin argues that he has made a substantial preliminary showing that the agents' affidavits contained intentional and/or reckless false statements or material omissions so as to entitle him to an evidentiary hearing pursuant to Franks v. Delaware, supra.

In opposition, the Government argues that Martin's prior unsuccessful attempt to attack the T-III surveillance during the Edwards case should preclude him from doing so in this case. Asserting essentially the same arguments as he does here, he lost that motion on the merits when the district court found that all of the surveillance complied with Title III and the Fourth Amendment. Accordingly, the Government contends that Martin should be bound by that ruling, and therefore, precluded from relitigating the validity of the T-III orders.

As to Martin's first argument on the merits, the Government contends that he lacks standing to challenge the validity of the Brown T-III. Therefore, the illegality vel non of that surveillance is irrelevant to this case. Regardless of Martin's standing with respect to the Brown T-III, the Government argues that all of the initial T-III orders as well as their subsequent extensions were obtained in compliance with Title III and the Fourth Amendment. The Government also argues that Martin has not made a showing so as to entitle him to a Franks hearing.⁴

C. Preclusion

As an initial matter, the Court must consider the implications, if any, of Martin's prior unsuccessful attempt to attack the validity of the T-III surveillance when he was a codefendant in the Edwards case. Martin's motion in this case asserts essentially the same arguments that he raised in the Edwards motion to suppress. If this were a civil case, principles of issue preclusion or collateral estoppel would undoubtedly preclude Martin from relitigating the validity of the T-III surveillance. The question then is whether those principles apply in the criminal context so as to prevent Martin from having the current motion to suppress decided on the merits.

In this circuit, there is no controlling authority as to the constitutional validity of applying the type of preclusion that the Government seeks to impose in this criminal case. In United States v. Hamilton, 931 F.2d 1046, 1052-53 (5th Cir.1991), the issue was raised before the Fifth Circuit Court of Appeals but the court disposed of the case on other grounds. Various courts outside of this circuit have addressed the issue of collateral estoppel in the criminal context but even among those courts there is disagreement. See United States v. Price, 13 F.3d 711, 720 (3d Cir.1994) (discussing the disagreement among the federal courts as to whether collateral estoppel applies in...