U.S. v. McWilliams, Criminal Action No. 3:07-00126.
| Decision Date | 10 January 2008 |
| Docket Number | Criminal Action No. 3:07-00126. |
| Citation | 530 F.Supp.2d 813 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | UNITED STATES of America v. Anthony McWILLIAMS also known as "Big Dog," "Big Bro," "Solomon Sain," "Mano," "Uncle," "Anthony Harris," "Martin Wiseman" Tyron Antuan Drew also known as "Nephew" Robert Henderson also known as "Slim" Willie James Fondren also known as "Sko," "Elko" Daniel Rodrick Rice Roy Allen Holley Phillip Shane Morrison Carl Smith Joseph Edward Brooks Rico Andre Bailey Robert Samuel Crutcher, Jr. also known as "Bo" Sherifa LeJuan McClure also known as "Red". |
Jacqueline A. Hallinan, Hallinan Law Office, Nicholas S. Preservati, Preservati Law Offices, Mark L. French, Criswell & French, Louie Thompson Price, Holroyd & Yost, Barron M. Helgoe, Victor Victor & Helgoe, Troy N. Giatras, The Giatras Law Firm, Gary A. Collias, Gary A. Collias, Attorney at Law, Charleston, WV, David D. Perry, Law Office of David D. Perry, Richard W. Weston, Weston Law Office, W. Michael Frazier, Frazier & Oxley, Huntington, WV, Jane C. Moran, Jane Moran Law Office, Williamson, WV, Herbert L. Hively, II, Hively Law Office, Hurricane, WV, Deirdre H. Purdy, Chloe, WV, for Anthony McWilliams, et al.
Stephanie L. Haines, U.S. Attorney's Office, Huntington, WV, for USA.
Pending before the Court are the above defendants' motions to exclude audiotape evidence. [Nos. 430, 435, 438, 440, 444, 445, 446, 447, 451, 458, and 516 and the oral motion to join in with these motions made by counsel for Robert Henderson]. The defendants move to exclude all audiotapes obtained by the Government pursuant to wiretap warrants which were issued in the investigation of this case. For the following reasons, the Court GRANTS the motions and EXCLUDES the use of the audiotape evidence in this case.
On April 18, 2007, the Government filed an Application for Interception and Recording of Wire Communications pursuant to 18 U.S.C. § 2518. The action was sealed and assigned to Chief Judge David A. Faber of the Southern District of West Virginia. Chief Judge Faber approved the initial application for a period of thirty days. On May 16, 2007, Chief Judge Faber authorized the warrants to continue for an additional thirty days. According to the Government, the warrants produced approximately 12,000 taped phone calls, of which approximately 2,500 were relevant to the alleged distribution of controlled substances, and expired on June 13, 2007.
The Government states that on June 14, 2007, the master disc containing the recorded conversations was placed in a self-sealing evidence bag and was initialed by Special Agent Torn E. Bevins and witnessed by Lt. Albers of the Huntington Police Department. The bag was then placed in a portable safe at the Huntington Police Department and later Agent Bevins transported the safe to a vault at the Drug Enforcement Agency's headquarters located in Charleston, West Virginia. In an affidavit submitted by the Assistant United States Attorney (AUSA) who handled the matter, she states that the Government decided not to contact the Court to have the disc sealed until after the defendants were arrested and preliminary hearings conducted. Although officers retained copies of some or all of the recordings, the Government delayed seeking the seal so as to keep the master disc available should it be needed at the preliminary hearings. The Government states the master disc was never used or opened.
Agents began arresting several of the defendants on the day the warrants expired. Preliminary hearings were held on June 19, 21, and 26, 2007. The AUSA assigned the case at that time states that the substance of the calls was used against the defendants at the preliminary hearings to establish probable cause. Following the last preliminary hearing, the AUSA avers that she contacted Chief Judge Faber's office on that same day and was informed the Chief Judge would be out of the office until July 10, 2007. The AUSA states she called Chief Judge Faber's office again on June 27, 2007, and she received confirmation the Chief Judge could not sign an order to formally seal the master disc until July 10, 2007. Thus, on July 10, 2007, the AUSA and Agent Bevin met with Chief Judge Faber who signed the order formally sealing the master disc.
The issue now before the Court is whether the delay in formally sealing the disc should result in its exclusion. At oral argument held on December 10, 2007, the Government conceded that it did not immediately present the master disc to Chief Judge Faber to be formally sealed pursuant to § 2518. Nevertheless, the Government states it did not violate the provisions of § 2518 because it has a satisfactory explanation as to why the master disc was not sealed for more than three weeks. Pursuant to § 2518(8)(a):
The contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.
Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517.
18 U.S.C. § 2518(8)(a). In United States v. Ojeda Rios, 495 U.S. 257, 110 S.Ct. 1845, 109 L.Ed.2d 224 (1990), the United States Supreme Court addressed the requirements of this statute and set forth guidelines that courts must follow in ruling on motions to exclude.
In Ojeda Rios, the defendants moved to suppress electronic surveillance tapes based upon the Government's failure to timely seal the tapes. The Court began its discussion by noting that § 2518 "has an explicit exclusionary remedy for noncompliance with the sealing requirement, providing that `[t]he presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517." 496 U.S. at 260, 110 S.Ct. 2356 (quoting 18 U.S.C. § 2518(8)(a); footnotes omitted). The Court further recognized that the "satisfactory explanation" requirement in the statute extends not only to the "`absence' of a seal but also the absence of a timely seal." Id. at 263, 110 S.Ct. 2356 (quoting 18 U.S.C. § 2518(8)(a)). According to the Court, the purpose of the sealing requirement
is to ensure the reliability and integrity of evidence obtained by means of electronic surveillance. The presence or absence of a seal does not in itself establish the integrity of electronic surveillance tapes. Rather, the seal is a means of ensuring that subsequent to its placement on a tape, the Government has no opportunity to tamper with, alter, or edit the conversations that have been recorded. It is clear to us that Congress viewed the sealing requirement as important precisely because it limits the Government's opportunity to alter the recordings.
Id. In order to comply with the statute, the Court emphasized that a mere explanation by the Government as to why there was not an immediate seal is insufficient as the statute expressly requires that the Government give a "satisfactory explanation" for the delay. Id. at 264, 110 S.Ct. 2356 (emphasis original). In this regard, the Court explained that
[i]t is difficult to imagine a Situation in which the Government could not explain why it delayed in seeking to have tapes sealed. Even deliberate delay would be enough, so long as the Government could establish the integrity of the tapes; yet deliberate delay could hardly be called a satisfactory explanation. To hold that proof of nontampering is a substitute for a satisfactory explanation is foreclosed by the plain words of the sealing provision.
Id. at 264-65, 110 S.Ct. 2356 (emphasis original). Even if the Government could prove the authenticity of the tapes, the Court found that Congress obviously intended more by imposing the sealing safeguard. Id. at 265, 110 S.Ct. 2356. Thus, the Court determined Id. According to the Court, a reasonable excuse does not require the Government to prove that its "particular understanding of the law is correct but rather only that its interpretation was objectively reasonable at the time." Id.
Here, there was a thirteen-day delay between the day the warrants expired and the day the Government contacted Chief Judge Faber's office to have the master disc sealed. As Chief Judge Faber was unavailable at that time, there was an additional fourteen-day delay before the order sealing the master disc was signed, for a total delay of twenty-seven days. As previously mentioned, the Government concedes that the master disc was not immediately sealed so the primary issue...
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