U.S. v. Peterson

• Decision Date: 22 August 2008
• Docket Number: Criminal Action No. 7:07-CR-34-HL.
• Citation: 627 F.Supp.2d 1359
• Parties: UNITED STATES of America v. Winston C. PETERSON, Defendant.
• Court: U.S. District Court — Middle District of Georgia

627 F.Supp.2d 1359

UNITED STATES of America v. Winston C. PETERSON, Defendant.

Criminal Action No. 7:07-CR-34-HL.

United States District Court, M.D. Georgia. Valdosta Division.

August 22, 2008.

COPYRIGHT MATERIAL OMITTED

James N. Crane, Leah E. McEwen, Albany, GA, for United States of America.

ORDER

HUGH LAWSON, District Judge.

Before the Court are Defendant's Motion to Suppress Evidence Obtained by Electronic Surveillance or Wiretap (Doc. 68), Defendant's Motion for Additional Discovery and to Modify Order of Limited Disclosure of Sealed Matters (Doc. 69), Defendant's Renewed Motion to Suppress Grand Jury Testimony (Doc. 76), Defendant's Motion to Dismiss Count I (Doc. 75), Defendant's Motion in Limine in Connection with Count II (Doc. 42), Defendant's Motion to Dismiss Count III (Doc. 81), Defendant's Motion to Dismiss Count IV (Doc. 73), Defendant's Motion for Election or Separate Trial of Counts (Doc. 74), and Defendant's Motion to Unseal Search Warrant (Doc. 101). For the following reasons, Defendant's Motion to Suppress Evidence Obtained by Electronic Surveillance, Renewed Motion to Suppress Grand Jury Testimony, and Motion to Dismiss Count I are denied. Defendant's Motion for Additional Discovery and to Modify Order of Limited Disclosure of Sealed Matters, Motion in Limine in Connection with Count II, and Motion for Election or Separate Trial of Counts are denied as moot. Last, Defendant's Motion to Dismiss Count III, Motion to Dismiss Count IV, and Motion to Unseal are granted.

I. BACKGROUND

Defendant Winston Peterson is the Sheriff of Clinch County, Georgia. On November 2, 2007, the grand jury returned a five count Indictment (Doc. 1) against Defendant Peterson, charging him with extortion by a public official in violation of 18 U.S.C. § 1951 (Count I), obstruction of justice in violation of 18 U.S.C. § 1503 (Count II), perjury in violation of 18 U.S.C. § 1623 (Count III), forced labor in violation of 18 U.S.C. § 1589 (Count IV), and obstruction of justice in violation of 18 U.S.C. § 1512(c)(2) (Count V).

Count I charged that Defendant committed extortion in violation of the Hobbs Act when he charged inmates for their room and board at the Clinch County Jail. Count IV charged Defendant with using the forced labor of an inmate identified by the initials ES. Count V charged Defendant with obstruction of justice for tipping off Co-Conspirator # 1 ("CC # 1") as to the identity of a confidential informant against CC # 1. Counts II and III charged Defendant with lying to the grand jury when asked whether he did in fact disclose to CC # 1 the identity of a confidential informant. Defendant filed Motions to Dismiss Counts I, II, IV, and V. He also filed a Motion to Suppress Grand Jury Testimony and a Motion for Election or Separate Trial of Counts. On February 28, 2008, the Court entered an Order (Doc. 45) denying Defendant's Motion to Suppress and Motion to Dismiss Count II, granting Defendant's Motions to Dismiss Counts I, IV, and V, and denying as moot Defendant's Motion for Election or Separate Trial of Counts.

After the Court dismissed Counts I, IV, and V, the Government filed a four count Superseding Indictment (Doc. 59) that charges Defendant with the same offenses charged in the original Indictment, except for the Hobbs Act violation that was charged in Count I. In the Superseding Indictment, Count I corresponds to Count II of the original Indictment, Count II corresponds to the original Count III, Count III corresponds to the original Count V, and Count IV corresponds to the original Count IV.

Defendant has filed a Motion to Suppress Evidence Obtained by Electronic Surveillance or Wiretap, a Motion for Additional Discovery and to Modify Order of Limited Disclosure of Sealed Matters, a Renewed Motion to Suppress Grand Jury Testimony, a Motion to Dismiss Count One, a Motion in Limine in Connection with Count Two, a Motion to Dismiss Count Three, a Motion to Dismiss Count Four, a Motion for Election or Separate Trial of Counts, and a Motion to Unseal Search Warrant.

II. DISCUSSION

A. Motion to Suppress Evidence Obtained by Electronic Surveillance or Wiretap

On April 9, 2007, the Court entered an order in Case No. 5:07-MJ-0403 authorizing the interception of telephonic and other oral communications by means of a wiretap on Judge Brooks Blitch's telephone and other surreptitiously planted recording devices in Judge Blitch's office. Prior to his recent resignation, Judge Blitch was the Chief Superior Court Judge of the Alapaha Circuit. Pursuant to this electronic surveillance order, the Government intercepted and recorded two conversations that Defendant contends the Government will introduce as evidence in Defendant's trial. Defendant seeks suppression of this evidence on two grounds: (1) the affidavit in support of the electronic surveillance application does not allege facts sufficient to establish probable cause; and (2) the application and affidavit do not show that normal investigative methods have been tried or reasonably appeared to be unlikely to succeed or were too dangerous, as required by 18 U.S.C. § 2518(3)(c). In addition, Defendant requests a Franks hearing to determine whether the affiant omitted material facts from the affidavit in support of the wiretap intercept order.¹

1. Probable cause

To support an order of electronic surveillance, an affidavit must establish, among other things, probable cause to believe that an individual is committing, has committed, or is about to commit certain offenses enumerated in 18 U.S.C. § 2516, and probable cause to believe that communications concerning that offense will be obtained through electronic surveillance. 18 U.S.C. § 2518(3)(a). The probable cause necessary to support a wiretap authorization is the same probable cause necessary for a search warrant. United States v. Nixon, 918 F.2d 895, 900 (11th Cir.1990). Thus, probable exists if the totality of the circumstances indicate that there is a fair probability that the sought for evidence will be obtained. Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The probable cause determination of the judge who issued the wiretap order will be upheld if the judge had a "substantial basis" for concluding that probable cause existed. Nixon, 918 F.2d at 900.

In this case, the affidavit alleges that probable cause exists to believe that Judge Blitch and others have committed, are committing, or will continue to commit the federal offense of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951(a), which is an offense enumerated in § 2516. Defendant contends that the affidavit filed in support of the search warrant fails to show probable cause for two reasons. First, it fails to show that Judge Blitch received anything of value in return for fixing criminal cases. Second, it contains no allegation of an impact upon interstate commerce, which is an element of a Hobbs Act violation.

a. Receipt of thing of value

"An extortion conviction under the Hobbs Act requires proof that (1) the defendant induced his victim to part consensually with property (2) either through the wrongful use of actual or threatened force, violence or fear or under color of official right (3) in such a way as to adversely affect interstate commerce." United States v. Smalley, 754 F.2d 944, 947 (11th Cir.1985). There are two types of Hobbs Act extortion: (1) extortion by force, which is the "`obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear;'" and (2) extortion under color of official right, which is the "`obtaining of property from another, with his consent, under color of official right.'" United States v. Clark, 773 F.Supp. 1533, 1534 (M.D.Ga.1991) (quoting United States v Williams, 621 F.2d 123, 124 (5th Cir. 1980)).² In order to establish extortion under color of official right, the Government does not need to show the element of actual or threatened force, violence, or fear. United States v. Glass, 709 F.2d 669, 674 (11th Cir.1983).

Defendant contends that to establish the offense of extortion by a public official, the Government must prove that a public official participated in the solicitation of payment and that the demand for payment was coupled with the public official's promise to perform some act of official grace. Accordingly, Defendant argues that the affidavit in this case must demonstrate probable cause to believe that Judge Blitch solicited and received payment in return for the exercise of official acts. Because the affidavit only establishes that private individuals, not Judge Blitch, demanded and received money, Defendant contends that probable cause does not exist. The Court disagrees with Defendant's interpretation of both the law and the allegations in the affidavit.

First, to establish the offense of extortion by a public official, the Government need not prove that the public official actively solicited the illicit payment. Evans v. United States, 504 U.S. 255, 268, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992). Passive receipt of property by a public official is sufficient to form the basis of a Hobbs Act violation if the official received the property knowing that it was in return for official acts. Id. Second, a Hobbs Act violation is not contingent on the extortionist receiving the extorted property. See United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.1984); United States v. Cerilli, 603 F.2d 415, 420 (3d Cir.1979); United States v. Hyde, 448 F.2d 815, 843 (5th Cir.1971). "[T]he gravamen of the offense is loss to the victim." Hyde, 448 F.2d at 843; see United States v. Hairston, 46 F.3d 361, 365 (4th Cir.1995). Thus, it is a violation for a public official to perform an act in return for payment to a third-party. See Haimowitz, 725 F.2d at 1577; see generally United States v. Scacchetti, 668 F.2d 643 (2d Cir.1982) (affirming Hobbs Act conviction where city court judge dismissed...