U.S. v. Robinson

• Decision Date: 08 June 2007
• Docket Number: Criminal No. 1:05-CR-443.
• Parties: UNITED STATES of America, v. Franklin ROBINSON, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

513 F.Supp.2d 169

UNITED STATES of America, v. Franklin ROBINSON, et al., Defendants.

Criminal No. 1:05-CR-443.

United States District Court, M.D. Pennsylvania.

June 8, 2007.

COPYRIGHT MATERIAL OMITTED

Timothy J. O'Connell, Turner and O'Connell, Harrisburg, PA, Edward J. Rymsza, Miele & Rymsza, P.C., Williamsport, PA, John F. Yaninek, Mette, Evans and Woodside, Joseph Caraciolo, Foreman & Foreman, P.C., Joseph A. Curcillo, III, Beinhaur & Curcillo, Samuel Rivera, Rivera Law Firm, Harrisburg, PA, Michael G. Leonard, Law Office of Michael G. Leonard, Hughesville, PA, Dennis E. Boyle, Dennis E. Boyle, Esquire, Camp Hill, PA, for Defendants.

Gordon A. Zubrod, James T. Clancy, U.S. Attorney's Office, Harrisburg, PA, for Plaintiff.

MEMORANDUM

YVETTE KANE, Chief Judge.

In a superseding indictment filed December 8, 2005, Defendants in the above-captioned case were charged with various crimes involving the interstate transportation of adults and minors for prostitution and with money laundering. After consolidation of Defendants' pre-trial schedules, and following several continuances, the Court has scheduled jury selection and trial to begin on October 1, 2007.

Now pending before the Court are motions filed by Defendants Franklin Robinson and Derick Price to suppress evidence obtained from wiretaps on cellular telephones used by Defendants Robinson and Derek Maes that had been authorized by Judge Vanaskie, who was at that time the Chief Budge of the Middle District of Pennsylvania.¹ (Doc. Nos.432, 454.) Robinson and Price have advanced an assortment of arguments in support of their motions, including the following: (1) that the affidavits offered in support of the applications for the wiretaps and extensions thereof failed to satisfy the statutory requirement of "necessity" set forth in 18 U.S.C. § 2518(3)(c); (2) that the Government failed to minimize the intercepted calls as required by 18 U.S.C. § 2518(5); (3) that the results of the wiretaps were not sealed immediately upon expiration of the extension orders authorizing the wiretaps as required by 18 U.S.C. § 2518(8)(a); (4) that the Government deliberately and advertently failed to comply with the notice and inventory provisions of 18 U.S.C. § 2518(8)(d); and (5) that Agent Stossel's affidavits failed to provide probable cause to believe that particular communications regarding the alleged offenses would be obtained through electronic interception as required by 18 U.S.C. § 2518(3)(b).

Related to their motions to suppress, Robinson and Price have requested that the Court convene a hearing in accordance with Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ("Franks hearing"), to allow them to examine FBI Agent John Stossel regarding his alleged intentional or reckless omission of certain facts from his supporting affidavits. Defendants maintain that had these omissions been included in the original applications, the authorizing judge would have concluded that the wiretaps were not necessary either because the Government had sufficient evidence to obviate the need for electronic surveillance, or the Government had not yet pursued traditional investigatory techniques that might have yielded evidence without the need for a wiretap. In support of their requests that the Court convene a Franks hearing, Robinson and Price have submitted information they argue was omitted from the affidavits, and they contend that the inclusion of this allegedly material information would have vitiated Judge Vanaskie's finding of necessity. (Doc. Nos.617, 618.)

I. BACKGROUND

On April 7, 2005, the Government filed an application for authorization pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522 ("Title III"), to intercept wire communications of Derek Maes, Franklin Robinson, and approximately 17 other individuals over a cellular telephone used by Maes (this wiretap shall hereafter be referred to as "Maes-I").² On that same date, Judge Vanaskie of this Court entered an order authorizing the interception of calls to and from the identified telephone. On April 25, 2005, the United States sought and obtained an order from Judge Vanaskie modifying the original April-7 order. The United States filed 10-day reports with the Court on April 25, 2005 (covering the period from April 12 through April 21, 2005), May 5, 2005 (covering April 22 through May 1, 2005), and May 13, 2005 (covering May 2 through May 11, 2005).

On May 16, 2005, the Government filed an application for extension of the authorization to continue interception over the same cellular phone and named additional persons whose calls were expected to be intercepted in addition to those named in the original application (hereafter "Maes-II"). The United States filed reports with the Court summarizing the results of the investigation on June 7, 2005 (covering May- 16 through May 25, 2005), June 7, 2005 (covering May 26 through June 4, 2005), and on June 16, 2005 (covering June 5 through June 14, 2005). On June 14, 2005, the Title III intercept for this cellular phone was terminated. The tapes of the recorded conversations were sealed on June 16, 2005.

On July 20, 2005, the Government filed an application for authority pursuant to Title III to intercept wire communications of Franklin Robinson, Derek Maes, and approximately 30 other individuals over a cellular phone used by Robinson, as a continuation of the Maes wiretap (hereafter "Robinson-I").³ Judge Vanaskie authorized the wiretap on the same date. As with the Maes wiretap, the United States filed 10-day reports with the Court summarizing the nature of the intercepted telephone calls. On April 1, 2005, the United States filed its first such report (covering July 21 through July 30, 2005). The second 10-day report was filed on August 10, 2005 (covering July 31 through August 9, 2005). On August 17, 2005, the Government filed an application for authority to continue to intercept wire communication over this cell phone. Judge Vanaskie approved this request, authorizing the Government to continue intercepting calls to and from Robinson's cellular phone for an additional 30 days ("Robinson-II"). Following this authorization, the Government filed a third 10-day report on August 22, 2005 (covering August 10 through August 19, 2005). On August 30, 2005, the Government filed another 10-day report (covering August 20 through August 29, 2005). A fifth 10-day report was filed on September 7, 2005 (covering August 30 through September 7, 2005). The Government represents that in this report, it advised the Court that no pertinent calls had been intercepted between August 22, 2005, and September 7, 2005. On September 19, 2005, the United States filed a final report to advise that since August 22, 2005, Robinson's telephone had been shut down for non-payment of its bill. On September 22, 2005, the Court issued an order sealing the tapes of the calls intercepted from the tap of Robinson's cell phone.

II. DISCUSSION

A. Necessity

Defendants' first and primary argument in support of their motions to suppress the results of the Maes and Robinson wiretaps is that the Government failed to sustain its burden of demonstrating that electronic surveillance was necessary to the investigation into the criminal and conspiratorial activity alleged in the superseding indictment. Essentially, Robinson and Price both argue that at the time it sought the first wiretap in Maes-I, the Government had already developed substantial evidence amounting to probable cause that the Defendants had committed various crimes, and that because the Government was in possession of such evidence, there could have been no need to authorize wiretaps to develop further evidence. Additionally, Robinson and Price contend that the . United States failed to demonstrate that other less intrusive investigatory techniques would have been inadequate, and argue that such techniques could have been employed and would therefore have obviated the Government's stated need for the wiretaps in this case. In support of their arguments regarding necessity, Robinson and Price have requested that the Court hold a Franks hearing so that they may question Agent Stossel regarding various alleged factual omissions from his affidavits that Robinson and Price contend would have caused a reasonable jurist to conclude that the Government could not meet its burden of demonstrating necessity.

Before issuing an order authorizing a Title III wiretap, it is required that "the judge determine [] on the basis of the facts submitted by the applicant that ... normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or be too dangerous." 18 U.S.C. § 2518(3)(c). Title III's requirement that the Government demonstrate necessity is intended to ensure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). The Third Circuit has emphasized that Title III's necessity requirement does not mandate that the Government exhaust all other investigative procedures before resorting to electronic surveillance. United States v. Williams, 124 F.3d 411, 418 (3d Cir.1997). Instead, it is sufficient if there is evidence that "normal investigative techniques ... reasonably appear to be unlikely to succeed if tried." Id. (quoting 18 U.S.C. § 2518(3)(c)). To make such a showing, "[t]he government need only lay a `factual predicate' sufficient to inform the [authorizing] judge why other methods of investigation are not sufficient." United States v. McGlory, 968 F.2d 309, 345 (3d Cir.1992) (quoting United States v. Armocida," 515 F.2d 29, 38 (3d Cir.1975)). In determining whether this requirement has been satisfied, a court "may properly take into account affirmations which are founded...