U.S. v. Suggs
| Decision Date | 16 January 2008 |
| Docket Number | Criminal No. 07-00152 (ESH). |
| Citation | 531 F.Supp.2d 13 |
| Parties | UNITED STATES of America, v. Anthony Maurice. SUGGS, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Anthony F. Scarpelli, William John O'Malley, Jr., U.S. Attorney's Office, Washington, DC, for Plaintiff.
John Anthony Briley, Jr., Manuel J. Retureta, Retureta & Nassem, PLLC, James
W. Rudasill, Jr., Washington, DC, for Defendants.
Before the Court are two motions: (1) defendant Price's motion to sever his case from that of the other defendants, or in the alternative, to sever certain counts in the indictment and (2) defendants' motion to suppress the evidence obtained through electronic surveillance conducted on a telephone belonging to defendant Suggs. For the reasons stated herein, defendant Price's motion to sever will be granted in part and denied in part, and defendants' motion to suppress the evidence obtained through electronic surveillance will be denied.
Defendants Anthony. Maurice Suggs, James Lawrence Parker, Ernest Milton Glover, Glendale Earl Lee, and Helery Price are charged in a 10-count Superseding Indictment (the. "Indictment."). The Indictment alleges that from sometime on Or around August 1, 2005, and continuing until at least June 11, 2007, defendants and others conspired to possess with intent to distribute large quantities of PCP in the District of Columbia, Maryland, Georgia, Missouri, California, and elsewhere. Much of the evidence in this case was gathered through electronic surveillance conducted pursuant to eleven court orders issued by the Honorable Rosemary M. Collyer of this Court.1 They resulted in the interception of 26,444 separate activations and 21, 183 completed calls. This investigation also resulted in a second related indictment in United States v. Lonnell Glover, Crim. No. 07-153, which now charges. 16 defendants in a superceding indictment with one count of conspiracy involving the distribution and possession with intent to distribute one kilogram or more each of PCP and heroin and charges certain individual defendants with thirteen substantive drug and gun offenses.
The Suggs Indictment charges all defendants with Conspiracy to Possess with Intent to Distribute One Kilogram or More of Phencyclidine, in violation of 21 U.S.C. § 846 (Count 1). There are also nine substantive counts against individual defendants. Defendant Ernest Glover is charged with Unlawful Possession with Intent to Distribute Phencyclidine in violation of, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); Unlawful Possession of Heroin in violation of 21 U.S.C. § 844; and two counts of Unlawful Possession of a Firearm by a Person Convicted of a Crime Punishable by Imprisonment for One Year in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant Suggs is charged with Unlawful Possession with Intent to Distribute One Kilogram or More of Phencydidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iv); Unlawful Distribution of Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and two counts of Unlawful Distribution of Phencyclidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Defendant Parker is charged with Unlawful Distribution of Phencyclidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The Indictment also includes a Forfeiture Allegation against all defendants.
Defendants move to suppress all evidence obtained through electronic surveillance conducted on a telephone belonging te Suggs. In support of their motion, defendants argue that (1) the continuation of the wiretap past the first thirty days violated the necessity requirement of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act"), 18 U.S.C. § 2510 et seq., and (2) the government impermissibly failed to minimize the intercepted wire communications.
The government's interception of phone calls is governed by the Wiretap Act. It requires that an application for the interception of certain oral, wire, or electronic communications shall be in writing, under oath, and shall contain certain information including a "full and complete statement of the facts and `circumstances relied upon by the applicant[] to justify his belief that an order should be issued." Id. § 2518(1). On the basis of the facts submitted by the applicant, a district court may authorize a wiretap upon finding that (1) probable cause exists to believe that an individual has committed or Is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that "particular communications concerning that offense will be obtained" through an interception; (3) "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried"; and (4) probable `cause exists to believe that the communication facility sought to be wiretapped "[is] being used, or [is] about to be used; in connection with the commission of [the] offense." Id. § 2518(3)(a)-(d); see also United States v. Donovan, 429 U.S. 413, 435, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). The determination that "normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous," 18 U.S.C. § 2518(3)(e), is referred to as the "necessity requirement," which is the "keystone of congressional regulation of electronic eavesdropping." United States v. Williams, 580 F.2d 578, 587-88 (D.C.Cir.1978). "An issuing judge's finding of necessity is reviewed for abuse of discretion." United States v. Eiland, 398 F.Supp.2d 160, 173 (D.D.C.2005).
The statute also requires that "[e]very [wiretap] order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable [and] shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception...." 18 U.S.C. § 2518(5). This is referred to as the "minimization requirement." The minimization requirement "spotlights the interest in confining intrusions as narrowly as possible so as not to trench impermissibly upon the personal lives and privacy of wiretap targets, and those who, often innocently, come into contact with such suspects." United States v. Hoffman, 832 F.2d 1299, 1307 (1st Cir.1987). Although "[t]he statute does not forbid the interception of all nonrelevant conversations," the government must make reasonable efforts to "minimize" the interception of such conversations. Scott v. United States, 436 U.S. 128, 139-40, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).
Although defendants have conceded that" the government demonstrated probable cause and necessity in the initial wiretap application, they contend that the wiretap should not have been extended beyond the initial thirty-day period. (Defs'. Mot. to Suppress at 9.) They argue that by the, end of the first thirty days, the major purposes of the wiretap had been achieved, and any further investigation could have been done through other means.
Congress created the necessity requirement 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). Thus, a court should "give close scrutiny" to a contested "wiretap application" and "reject generalized and:conclusory statements that other investigative procedures would prove unsuccessful." Williams, 580 F.2d at 588. Because, however, the "statutory command was not designed to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, the government will meet its burden of demonstrating necessity if it shows that other techniques are impractical under the circumstances and that it would be unreasonable to require pursuit of these avenues of investigation." United States v. Carter, 449 F.3d 1287, 1293 (D.C.Cir.2006) (citation and internal quotation marks omitted). Furthermore, the fact that a wiretap has previously been productive does not automatically mean that continued surveillance is no longer "necessary." "The necessity requirement is not meant to work as an impediment to making a good' case better, or a strong case airtight." United States v. Jones, 451 F.Supp.2d 71, 83 (D.D.C.2006).
After a careful review of the lengthy affidavits that were submitted to Judge Collyer, the Court concludes that defendants' argument must be rejected. Each affidavit summarized the information obtained as result of the wiretap surveillance and provided a detailed update on the progress of the investigation. Each affidavit then specified the kinds of information that the investigators expected to obtain through continued electronic surveillance, together with a explanation of why other investigative techniques would be unlikely to disclose these types of information about the Suggs/Glover operation.
For example, in the sealed affidavit filed on February 8, 2007, in support of the first extension, the affiant explains that although the source of the organization's supply of cocaine appeared to be in the Houston, Texas area, the investigation had not yet been able to determine how the cocaine was entering the United States and how and by whom it was being transported to the Washington D.C. area. The affiant also explained that although Lonnell Glover had been identified as a source of PCP for Suggs, the investigation had not yet been able to determine where the PCP distributed by the organization was manufactured or how it was transported into the Washington D.C. area. The affiant also addressed the issue of why other forms of investigation, i.e., controlled buys,...
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