United States v. Beasley
| Decision Date | 08 February 2016 |
| Docket Number | Case No. 13-10112-06-JTM,Case No. 13-10112-04-JTM,Case No. 13-10112-05-JTM,Case No. 13-10112-11-JTM,Case No. 13-10112-12-JTM,Case No. 13-10112-03-JTM,Case No. 13-10112-01-JTM,Case No. 13-10112-10-JTM,Case No. 13-10112-08-JTM,Case No. 13-10112-07-JTM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. GERALD BEASLEY, et al. Defendants. |
| Court | U.S. District Court — District of Kansas |
The defendants have filed a number of motions in the present criminal action presenting legal issues which the court finds may be resolved by the present Order.1 The court will schedule separate hearings to address the issues surrounding other motions presented by the defendants,2 as well as a hearing to address the admissibility of co-conspirator statements pursuant to United States v. James, 590 F.2d 575, 582 (5th Cir.1979).
Wiretap Motions
Evidence underlying the government's case was supplied in part my means of two authorized wiretaps. Wiretap Number 1 was directed at telephone number 316-409-4289, a cell phone issued to Gerald Beasley. The wiretap application was granted by Judge Eric Melgren, and the resulting warrant issued pursuant to 18 U.S.C. § 2518 authorized interception for 30 days. The interceptions occurred from March 26 to April 24, 2013. The affidavit by Special Agent Jason E. Fuller in support of the application for Wiretap No. 1 is 96 pages long.
Wiretap Number 2 was directed at telephone number 316-992-9165, a cell phone issued to Antoine Beasley. Pursuant to the warrant issued by Judge Melgren, investigators intercepted calls from May 8 to June 5, 2013. The 45-page affidavit in support of warrant was prepared by DEA Task Force Officer Kari Gourley.
Defendants challenge the interceptions conducted under both warrants pursuant to 18 U.S.C. § 2518(10)(a). (Dkt. 249, 251, 267). They argue that the warrants lacked probable cause, and also argue the wiretaps were not necessary, suggesting the police could have used "[t]raditional investigative techniques [which] include surveillance, infiltration or undercover work, questioning of participants, execution of search warrants, and the use of pen registers and trap-and-trace devices." See United States v. Verdin-Garcia, 516 F.3d 884, 889-890 (10th Cir.), cert. denied, 129 S. Ct. 161 (2008) ().
Probable cause for a wiretap exists where an affidavit establishes that a particular offense has been, is being or is about to be committed, and that conversations related to the offense will be intercepted. See United States v. Armendariz, 922 F.2d 602, 608 (10th Cir. 1990). A wiretap is deemed necessary if "traditional investigative techniques have been tried unsuccessfully, reasonably appear to be unsuccessful if tried, or are too dangerous to attempt." Ramirez-Encarnacion, 291 F.3d at 1222 (citing 18 U.S.C. §2518[1][c] and 2518[3][c]). Once a wiretap has been authorized by a judge, it is presumed proper and the burden is on the defendant to prove its invalidity. United States v. Radcliff, 331 F.3d 1153, 1160 (10th Cir. 2003).
Moreover, the necessity requirement for a wiretap is read "in a common sense fashion," under which the court "consider[s] all the fact and circumstances of the case." Ramirez-Encarnacion, 291 F.3d. at 1222 (internal quotations and citations omitted). The necessity mandate does not require the exhaustion of all possibilities; the government satisfies the necessity element if it "demonstrates either [that] normal investigatory techniques have been tried and failed or that they reasonably appear to be unlikely to succeed if tried, or to be too dangerous to try. United States v. Castillo-Garcia, 117 F.3d 1179, 1187 (10th Cir. 1997).
Defendants argue with respect to Wiretap No. 1 that the affidavit lacks any probable cause to believe the telephone was being used in connection with a criminal enterprise. (Dkt. 249 at 5-7). They argue much of the information in the application was remote in time, and the target telephone number was mentioned only a limited number of times. Theyfurther argue that the affidavit does not establish the necessity for a wiretap (id. at 9-21), because it fails to demonstrate that other investigative techniques were unavailable or unsuccessful, including the issuance of grand jury subpoenas, undercover investigations, physical surveillance, confidential sources, search warrants, "sneak and peak" warrants, fixed position cameras, or pen registers.
The application for Wiretap No. 1 relates the history of the alleged conspiracy involving defendant George Beasley in great detail, relating his activities in 45 separate factual allegations. A wiretap application cannot rest on dated or stale information. "The determination of timeliness, however, does not depend on simply the number of days that have elapsed between the facts relied on and the issuance of the warrant; instead, whether the information is too stale to establish probable cause depends on 'the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.'" United States v. Iiland, 254 F.3d 1264 (10th Cir. 2001) (quoting United States v. Snow, 919 F.2d 1458, 1459-60 (10th Cir. 1990)). Here, while many of these activities occurred more than one year before the application for warrant, (such as the indication by pen register that Beasley used the cell phone to arrange purchases of crack cocaine), the application otherwise documents the existence of an on-going, open-ended criminal enterprise. Thus, the affidavit notes that Beasley had deposited some $400,000 in the bank in the three previous years, even though he had no apparent means of legitimate income.
The affidavit establishes that the target telephone number was indeed one of the numbers Beasley used. An anonymous source reported that Beasley was cashing fakechecks, and that the source knew the target telephone number belonged to Beasley. Further, the police knew of a series of text messages between Beasley and Gerald Parker relating to the apparent creation of a fraudulent check. Only a few months before the application, Parker had called Beasley on the target cell phone, telling him to "clean up," apparently a reference to eliminating evidence of criminal activity, because "this mother fucker done told everything."
On February 13, 2013, also only a few months before the warrant application, a package of marijuana was mailed to 655 N. Estelle, Wichita, Kansas — a residence owned by RELTSUH ("hustler" spelled backwards) a company owned and controlled by defendants Gerald and Antoine Beasley.
As noted earlier, the warrant is presumptively valid, and the burden is on the defendants to show the warrant was issued without probable cause. Further, in reviewing a challenge to the probable cause for a warrant, the court does not substitute its own judgment for that of the issuing magistrate. Rather, the court reviews the affidavit for the purpose of determining whether the magistrate's finding of probable cause has a substantial basis in the affidavit. Illinois v. Gates, 462 U.S. 213, 238-39 (1983). The court finds that probable cause existed for the first wiretap warrant, and that the issuing magistrate's decision had a substantial basis in the facts set forth in the affidavit.
The defendants argue that probable cause does not exist with respect to Wiretap No. 2 for a variety of reasons. (Dkt. 251, at 7-14). They stress that the specific portion of the affidavit relating "to Antoine Beasley and his use of the Target Telephone #2 ... make upa mere 10 pages of the application." (Id. at 7). Otherwise, the defendants dispute the inferences to be drawn for portions of the affidavit. They contend that one of the telephone numbers (206-313-8054) identified in the affidavit as contacting Beasley's telephone is actually, according to a T-Mobile response to a defendant's subpoena, a MSRN routing number rather than a T-Mobile subscriber. (Id. at 10). Thus, according to defendants "[i]t appears to be nothing more than an unfortunate coincident [sic] that the number appeared in the Tennessee wiretap and the pen registers of Antoine Beasley." (Id.)
The court finds that the arguments advanced by the defendants fail to obscure the probable cause amply demonstrated in the affidavit's lengthy factual recitation. Regardless of the specific source behind the 206-313-8054 Tennessee routing number, the fact remains that the affidavit establishes strong support for inferring the existence of probable cause. Moreover, the defendants have done nothing to show that, at the time of the affidavit, investigating officers had any knowledge or reason to suspect that the Tennessee number was a routing source rather than one specific subscriber number.
More importantly, the nature of the 8054 calls supported a finding of probable cause. For example, a caller using the Tennessee number inquired from an associate, Larry Bailey, about the sale of "H" or heroin, with Bailey responding that "he is going to get some of that shit." On another occasion, the apparent 8054 caller told Bailey, "tell your brother I'm fixing to need them 200 today." The 200 is a reference to a drug traffic organization in Memphis, Tennessee, and the Memphis DEA Resident Officer reported that "Bailey's main supplier for cocaine [was] Antoine Beasley using Telephone #2." (Aff. ¶ 22).
The affidavit also relates the existence of other information indicating the maintenance of an ongoing drug trafficking operation, including the results of physical surveillance.
Special Agent Brian Alwes observed a Ford F-150, normally utilized by Antoine Beasley, arrive at 655 North Estelle and one of the occupants was observed carrying some sort of bag into the residence. The truck was than observed traveling to 1122 North Piatt, another known stash house. At 1122 North Piatt a passenger in the...
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