United States v. Brunson

Decision Date31 July 2020
Docket NumberNo. 18-4696,18-4696
Parties UNITED STATES of America, Plaintiff - Appellee, v. Joey Lamond BRUNSON, a/k/a Flex, Defendant - Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: David Bruce Betts, Columbia, South Carolina, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sherri A. Lydon, United States Attorney, Columbia, South Carolina, J.D. Rowell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Denver, Colorado, for Appellee.

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Wilkinson joined. Judge Motz wrote a dissenting opinion.

NIEMEYER, Circuit Judge:

Joey Brunson, the defendant in this criminal prosecution, challenges the legality of three orders authorizing wiretaps on the ground that the orders did not, on their face, sufficiently identify the persons authorizing the applications for the orders, as required by law. The district court denied his motion to suppress evidence obtained from the wiretaps, and the evidence was used to convict Brunson of numerous drug-trafficking and related crimes.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("the Wiretap Act"), 18 U.S.C. § 2510 et seq. , authorizes federal judges to issue orders approving wiretaps when detailed statutory requirements are met. And it provides that when certain specified requirements are not met, the contents of any intercepted communications and evidence derived from them must be suppressed. Id . §§ 2518(4)(a)(e); § 2518(10)(a).

The Wiretap Act authorizes the Attorney General and various other designated officials in the Department of Justice, including any Deputy Assistant Attorney General in the Criminal Division or National Security Division, to apply for a wiretap order, and it requires that the application for the order include the "identity of ... the officer authorizing the application," 18 U.S.C. § 2518(1)(a), and also that the order authorizing the wiretap "specify ... the identity of the agency authorized to intercept communications, and of the person authorizing the application," id . § 2518(4)(d). Failing the inclusion of this information, the order becomes "insufficient," and evidence obtained from the wiretap must be suppressed. See id . § 2518(10)(a)(ii).

In this case, the government identified in each application for a wiretap order the senior Justice Department official by title and name who authorized the application, but in each proposed order that it submitted to the district court, it included only the title, not the name of the official. Each order stated that the application for the order was authorized by "an appropriate official of the Criminal Division, United States Department of Justice, Deputy Assistant Attorney General, pursuant to the power delegated to that official by special designation of the Attorney General." The district court signed the order as submitted.

Brunson contends that because the orders did not include the name of each authorizing official, the orders were statutorily insufficient and therefore all evidence derived from them should have been suppressed. Accordingly, he argues that the district court erred in denying his motion to suppress.

We conclude that the wiretap orders were sufficient under the Wiretap Act because (1) the applications were in fact appropriately authorized by persons authorized by the Wiretap Act; (2) the orders on their face identified, albeit not by name, the Justice Department officials who authorized the applications; (3) the applications themselves, to which the orders on their face referred, did contain both the title and name of the official authorizing the application; and (4) the applications and proposed orders were submitted together as one package to the judge who signed the orders and later to Brunson, whose communications were intercepted, such that both the judge and Brunson actually knew both the title and name of the official authorizing each application. In addition, even if we were to assume that the omission of the name of the authorizing official in the orders was a defect, it would not be the type of defect that rendered the orders "insufficient" under § 2518(10)(a)(ii). Therefore, we conclude that the district court did not err in denying Brunson's motion to suppress.

I

Joey Brunson was charged with participation in a drug-trafficking conspiracy in South Carolina and related crimes. In particular, the second superseding indictment, which the grand jury returned in March 2017, charged Brunson in Count 1 with conspiracy to traffic five kilograms or more of cocaine and an additional quantity of crack cocaine, in violation of 21 U.S.C. § 846 ; in Counts 2–7, with using a telecommunications facility for drug trafficking, in violation of 21 U.S.C. § 843(b) ; in Count 8, with conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) ; in Count 9, with possession of cocaine and marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) ; in Count 10, with transporting a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) ; in Count 11, with possession of a firearm in furtherance of drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) ; and in Count 12, with perjury, in violation of 18 U.S.C. § 1621.

In 2013, during the investigation that led to Brunson's indictment, the government sought judicial authorization under the Wiretap Act to intercept calls and texts over specified telephones. The first application for a court order disclosed that it was authorized by Deputy Assistant Attorney General Denis J. McInerney, and the district court issued the government's proposed order on July 31, 2013, authorizing the requested wiretaps. The order stated that it was entered "pursuant to an application authorized by an appropriate official of the Criminal Division, United States Department of Justice, Deputy Assistant Attorney General, pursuant to the power delegated to that official by special designation of the Attorney General," but the order did not include the official's name. Pursuant to the order, the FBI intercepted various wire communications, including one on August 6, 2013, to which Brunson was a party and which became the basis for Count 2.

In a second application submitted to extend the district court's first order, the government used the same form as the first application except that it disclosed that the application was authorized by Deputy Assistant Attorney General Paul M. O'Brien. Again, the proposed order that the district court signed on August 29, 2013, included O'Brien’s title but not his name. Pursuant to the order, the FBI intercepted additional wire communications, including one on September 3, 2013, to which Brunson was a party and evidence of which was presented at trial but did not form the basis for any substantive count.

Finally, the government submitted a third application to extend the district court's second order, and again the application was in the same form as the previous two applications, except that it disclosed that the application was authorized by Acting Assistant Attorney General Mythili Raman. Again, the proposed order that the district court signed on October 11, 2013, confirmed that the application had been authorized by an appropriate official, but did not include Raman's name. Pursuant to that order, the FBI intercepted wire communications, to which Brunson was a party, between October 11 through October 24, 2013, which became the basis for Counts 3 through 7.

Brunson filed a pretrial motion to suppress the evidence obtained from the intercepted communications on the ground that each of the district court's orders authorizing the interceptions failed to include the name of the official authorizing the application, and thus each order was "insufficient on its face," as that phrase is used in 18 U.S.C. § 2518(10)(a)(ii). The district court denied the motion on the ground that the wiretap orders substantially complied with the Wiretap Act because they were based on and referred to the applications, which identified the authorizing officials both by title and name.

The jury thereafter convicted Brunson on all 12 counts of the indictment.

Several months after Brunson was convicted, he filed a motion for a new trial based on the intervening Supreme Court decision in Dahda v. United States , ––– U.S. ––––, 138 S. Ct. 1491, 200 L.Ed.2d 842 (2018), in which the Supreme Court upheld as facially sufficient wiretap orders that illegally authorized the interception of communications outside the district court's territorial jurisdiction. In its opinion, the Court explained that an order would be facially insufficient if, for example, it "lack[ed] information that the wiretap statute [in §§ 2518(4)(a)(e) ] require[d] it to include" but that the district court's territorial jurisdiction was not required to be included in wiretap orders. Dahda , 138 S. Ct. at 1499–1500.

The district court denied Brunson's motion for a new trial, ruling first that the motion was untimely, as it was filed four months after Brunson's conviction, and second, that the Supreme Court's holding in Dahda did not disturb its pretrial ruling denying Brunson's motion to suppress. In addition, the court noted that even though the wiretap orders did not include the names of the officials authorizing the application, the orders referred to the applications, which did include the names.

On September 24, 2018, the district court sentenced Brunson to life plus 60 months’ imprisonment. From the district court's judgment dated September 25, 2018, Brunson filed this appeal, contending that the district court erred in denying his ...

To continue reading

Request your trial
16 cases
  • Pinson v. U.S. Dep't of Justice
    • United States
    • U.S. District Court — District of Columbia
    • January 8, 2021
    ... ... U.S. DEPARTMENT OF JUSTICE, et al., Defendants. Civil Action No. 12-1872 (RC) United States District Court, District of Columbia. Signed January 8, 2021 514 F.Supp.3d 235 Elizabeth J ... ...
  • United States v. Kesari
    • United States
    • U.S. District Court — Southern District of West Virginia
    • August 25, 2021
    ...of orders to allow the interception of wire, oral, or electronic communications" in 18 U.S.C. §§ 2516 and 2518.8 United States v. Brunson, 968 F.3d 325, 330 (4th Cir. 2020). It has not been asserted that such procedures were complied with here, and the January 9, 2019 application and order ......
  • Mack v. Yost
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 4, 2020
    ... ... 18-3504 United States Court of Appeals, Third Circuit. Argued April 23, 2020 Opinion Filed: August 4, 2020 Sarah ... ...
  • United States v. Taylor
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 5, 2022
    ...conduct was lawful. Davis v. United States , 564 U.S. 229, 238, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) ; see also United States v. Brunson , 968 F.3d 325, 334 (4th Cir. 2020). This "good faith exception" has been applied to evidence obtained "in objectively reasonable reliance upon a statut......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT