United States v. Degaule

Decision Date24 June 2011
Docket NumberCriminal Action No. 1:10–CR–0162–03–RWS.
Citation797 F.Supp.2d 1332
PartiesUNITED STATES of America v. Jacques DEGAULE, Defendant.
CourtU.S. District Court — Northern District of Georgia

OPINION TEXT STARTS HERE

Michael F. Smith, George Jeffrey Viscomi U.S. Attorney's Office, Atlanta, GA, for United States of America.

Larry David Wolfe, The Law Offices of L. David Wolfe, P.C., Ronald Leon Cundy, Rumsey & Ramsey, Atlanta, GA, for Defendant.

ORDER

RICHARD W. STORY, District Judge.

This case is before the Court for consideration of the Report and Recommendation (“R & R”) [294] of Magistrate Judge Russell G. Vineyard. After reviewing the Report and Recommendation and Defendant's Objections [303] thereto, the Court enters the following Order.

In his Objections to the R & R, Defendant asserts that the agents exceeded the scope of consent to search given by Defendant and seized items without probable cause to believe that those items were contraband or evidence of a crime. Defendant contends that he only consented to a search for particular items identified by the agents; i.e., documents that were, in Defendant's mind, related to J. Johnson. The Court finds that such a conclusion is not supported by the evidence. The R & R reviews the events related to Defendant's consent to search. This Court concurs in the conclusion in the R & R that Defendant gave a general consent to search and that his actions were consistent with that general consent. Further, the evidence shows that Defendant consented to the seizure of the items taken by agents. Therefore, Defendant's Objections on these grounds are OVERRULED.

Defendant also asserts that he invoked his right to remain silent, and the agents did not honor his invocation. The basis for Defendant's contention is that the agents did not complete the papers that Defendant gave them before questioning him. Defendant argues that the completion of the papers was a condition precedent to Defendant being interviewed. Such was clearly not the case. Defendant knew the agents had not completed the papers and yet consented to be interviewed and, in fact, was interviewed. Thus, Defendant did not treat the completion of the papers as a condition precedent to his giving an interview. Therefore, the conclusion in the Report and Recommendation that Defendant was advised of his Miranda rights and voluntarily waived those rights is correct.

Based on the foregoing, the Report and Recommendation is received with approval and adopted as the Opinion and Order of this Court. Accordingly, Defendant Degaule's Motion to Suppress Intercepted Communications [144] and Motions to Suppress Evidence and Statements [146 and 206] are DENIED.

ORDER FOR SERVICE OF FINAL REPORT, RECOMMENDATION, AND ORDER

RUSSELL G. VINEYARD, United States Magistrate Judge.

Attached is the Final Report, Recommendation, and Order of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and N.D. Ga. Cr. R. 58.1(A)(3)(a) and (b). Let the same be filed and a copy, with a copy of this Order, be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within fourteen (14) days of receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. Failure to object to this Report and Recommendation waives a party's right to review. Fed.R.Crim.P. 59(b)(2).

Pursuant to Title 18, U.S.C. § 3161(h)(1)(F), the above-referenced fourteen (14) days allowed for filing objections is EXCLUDED from the computation of time under the Speedy Trial Act, whether or not objections are actually filed. The Clerk is DIRECTED to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.

MAGISTRATE JUDGE'S FINAL REPORT, RECOMMENDATION, AND ORDER ON DEFENDANT'S PRETRIAL MOTIONS

Defendant Jacques Degaule (Degaule) is charged along with co-defendants Jiles Delwin Johnson (J. Johnson), Shannon Renee Johnson (S. Johnson), Mark Lamont Walker (“Walker”), Schawn Lemon Wortham (“Wortham”), Thallas Amie (“Amie”), and Laverne Simon (“Simon”), in a three-count superseding indictment. [Doc. 13]. Specifically, Degaule is charged in Count Two of the superseding indictment with conspiring to launder drug trafficking proceeds in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i)-(ii), and (h). [ Id.].1 Pending before the Court are Degaule's motion for disclosure of confidential informants, [Doc. 145], motion to suppress intercepted communications, [Doc. 144], and motions to suppress evidence and statements, [Docs. 146 & 206].2 The pending motions have been fully briefed, and are ready for ruling. For the following reasons, Degaule's motion for disclosure of confidential informants, [Doc. 145], is DENIED, and it is hereby RECOMMENDED that his motion to suppress intercepted communications, [Doc. 144], and motions to suppress evidence and statements, [Docs. 146 & 206], be DENIED.

I. DISCUSSION
A. Motion to Suppress Intercepted Communications, [Doc. 144]

Degaule moves to suppress evidence obtained as a result of four wiretap orders, [Doc. 144], which the government opposes, [Docs. 213 & 215]. For the reasons set forth herein, it is hereby RECOMMENDED that Degaule's motion to suppress, [Doc. 144], be DENIED.

1. Introduction
a. Statutory Framework for Intercepted Communications

Title III of The Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, sets forth numerous requirements the government must meet before electronic surveillance (wiretaps) may be authorized.” United States v. Flores, No. 1:05–cr–558–WSD–JFK, 2007 WL 2904109, at *21 (N.D.Ga. Sept. 27, 2007), adopted at *15. For example, pursuant to 18 U.S.C. § 2518, a wiretap application must include:

a full and complete statement of the facts and circumstances relied upon by the applicant ... including details as to the particular offense ..., a particular description of ... the type of communications sought to be intercepted, the identity of the person ... whose communications are to be intercepted, and a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

United States v. Gonzalez Perez, 283 Fed.Appx. 716, 720 (11th Cir.2008) (per curiam) (unpublished) (quoting 18 U.S.C. § 2518(1)(b), (c)) (internal marks omitted) (alterations in original). See also United States v. Woodley, No. CR408–315, 2009 WL 3415214, at *1 (S.D.Ga. Oct. 22, 2009), adopted at *1.

Upon a proper application, a district judge may issue an ex parte order authorizing the interception of wire communications if: “the judge finds probable cause to believe that an individual is committing or has committed a qualifying offense; that particular communications concerning that offense will be obtained through such interception; and that the facilities from which, or the place where, the communications are to be intercepted are being used in connection with the offense, or are leased to, listed in the name of, or commonly used by such person.” United States v. Duarte–Rosales, Criminal File No. 1:05–CR–197–6–TWT, 2008 WL 140665, at *2 (N.D.Ga. Jan. 11, 2008), adopted at *1 (citing 18 U.S.C. § 2518(3)(a), (b) and (d)). See also United States v. Robles, 283 Fed.Appx. 726, 734–35 (11th Cir.2008) (per curiam) (unpublished). “Probable cause for a wiretap is the same probable cause required for a search warrant,” Duarte–Rosales, 2008 WL 140665, at *2, and [l]ike other types of warrants, probable cause must exist at the time surveillance is authorized,” Flores, 2007 WL 2904109, at *21 (citing United States v. Domme, 753 F.2d 950, 953 (11th Cir.1985)). [A] wiretap order is presumed to be valid, and a defendant has the burden of overcoming the presumption and of proving that the wiretap order was unlawfully obtained.” Id. at *22 (citations omitted). This Court need merely determine whether the judge who signed the warrant had a substantial basis for concluding that probable cause existed.” Duarte–Rosales, 2008 WL 140665, at *2 (citations omitted).

b. The Wiretap Applications and Supporting Affidavits

i. Initial Wiretap Application for Target Telephone 1

On November 20, 2009, upon an application and 109–page affidavit submitted by Drug Enforcement Administration (“DEA”) Special Agent Mario Lijoi (“Agent Lijoi”), the Honorable Richard W. Story (“Judge Story”), United States District Judge, entered an order authorizing the interception of wire communications over Target Telephone 1 (“TT1”), which was described as a U.S. Sprint cellular phone (assigned the telephone number of (678) 414–5114) subscribed to S. Johnson, and believed to have been used by J. Johnson. See [Ex. A attached under seal to the government's consolidated response].3 The order also authorized the receipt of location data for TT1 pursuant to Federal Rule of Criminal Procedure 41. [Ex. A, Order at 7–8].

In his affidavit in support of the application for the wiretap, Agent Lijoi provided background information regarding the investigation of drug trafficking and money laundering activities of a specific drug trafficking organization (“DTO”), which began in October of 2007. [Ex. A, Lijoi Aff. at 12–81]. 4 Agent Lijoi relayed that based on “seizures of drugs and drug proceeds, debriefings of confidential sources, phone toll analysis, bank record analysis, travel records analysis, credit card expenditures analysis, public record searches, surveillances and other investigative techniques,” he had discovered that the DTO was headed up by an Atlanta-based...

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