United States v. Glover

Citation736 F.3d 509
Decision Date08 November 2013
Docket Number10–3048,Nos. 09–3087,10–3066.,s. 09–3087
PartiesUNITED STATES of America, Appellee v. Lonnell GLOVER, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

OPINION TEXT STARTS HERE

Appeals from the United States District Court for the District of Columbia (No. 1:09–cr–00129).

Robert S. Becker, appointed by the court, argued the cause and filed the joint brief for appellant Jonathan Wright.

Adam H. Kurland, appointed by the court, argued the cause and filed the joint brief for appellant Lonnell Glover.

John P. Gidez, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Anthony F. Scarpelli, and John K. Han, Assistant U.S. Attorneys.

Before: BROWN, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge SILBERMAN.

SILBERMAN, Senior Circuit Judge:

Appellants Lonnell Glover and Jonathan Wright were convicted of conspiring to possess and distribute more than five kilograms of cocaine. They appeal on a number of grounds. We agree that with respect to one of their claims their convictions must be reversed; the district court erroneously admitted evidence obtained pursuant to a “facially insufficient” warrant.

I.

Although the convictions in this case were for a conspiracy to distribute cocaine, the FBI's initial investigation was directed at Glover's distribution of PCP and heroin. The FBI obtained a warrant to tap Glover's cell phone, but Glover was careful to speak only in code when using the cell phone. It was noticed, however, that Glover had frequent meetings in his truck, so the FBI obtained a warrant from Judge Collyer of the District Court for the District of Columbia to place an audio recording device in the truck. Unfortunately, the truck was parked at the Baltimore BWI Airport, and the FBI's affidavit in support of the warrant made that plain. Nevertheless, the warrant explicitly stated that FBI agents could forcibly enter the truck, regardless of whether the vehicle was located in the District of Columbia, District of Maryland, or the Eastern District of Virginia.

The bug worked. Glover was recorded discussing his PCP-heroin business, as well as his plans to use funds from that business to begin distributing cocaine. The cocaine—which was to come from a Bahamian known as “Foot”—would be driven to Washington from Florida. Jonathan Wright was also overheard in the truck, taking part in the conspiracy by joining Glover's plans to import the cocaine from the Bahamas.

The cocaine conspiracy began to unravel in June of 2007, when another co-conspirator was apprehended at Miami International Airport, attempting to smuggle large quantities of cash into the Bahamas. A few weeks later, on June 19, Glover was arrested in connection with his earlier PCP and heroin-related activities. Wright was finally arrested for his role in the cocaine conspiracy on May 14, 2008.

Glover was charged and convicted on PCP charges in a separate trial. Both appellants, however, were indicted for the cocaine conspiracy. The district judge held that the government had violated the Speedy Trial Act, and dismissed the indictments without prejudice. But the government reindicted appellants and they were then convicted by a jury. This appeal followed.

II.

Although we reverse the conviction based on a defective warrant, that would still permit a new trial (assuming the government has adequate non-tainted evidence), so it is necessary to confront, at the outset, appellants' argument that their indictment should have been dismissed because of the government's violation of the Speedy Trial Act or—in the case of Wright—a related claim that the Sixth Amendment was violated.

The Speedy Trial Act requires a trial court to dismiss an indictment when the government fails to bring the defendant to trial within 70 days, not counting certain “excludable days.” 18 U.S.C. § 3162(a)(2). The district judge determined—and this is undisputed—that the government had, indeed, violated the Act; accordingly, he dismissed the indictments. Appellants argue that the court erred, however, in dismissing the indictments without prejudice.

The Act lists certain (non-exclusive) factors that a trial court must consider in determining whether to dismiss an indictment with or without prejudice. Those are: “the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” Id.

But our review is limited; we can reverse the trial court's decision only for an abuse of discretion. [W]hen the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court's judgment of how opposing considerations balance should not lightly be disturbed.” See United States v. Taylor, 487 U.S. 326, 337, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). We easily conclude the district judge's decision meets that standard.

Appellants argue that their crime was not “serious,” that the judge placed undue emphasis on the inadvertent nature of the government's violation, and that a dismissal without prejudice undermines the deterrent effect of the Act. These contentions are rather flimsy, and are, therefore, rejected. See United States v. Wright, 6 F.3d 811, 814 (D.C.Cir.1993) (concluding that conspiracy to distribute fifty grams of cocaine is a serious offense, that the inadvertence of the government's violation of the Act is a relevant factor, and that deterrencedoes not require dismissal with prejudice in all cases).

We also reject Wright's separate claim that even if the Speedy Trial Act was not violated, the Sixth Amendment was. The district court properly considered the four factors it was required to balance: “whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result.” Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The court assumed arguendo that the delay was long, but noted that part of the delay was attributed to defendant and, most important, that the defendant had not shown that his defense was prejudiced because of the delay.1

Which brings us to the core issue in this case—the allegedly illegal warrant. Appellants argue that the warrant was, in the language of the statute, “insufficient on its face” because it was signed by Judge Collyer, in the District of Columbia, authorizing the FBI to place the electronic bug in Glover's truck parked in Maryland—outside of the district court's jurisdiction. The government contends that it is perfectly permissible for a district judge to authorize the placement of such an electronic listening device on a vehicle anywhere in the United States.

Appellants point to both Title III of the Omnibus Crime Control and Safe Streets Act of 1968,2 which authorizes wiretaps or electronic bugs, as well as Rule 41 of the Federal Rules of Criminal Procedure, which partially implements the statute. But before discussing the statute and Rule 41 we are obliged to deal with the government's argument that our review should be limited to plain error because appellants never raised the jurisdictional objection to the truck bug. Although Glover's written motion to exclude the truck bug evidence before Judge Hogan 3 did not object to the warrant's alleged jurisdictional defect, at oral argument counsel seems to have asked that the motion be amended to include that ground for objection:

I would again move to amend the motion to include the ... truck bu [g].... I think ... that the requirements of ... 41(b) apply.... [T]he judge did not have the authority to issue a warrant to apply a device on a vehicle that's outside her jurisdiction.

(Trial Tr. at 4–7, Sept. 10, 2008).

Admittedly, much of counsel's argument was focused on the device's integrated GPS feature and related Fourth Amendment concerns, which explains why Judge Hogan apparently did not perceive that counsel was also objecting to the facial sufficiency of the warrant. Although an argument need not be made in a written submission to be preserved for review, see Fraternal Order of Police v. United States, 173 F.3d 898, 902 (D.C.Cir.1999), counsel should, of course, make every effort to ensure that their arguments are clearly presented. The reason we require counsel to preserve arguments is to ensure that the district court has the opportunity to pass on those arguments in the first instance. This purpose is undermined if important arguments are not clearly presented. Ultimately, however, we need not decide whether the argument was preserved, because we find that appellants have demonstrated plain error. See infra; In re Sealed Case, 573 F.3d 844, 847 (D.C.Cir.2009) (A defendant's conviction may be reversed, even when he failed to preserve an argument, if he demonstrates plain error.).

The statute specifies that [w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any ... proceeding ... if the disclosure of that information would be in violation of this chapter.” 18 U.S.C. § 2515. The statute further specifies that an

aggrieved person ... may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.

Id. § 2518(10)(a) (...

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