United States v. Jones

• Decision Date: 10 August 2006
• Docket Number: Criminal No. 05-0386 (ESH).
• Citation: 451 F.Supp.2d 71
• Parties: UNITED STATES of America, v. Antoine JONES, et al., Defendant.
• Court: U.S. District Court — District of Columbia

451 F.Supp.2d 71

UNITED STATES of America, v. Antoine JONES, et al., Defendant.

Criminal No. 05-0386 (ESH).

United States District Court, District of Columbia.

August 10, 2006.

COPYRIGHT MATERIAL OMITTED

A. Eduardo Balarezo, Law Offices of A. Eduardo Balarezo, Brian Keith McDaniel, McDaniel & Associates, Elita C. Amato, Shaffer, Boch and Antonopolos, Diane S. Lepley, Joseph Roll Conte, H. Heather Shaner, Washington, DC, Fred A. Kowalski, Noe Domingo Garza, Jr., Brownsville, TX, for Defendants.

Rachel Carlson Lieber, John V. Geise, U.S. Attorney's Office, Washington, DC, for United States of America.

MEMORANDUM OPINION

HUVELLE, District Judge.

Before the Court are a series of motions, filed by Defendant Jones, to suppress evidence found in vehicles and at Levels nightclub, evidence obtained from a mobile tracking device, from the seizure of electronic communications, and from the interception of wire communications. Defendant also seeks discovery regarding coconspirator statements, a preliminary determination of the conspiracy and a pretrial ruling on the admissibility of co-conspirator statements.¹

BACKGROUND

Defendants Antoine Jones, Adrian Jackson, Michael Huggins, Kevin Holland and Kirk Carter are charged in a 34-count Superseding Indictment (the "Indictment"). All defendants are charged with Conspiracy to Distribute and Possess with Intent to Distribute 5 Kilograms or more of Cocaine and 50 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 846 (Count One), and with various individual counts of Use of a Communication Facility to Facilitate a Drug Trafficking Offense, in violation of 21 U.S.C. § 843(b) (Counts Five through Thirty-Four). In addition, Jones is charged with two counts of Unlawful Possession with Intent to Distribute Cocaine or Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) (Count Two), and 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count Three), and Jackson is charged with Using, Carrying, Brandishing, and Possessing a Firearm During a Drug Trafficking Offense, in violation of 18-U.S.C. § 924(c)(1)(A)(ii) (Count Four).

As alleged in the Indictment, from at least sometime in 2003 through October 24, 2004, defendants and their co-conspirators acquired, repackaged, stored, processed, sold, and redistributed large quantities of cocaine and cocaine base, in the District of Columbia, the States of Maryland and Texas, the Republic of Mexico and elsewhere. It is further alleged that Jones was the primary supplier of cocaine and cocaine base to members of the, organization in the District of Columbia and in the State of Maryland.

As part of their investigation into the alleged conspiracy, law enforcement agents utilized a number of investigative techniques, including surveillance, informants, installation of an electronic tracking device on Jones' vehicle, search warrants issued to electronic communication service providers for text messages to or from cellular telephones used by Jones and an alleged co-conspirator, and a Title III wire intercept. The covert portion of the investigation ended on October 24, 2005, with searches pursuant to warrants and arrests. At that time, drugs, drug paraphernalia, firearms, and significant quantities of cash were seized from the homes of a number of the defendants, as well as from an alleged "stash house" in Fort Washington, Maryland where 97 kilograms of cocaine, 3 kilograms of crack cocaine, and in excess of $800,000 was found. (Government's Omnibus Response to Defendant's Legal Motions ["Gov't's Omnibus Opp'n"] at 5.) The evidence the government, intends to introduce at trial includes, inter alia, items seized on October 24, 2005; a number of conversations intercepted pursuant to Title III wiretap orders, and the testimony of individuals who were allegedly part of Jones' drug organization.² (See id.)

I. Motion to Suppress Evidence Obtained From Interception of Wire Communications and Seizure of Electronic Communications

Jones first moves to suppress evidence obtained from the interception of wire communications (telephone conversations) to or from his cellular telephone and the seizure of electronic communications (text messages) to or from both his cellular telephone and the cellular telephone of an alleged co-conspirator Lawrence Maynard. (See Defendant's Motion to Suppress Evidence Obtained From Interception of Wire Communications and Seizure of Electronic Communications ["Det's Mot. to Suppress Evid."].) The text messages were held in storage by two electronic communication service providers at the time of their acquisition by the government. In support of his motion, Jones argues that (1) the affidavits submitted by FBI Special Agent Stephanie Yanta in support of the text message search warrants and the wire intercept violated both the probable cause and necessity requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the "Wiretap Act"), 18 U.S.C. 2510 et seq.; (2) Special Agent Yanta intentionally misled the authorizing court and demonstrated a reckless disregard for the truth in setting forth the factual allegations in her supporting affidavits; and (3) the government impermissibly failed to minimize the intercepted wire communications. In connection with his claim that the affidavits contained deliberate, material misstatements, Jones also seeks a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).³ For the reasons explained herein, all of Jones' arguments are without merit.

A. The Text Message Affidavits

On August 10, 2005, and again on August 18, 2005, Magistrate Judge Alan Kay issued search warrants to two electronic communication service providers for stored text messages that had been transmitted over cellular telephones used by Jones and Maynard. In support of the search warrants, the government submitted affidavits sworn to by Special Agent Yanta (the "August 10th Affidavit" and the "August 18th Affidavit"). In response to the search warrants, the companies provided a significant number of text messages to the government, which, in turn, referenced several of the messages in the affidavit in support of the first wiretap. (See Gov't's Omnibus Opp'n at 7.)

1. Governing Law

Jones' argument that the affidavits submitted in support of the text message search warrants violated certain requirements of the Wiretap Act fails as a matter of law because the Wiretap Act does not apply to the government's acquisition of text messages held in storage at electronic communication service providers. First, as amended by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, Title I, 100 Stat. 1848 (Oct. 21, 1986), the Wiretap Act applies only to the "interception" of wire, oral or electronic communications. An "intercept" is defined in the Wiretap Act as "the aural or other acquisition of the contents of any wire, electronic, or oral communication though the use of any electronic, mechanical or other device." Id. § 2510(4) (emphasis added). The text messages here were supplied to the government by electronic communication providers in response to search warrants issued to companies. The messages, therefore, were not acquired by the government "through the use of any electronic, mechanical or other device." As a result, the government's acquisition of the text messages did not involve an "intercept" within the meaning of the Wiretap Act.

Moreover, while . Jones accurately asserts that text messages constitute "electronic communications" within the meaning of the Wiretap Act (see Def.'s Mot. to Suppress Evid. at 5), this assertion gets him nowhere. Courts consistently have held that the Wiretap Act governs only the acquisition of the contents of electronic communications that occur contemporaneous with their transmission, and not—as is the case here—the subsequent acquisition of such communications while they are held in electronic storage by third parties. See, e.g., United States v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir.2003) (holding that "a contemporaneous interception—i.e., an acquisition during Ilight'—is required to implicate the Wiretap Act with respect to electronic communications"); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (holding that "for [an electronic communication] to be `intercepted' in violation of the Wiretap Act, it must be acquired during transmission, not while it is in electronic storage"); Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 462 (5th Cir.1994) (analyzing statutory text and legislative history and concluding that "Congress did not intend for `intercept' to apply to `electronic communications' when those communications are in `electronic storage' "); see also See Clifford S. Fishman & Anne T. McKenna, Wiretapping and Eavesdropping § 2:5 (West, 2d ed. 1995) ("An interception [of an electronic communication] occurs . . . only if the contents are acquired as the communication takes place, not if they are acquired while the communications are in storage.").

Instead, the relevant statutory provision governing searches and seizures of stored electronic communications, such as the text messages at issue here, appears in Title II of the Electronic Communications Privacy Act of 1986 (the "Stored Communications Act"), 18 U.S.C. § 2701 et seq. See Fishman & McKenna, supra, § 26:1 (the Stored Communications Act "spells out the circumstances in which the government may obtain access" to the contents of stored wire or electronic communications.) In pertinent part, it provides that:

A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the...