United States v. Scurry, 12–3104

• Decision Date: 08 April 2016
• Docket Number: No. 12–3104,No. 13–3055,No. 12–3109,No. 12–3105,No. 13–3068,12–3104,12–3105,12–3109,13–3055,13–3068
• Citation: 821 F.3d 1
• Parties: UNITED STATES of America, Appellee v. Eric SCURRY, also known as E, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

821 F.3d 1

UNITED STATES of America, Appellee

v.Eric SCURRY, also known as E, Appellant.

No. 12–3104

No. 12–3105

No. 12–3109

No. 13–3055

No. 13–3068

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 3, 2015.

Decided April 8, 2016.

Rehearing En Banc Denied July 20, 2016.

Jonathan S. Zucker, appointed by the court, argued the cause for appellants Robert Savoy, et al. Dennis M. Hart, appointed by the court, argued the cause for appellant Eric Scurry. With them on the joint brief were Pleasant S. Brodnax III, Howard B. Katzoff, and Mark Diamond, all appointed by the court.

Daniel J. Lenerz, Attorney, U.S. Attorney's Office, argued the cause for appellee. On the brief were Vincent H. Cohen Jr., Acting U.S. Attorney, and Elizabeth Trosman, David B. Goodhand, and Arvind K. Lal, Assistant U.S. Attorneys. Elizabeth H. Danello, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and PILLARD, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The principal question presented in this appeal is whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968 mandates suppression of evidence derived from a wiretap where information expressly required by the statute was omitted from the court order authorizing the wiretap. Appellants contend that the district court erred in denying their motions to suppress, relying on our subsequent decision in United States v. Glover, 736 F.3d 509 (D.C.Cir.2013). In Glover, 736 F.3d at 513–14, the court reiterated the distinction drawn by the Supreme Court between two of the grounds for suppression of wiretap evidence under 18 U.S.C. § 2515. To determine whether an “unlawfully intercepted” communication merits suppression, id. § 2518(10)(a)(i), a court engages in “a broad inquiry into the government's intercept procedures to determine whether the government's actions transgressed the ‘core concerns' ” of Title III. Glover, 736 F.3d at 513. On the other hand, a mechanical test applies when a wiretap authorization order is “insufficient on its face,” 18 U.S.C. § 2518(10)(a)(ii), and suppression is mandatory. Glover, 736 F.3d at 513–14. So, for example, in Glover, the court held suppression was mandatory under 18 U.S.C. §§ 2515 and 2518(10)(a)(ii) where the Title III authorization order was facially invalid because it exceeded the limits of the district court's jurisdiction set forth in the statute, id. § 2518(3). Glover, 736 F.3d at 514–15. We hold that a wiretap order is “insufficient on its face,” 18 U.S.C. § 2518(10)(a)(ii), where it fails to identify the Justice Department official who approved the underlying application, as required by Title III, id. § 2518(4)(d), accordingly reverse the denial of the motions to suppress evidence from wiretaps on the phones of appellants Terrance Hudson and Jerome Johnson, and remand. Otherwise we affirm, concluding appellants' other contentions lack merit.

I.

In July 2009, the Federal Bureau of Investigation (“FBI”) began an investigation into narcotics trafficking in and around a group of multi-unit apartment buildings, “the Second Court,” in the 4200 block of 4th Street in southeast Washington, D.C. Over the course of its investigation, the FBI identified a narcotics trafficking organization involved in distributing cocaine base (i.e., crack cocaine) in the Second Court. The FBI, relying on information from two cooperating witnesses, concluded Eric Scurry was a Second Court crack dealer.

On April 2, 2010, the FBI submitted an application and proposed order, which was signed by the district court, for a 30–day wiretap on Scurry's cell phone, an order later extended for another 30–day period. Based on evidence obtained from Scurry's tapped calls, the FBI on June 11, 2010, applied for and received court authorization to tap two cell phones associated with Terrance Hudson, whom investigators had identified as part of the same narcotics-trafficking conspiracy as Scurry. Hudson's phone calls, in turn, suggested that Robert Savoy was one of his cocaine suppliers, and on July 22, 2010, the FBI obtained a wiretap court order for two cell phones associated with Savoy. Those wiretaps indicated that Savoy also supplied crack and powder cocaine to another suspected narcotics dealer, James Brown. The Savoy wiretaps additionally indicated that Jerome Johnson supplied Savoy with large quantities of powder cocaine, and on September 10, 2010, the FBI sought and obtained a wiretap court order for Johnson's cell phone.

Appellants were indicted for various drug-trafficking offenses. After the district court denied their motions to suppress the wiretap evidence against them, United States v. Savoy, 883 F.Supp.2d 101 (D.D.C.2012), and Savoy's motion for reconsideration, appellants entered conditional guilty pleas pursuant to Fed.R.Crim.P. 11(a)(2). On appeal, they contend, relying on Glover, 736 F.3d 509, that Title III mandates suppression of evidence collected or derived from the wiretaps on Hudson and Johnson's cell phones because, as the district court found, Savoy, 883 F.Supp.2d at 114, 120, the court orders authorizing those wiretaps were facially insufficient, see 18 U.S.C. § 2518(10)(a)(ii). They also contend that the district court erred in denying the motions to suppress evidence derived from the wiretaps on Scurry and Savoy's phones. “In evaluating appellants' objections to the district court's denial of ... motions to suppress, we review the district court's legal conclusions de novo and its factual findings for clear error.” United States v. Eiland, 738 F.3d 338, 347 (D.C.Cir.2013).

II.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90–351, 82 Stat. 197, 211–25 (codified as amended at 18 U.S.C. §§ 2510 et seq. ), sets forth a detailed procedure for the interception of wire, oral, or electronic communications, which is otherwise a felony, 18 U.S.C. § 2511 ; cf. id. §§ 2512–2513, and subject to civil penalties, id. § 2520. The procedure appears in 18 U.S.C. § 2518 (2012). Under Title III, a judge may authorize a wiretap by law enforcement officers provided the application for and the court order authorizing the interception include certain specific information. Id. § 2518(1), (4).

The wiretap authorization process here entails four steps. First, the wiretap application must be pre-approved by one of the statutorily identified high-level Justice Department officials, specifically including the Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, or any acting Assistant Attorney General, as well as certain Deputy Assistant Attorneys General specially designated by the Attorney General. See id. § 2516(1).

Second, the government must submit the application, under oath or affirmation, to a judge of competent jurisdiction and state the applicant's authority to make such application. Id. § 2518(1). Title III specifies what information the application must contain. Id. § 2518(1)(a)–(f). That information includes: (1) the identity of the high-level Justice Department official who approved the application (“the application identification requirement”), id. § 2518(1)(a) ; (2) an explanation of the facts and circumstances that the applying officer believes justify the wiretap, id. § 2518(1)(b) ; and (3) a statement describing the necessity of the wiretap to the government's investigation, id. § 2518(1)(c). “The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.” Id. § 2518(2).

Third, before issuing the ex parte wiretap order, as requested or modified, a judge must make certain determinations based on the facts submitted by the applicant, id. § 2518(3), including that the wiretap is necessary to the investigation, id. § 2518(3)(c), and that there exists probable cause to believe that the phone to be tapped is or will soon be used in connection with particular enumerated criminal offenses, id. § 2518(3)(d).

Fourth, the judge issues an order approving the wiretap. Title III limits the length of the interception period to that “necessary to achieve” the wiretap's objective, with an initial maximum 30–day period subject to renewal upon submission of a new application. Id. § 2518(5). Title III also requires that the court order contain certain specified information. Id. § 2518(4)(a)–(e), (5). As relevant: The court order must specify “the nature and location of the communications facilities” to be wiretapped. Id. § 2518(4)(b). It must specify the identity of the high-level Justice Department official who approved the wiretap application (“the order identification requirement”). Id. § 2518(4)(d). And it must contain a provision mandating that law enforcement minimize the interception of communications that fall outside the scope of the wiretap order (“the minimization requirement”). Id. § 2518(5).

Title III includes its own exclusionary mandate. Section 2515 provides:

Whenever 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 trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of [Title III].

18 U.S.C. § 2515. A person seeking to enforce section 2515 must have Title III “standing,” see In re Evans, 452 F.2d 1239, 1244 (D.C.Cir.1971), which Title III defines as “[a]ny aggrieved person in any trial, hearing, or proceeding,” 18 U.S.C. § 2518(10)(a), who was a target of the wiretap or a person party to a wiretap intercept, id. § 2510(11). A person with standing may move to suppress wiretap evidence and its fruits on any of three grounds: “(i) the communication was unlawfully...