US v. Gruber
| Decision Date | 24 October 1995 |
| Docket Number | No. CR 94-2022.,CR 94-2022. |
| Citation | 908 F. Supp. 1451 |
| Parties | UNITED STATES of America, Plaintiff, v. Jeffrey Paul GRUBER, Mark Brian McPherson, David Lester Fairchild, Nicholas Paul Hursh, Gerald Conrad Vanbrocklin, James Lee Truesdell, Robert Nicholas Ross, Jacob Harold Hazlet, Calvin Leonard Flett, Ronald Merrill Gruber, James Lee Leisinger, Kirk Allen Pierce, Lewis Keith Racicot, and Robert Orlando McAlister, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
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Assistant United States Attorneys Kandice Wilcox and Richard Murphy, for U.S.
Wallace L. Taylor, Cedar Rapids, Iowa, for Defendant Pierce.
Mark R. Brown, Cedar Rapids, Iowa, for Defendant Leisinger.
TABLE OF CONTENTS
I. INTRODUCTION ........................................................................____
II. FINDING OF FACT .....................................................................____
III. CONCLUSIONS OF LAW ..................................................................____
A. Probable Cause for Authorizing Title III Interception ............................____
B. Analysis of Probable Cause .......................................................____
C. Necessity Finding Required Under 18 U.S.C. § 2518(3)(c) .....................____
D. Facial Challenges to Order and Extension Order Authorizing Interception ..........____
E. Monitoring Issues ................................................................____
1. Minimization ..................................................................____
2. Continuation of Interception ..................................................____
F. Franks Issue .....................................................................____
IV. CONCLUSION ..........................................................................____
In an eighty-seven page, forty count superseding indictment returned on September 28, 1995, Defendants are charged with racketeering, in violation of 18 U.S.C. § 1962(c), conspiracy to commit racketeering activity, in violation of 18 U.S.C. § 1962(d), conspiracy to distribute and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii), distributing and possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3), possessing with intent to sell a motor vehicle part knowing that the vehicle identification number of the part had been removed, obliterated, tampered with and altered, in violation of 18 U.S.C. § 2321, money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), the commission of violent crimes in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(3), firearms offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and with engaging in a continuing criminal enterprise, in violation of 21 U.S.C. §§ 848(b) and 848(c). All but Defendants Hazlet, Leisinger and Pierce have now entered into plea agreements in this matter.
Defendants Fairchild and Pierce each filed motions to suppress evidence obtained from electronic surveillance and/or motions to suppress intercepted communications evidence derived from an interception authorized under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. §§ 2510-2520. Although Defendant Fairchild has entered into a plea agreement regarding the charges pending against him, Defendants Pierce and Leisinger have joined in Defendant Fairchild's motion. Thus, Fairchild's motion remains viable, and the court must address the issues raised in it as well as Defendant Pierce's separate motion. Defendant Hazlet has neither filed a motion to suppress nor joined any of the Defendants' motions to suppress. Defendants move to suppress evidence discovered as a result of a wiretap on five grounds: first, that probable cause for the interception did not exist; second, that the necessity requirement of Title III, 18 U.S.C. § 2518(3)(c) had been satisfied; third, that defects exist in the order authorizing interception and the order granting extension of the interception; fourth, that error occurred during the monitoring phase of the interception; and finally, that the interception was continued after its objectives were attained. On October 2, 1995, Defendant Pierce filed a supplemental memorandum which raised for the first time the issue of whether the affidavit used to obtain the wiretaps in this case contains intentional misstatements, and requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The Government has timely resisted each of Defendants' respective motions.
An evidentiary hearing on Defendants' motions was held on October 2, 1995, at which the United States presented the testimony of Black Hawk County Deputy Larry Wessels, and Special Agent Mark Terra of the Federal Bureau of Investigations. Defendants presented no testimony. The United States was represented by Assistant United States Attorneys Kandice Wilcox and Richard Murphy. Defendant Pierce was represented by Wallace L. Taylor, Cedar Rapids, Iowa. Defendant Leisinger was represented by Mark R. Brown, Cedar Rapids, Iowa.1 This matter is now fully submitted.
On October 16, 1993, the United States presented to Chief Judge Michael Melloy its application for interception of wire communications pursuant to Title III. The application was supported by the affidavit of Federal Bureau of Investigations Special Agent Mark Terra ("Terra Aff."). Special Agent Terra's affidavit initially sets forth, inter alia, his law enforcement background and experience. Terra Aff. at 1-4. He then identifies the three individuals whose wire communications would be intercepted: Gerald Conrad VanBrocklin, aka "Jerry" or "J.V."; Cynthia Maria Laughlin, aka "Cyndi"; Jeffrey Paul Gruber, aka "No Mind." Id. at 4. The affidavit indicates that proposed interception would be for telephone number XXX-XXX-XXXX, subscribed to by Christine Peverill, and located at 1251 175 Street, Lot # 40, Jesup, Iowa. Id. at 4-5. The affidavit then provides background information and the criminal history of each of the three individuals. Id. at 7-10. Special Agent Terra's affidavit next sets out the background of the investigation. Terra indicates that since 1987 twenty-two individuals, including six confidential sources subsequently referred to in the affidavit, have identified to task force agents that VanBrocklin "has been involved in trafficking drugs, primarily methamphetamine, between 1987 and the present." Id. at 10.
Terra then indicates what information has been provided by a confidential informant, identified in the affidavit as "Source One." The affidavit reveals that Source One has provided drug information to the Federal Drug Task Force in Waterloo, Iowa, "on numerous occasions during the past one and one-half years." Id. It is further revealed that Source One's previous information has served as the basis for two state search warrants which resulted in the arrest of one individual and the seizure of drugs, weapons, and cash. The affidavit goes on to indicate that Source One provided information regarding the investigation, personally knew the individuals distributing the methamphetamine, and that this information had been corroborated through "independent investigative techniques." Id. at 11. Source One is identified as providing the following information:
Terra indicates that on September 1, 1992, the execution of a search warrant for Folkers' residence resulted in the seizure of more than two ounces of methamphetamine along with packaging materials used in the distribution of methamphetamine. VanBrocklin's vehicle was observed at Folkers' residence at least ten times between August 1991 and September 1992 by law enforcement officers conducting surveillance of Folkers' residence. Id. at 12. Folkers committed suicide in November 1992 without ever revealing the source of his methamphetamine. Id. at 12-13.
Terra's affidavit next indicates what information has been provided by a confidential informant, identified in the affidavit as "Source Two." The affidavit reveals that Source Two has provided drug information to the Federal Drug Task Force in Waterloo, Iowa, "on numerous occasions beginning in 1988." Id. at 13. It is further revealed that Source Two personally knew the individuals distributing the methamphetamine, and that this information had been corroborated. Id. Source Two is identified as providing the following information:
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U.S. v. Fairchild
...the district court did not abuse its discretion by denying appellant Pierce's request for a Franks hearing. United States v. Gruber, 908 F.Supp. 1451, 1468-1471 (N.D.Iowa, 1995). III. Appellants Fairchild and Leisinger argue that the district court admitted unduly prejudicial evidence at tr......