US v. McKinney, Cr. No. B-89-0466.

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: WALTER E. BLACK, Jr.
• Citation: 785 F. Supp. 1214
• Parties: UNITED STATES of America v. Barbara A. McKINNEY.
• Docket Number: Cr. No. B-89-0466.
• Decision Date: 24 February 1992

785 F. Supp. 1214

UNITED STATES of America
v.
Barbara A. McKINNEY.

Cr. No. B-89-0466.

United States District Court, D. Maryland.

February 24, 1992.

785 F. Supp. 1215

Breckinridge L. Willcox, U.S. Atty., Barbara S. Sale, Esq. and Joyce K. McDonald, Assts. U.S. Atty., for plaintiff.

Fred Warren Bennett, Federal Public Defender, Anthony R. Gallagher, and Donna M. D'Alessio, Assts. Federal Public Defender, for defendant.

WALTER E. BLACK, Jr., District Judge.

This is a criminal case arising out of the failure of the Maryland-chartered Community Saving & Loan Association. Defendants Tom J. Billman, Clayton C. McCuistion, Barbara A. McKinney and Crysopt Corporation ("Crysopt") have been named in a 20-count indictment which includes charges of conspiracy to commit wire and mail fraud, substantive wire and mail fraud, as well as criminal violation of the Racketeer Influenced and Corrupt Organizations

785 F. Supp. 1216

Act ("RICO"), 18 U.S.C. § 1961, et seq. While McCuistion, McKinney and Crysopt have appeared at arraignment and pled not guilty to the indictment, Billman remains at large, despite the fact that a warrant for his arrest was issued as far back as December 21, 1988. Presently pending before the Court is Defendant McKinney's Motion to Suppress Electronic Surveillance Evidence

McKinney's motion concerns evidence gathered as a result of three orders, issued by District Judge Albert V. Bryan, Jr. of the United States District Court for the Eastern District of Virginia, authorizing the interception of wire communications. The first and third orders, respectively dated April 27, 1989, and June 1, 1989, authorized the interception of communications over McKinney's home phone in Alexandria, Virginia. The Court will refer to these as the "original" and "renewal" orders. The middle order, dated May 19, 1989, authorized interception over a phone subscribed to by L.N. Bills in Springfield, Virginia ("the Bills order"). In obtaining these three wiretap orders, the United States invoked a previously unused statutory provision authorizing interception of wire communications in an attempt to locate a fugitive from justice. McKinney argues that the affidavits accompanying the applications submitted to Judge Bryan failed to support findings which are required under the federal wiretap statute.

I. Requirements of the Fugitive Wiretap Statute

Government interception of telephone conversations has long been recognized as a search and seizure subject to the proscriptions of the Fourth Amendment to the United States Constitution. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). However, because wiretaps pose an especially severe threat to privacy interests, see Berger v. New York, 388 U.S. 41, 63, 87 S.Ct. 1873, 1885-86, 18 L.Ed.2d 1040 (1967), Congress has enacted a series of specific safeguards controlling the circumstances under which they may be used. These safeguards are contained in Title III of the Omnibus Crime Control and Safe Streets Act. 18 U.S.C. §§ 2510, et seq. McKinney now argues that these requirements, which must be satisfied prior to issuance of a court order authorizing a wiretap, were not fulfilled in this case, thus necessitating suppression of the intercepted communications.

Section 2516 of Title 18 specifically delineates the purposes for which an application to intercept wire communications may be made. It authorizes the use of wiretaps where interception "may provide or has provided evidence of" many specifically enumerated criminal offenses. 18 U.S.C. § 2516(1)(a)-(k) and (m)-(o). In addition to gathering evidence of an enumerated offense, § 2516(1)(l) authorizes interception which may provide evidence of "the location of any fugitive from justice from an offense described in this section." 18 U.S.C. § 2516(1)(l).¹ It is this subsection which formed the basis of the wiretap applications now at issue. Put simply, the government sought authorization to intercept wire communications which it believed would aid its attempts to locate and apprehend Billman, whom the government considered a fugitive from justice for the enumerated offenses of mail fraud, 18 U.S.C. § 1341, wire fraud, 18 U.S.C. § 1343, and interstate transportation of money obtained by fraud, 18 U.S.C. § 2314. See 18 U.S.C. § 2516(1)(c).

a. Required findings of probable cause

Where application is made for a wiretap order seeking evidence of an enumerated offense, an issuing district court must find that:

785 F. Supp. 1217

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; and

. . . . .

(d) there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

18 U.S.C. § 2518(3)(a), (b) & (d).² See United States v. Webster, 639 F.2d 174, 177 (4th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982). Section 2518(1)(b) requires that each application contain a "full and complete statement of the facts and circumstances" justifying the applicant's belief that probable cause exists. 18 U.S.C. § 2518(1)(b).

Counsel have proffered to the Court that this is a case of first impression in that there is no reported opinion in which the United States has sought authorization under 18 U.S.C. § 2516(1)(l) to intercept wire communications in order to help locate a fugitive from justice from an offense enumerated elsewhere in § 2516(1). As a result, no court has addressed the proper application of the probable cause requirements contained in § 2518(3) in such a case. The precise language of § 2518(3)(a), (b) and (d) does not appear to apply because § 2516(1)(l) authorizes the interception of evidence concerning the whereabouts of one fleeing prosecution for an enumerated crime, rather than the interception of evidence concerning the enumerated crime itself.

The Court expressly disagrees with McKinney's position in this regard that subsection (1)(l) refers to a separate crime, i.e. that of being a "fugitive from justice." In fact, there is no crime entitled "fugitive from justice." Rather, Chapter 49 of Title 18 is so entitled and contains four offenses in §§ 1071-1074, including "Flight to avoid prosecution or giving testimony." 18 U.S.C. § 1073. If § 2516(1)(l) were intended to add to the list of enumerated offenses, it would surely have referenced Chapter 49 or, at least, 18 U.S.C. § 1073. Moreover, the Court notes that while each of subsections 2516(1)(a)-(k) and (m)-(o) refers to either an offense, a violation, or a conspiracy to commit an offense, subsection § 2516(1)(l) stands alone in its reference to the "location of any fugitive from justice from an offense described in this section." 18 U.S.C. § 2516(1)(l) (emphasis added). Subsection (1)(l) merely authorizes wire interception where the government seeks evidence needed in order to apprehend one who has obtained the status of a "fugitive from justice" by fleeing prosecution for an enumerated offense.

Applying the probable cause requirements of § 2518(3) to a wiretap application filed under § 2516(1)(l) is somewhat akin to forcing a square peg into a round hole.³ However, subsection (1)(l) clearly indicates Congress' intent that information concerning the whereabouts of fugitives from enumerated crimes should be obtainable through electronic interception under § 2516. To effectuate that intent as it must, the Court finds that the following findings of probable cause are required prior to the issuance of an order authorizing interception of communications for the purpose of locating a fugitive from an enumerated crime:

785 F. Supp. 1218

1) that an individual is a fugitive from justice from a particular offense enumerated in § 2516(1); and

2) that particular communications tending to reveal the location of the fugitive will be obtained through the interception sought.

The term "fugitive from justice" is not defined in either § 2516(1)(l) or the legislative history under which it was enacted in 1986 as subsection 2516(1)(k).⁴ While the Court disagrees with McKinney's position that § 2516(1)(l) concerns a crime of "fugitive from justice," it agrees that there must be a probable cause determination that the individual referenced in (1)(l) has fled—i.e., that he is deliberately evading authorities with the specific intent to avoid prosecution.

The parties are in sharp dispute over the state of knowledge such a person must possess in order to obtain the status of a "fugitive from justice." McKinney argues that, at the very least, the affidavit in this case must have demonstrated that Billman had knowledge of the fact that he was the target of an ongoing criminal investigation. In support of her position, McKinney cites case law interpreting the Chapter 49 "Fugitive From Justice" offenses, as well as that concerning 18 U.S.C. § 3290, which tolls the federal statute of limitations where a defendant has fled from justice. Having examined the relevant statutes and the case law, the Court finds that only the offense of "Flight to avoid prosecution or giving testimony," 18 U.S.C. § 1073, provides any meaningful guidance.⁵ Section 1073 provides in part that:

Whoever moves in interstate or foreign commerce with intent ... (1) to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which he flees, for a crime, or an attempt to commit a crime, punishable by death, or which is a felony under the law of the place from which the fugitive flees, ... shall be fined not more than $5,000 or

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