USA. v. Matthews, 98-1178

• Decision Date: 26 May 2000
• Docket Number: No. 98-1178,98-1178
• Citation: 213 F.3d 966
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HERMAN MATTHEWS, also known as YUM, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 966

213 F.3d 966 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HERMAN MATTHEWS, also known as YUM, Defendant-Appellant.

No. 98-1178

In the United States Court of Appeals For the Seventh Circuit

ARGUED FEBRUARY 17, 2000

DECIDED May 26, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 CR 333--William T. Hart, Judge.

Before Harlington WOOD, JR., COFFEY and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

On August 25, 1994, a grand jury in the Northern District of Illinois returned a 43-count indictment charging the defendant- appellant, Herman Matthews, also known as "Yum," and 17 others with a variety of drug-related offenses. On January 12, 1995, a 66-count superseding indictment naming Matthews and 15 others was filed in the Northern District of Illinois.¹

Prior to trial, Matthews filed a motion to suppress electronic surveillance evidence gathered against him in the course of the court-ordered wiretap on the phone of suspected drug dealer, Mukglis Toma. Matthews argued that the wiretap evidence must be suppressed because he was not named or identified in any of the applications for extensions of the wiretap or in the orders granting those extensions. The trial judge denied Matthews' motion to suppress.

Undeterred by the denial of his motion to suppress, Matthews elected to go to trial, and on June 6, 1997, a jury found Matthews guilty of Counts 1, 7, 13, 14, 16, 44, and 45.² The judge then sentenced Matthews to a term of imprisonment of 188 months, to be followed by five years of supervised release, and a special assessment of $350. Matthews was also ordered to forfeit $28,000.

We affirm.

I. BACKGROUND

During 1993 and 1994, Matthews and others participated in a conspiracy to possess, with the intent to distribute, cocaine and marijuana in the Chicago, Illinois, area.³ A wholesaler of cocaine and marijuana, named Mukglis Toma, was at the center of the conspiracy, receiving drugs from suppliers and distributing them to customers; Matthews was one of Toma's biggest customers.

On January 20, 1994, a judge in the Northern District of Illinois approved the government's application for a thirty-day wiretap on Toma's cellular phone, and thereafter granted three extensions so that the wiretap ran through May 12, 1994.

Shortly after the wiretap was activated, FBI agents discovered that Toma repeatedly called a particular pager number and that each time he called that pager, he received a return phone call shortly thereafter from an individual identifying himself as "Yum." The FBI intercepted many of these phone conversations discussing and arranging drug transactions in which Toma agreed to provide Yum with cocaine and marijuana for distribution.

After subpoenaing the phone records of Yum's pager, the agents learned that it was registered to Fred Wyatt of 503 East End Avenue in Calumet City, Illinois; thus, the FBI agents were led to believe that Yum was Fred Wyatt. Accordingly, all further applications for extensions of the wiretap listed Fred Wyatt as one of the individuals whose conversations were likely to be the subject of the authorized phone interceptions.

There were a number of reasons that the FBI believed that Wyatt was Yum. The pager number hat Toma called was registered to Wyatt. Wyatt, whom agents learned had a criminal history,⁴ lived in the immediate area of the suspected drug activity. In several of their recorded conversations, Toma and Yum discussed meeting at a hot dog stand to conduct their drug transactions. Because Wyatt lived near a hot dog stand, the FBI set up surveillance at the stand near Wyatt's home on a number of occasions in the hope of observing him in a narcotics transaction. After the surveillance at the hot dog stand nearest to Wyatt's house proved unfruitful as to drug activity, the FBI set up surveillance at other hot dog stands in the vicinity of Wyatt's house. Despite their repeated efforts, the FBI never observed the individual who identified himself as Yum purchase any narcotics.

After the authorization for the wiretap expired, the FBI attempted to arrest those persons whom it concluded were involved in the drug trafficking conspiracy at issue. At the time, the FBI was still convinced that the individual identifying himself as Yum was Fred Wyatt, and on May 13, 1994, federal authorities arrested Wyatt and brought him in for questioning. The arresting agents concluded, shortly thereafter, that, despite their earlier information and belief, Wyatt was not Yum. Wyatt was released from custody and all charges against him were dismissed. As a result of this setback, the FBI continued to investigate the drug conspiracy.

After certain individuals involved in this conspiracy were arrested and began to cooperate with the authorities in the investigation, the FBI became aware of the fact that "Yum" was actually Herman Matthews; thereafter, Matthews was arrested and admitted that Yum was, in fact, one of his nicknames. Matthews, alias "Yum," was then charged along with fifteen other individuals with several counts of possession of cocaine and marijuana with intent to distribute.

Prior to trial, Matthews filed a motion to suppress the electronic surveillance evidence gathered in the course of the court-ordered wiretap on the phone of suspected drug dealer, Mukglis Toma. Matthews argued that even after the authorities had intercepted phone calls made by "Yum," one of Matthews' aliases, he was neither named nor identified in any applications for extensions of the wiretap order or in the orders granting such extensions. Thus Matthews claimed that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 had been violated, and any communications involving him which occurred after the government learned of "Yum's" involvement must be suppressed. See 18 U.S.C. sec.sec. 2518(1)(b)(iv) and (4)(a).⁵ The trial judge rejected Matthews' arguments and, as stated previously, a jury convicted Matthews of all but one of the Counts charged in the indictment.

Matthews appeals the denial of his motion to suppress, arguing that the wiretap orders were invalid because they failed to provide sufficient information as to the identity of those individuals whose communications were likely to be intercepted.

II. DISCUSSION

As we have repeatedly stated, "[w]hen reviewing the denial of a motion to suppress, we review the district court's conclusions of law de novo, and we review the court's findings of fact for clear error." United States v. Taylor, 196 F.3d 854, 859-60 (7th Cir. 1999) (citation omitted).

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III) requires that each application authorizing the interception of wire communications include "the identity of the person, if known, committing the offense and whose communications are to be intercepted." 18 U.S.C. sec. 2518(1)(b)(iv) (emphasis added). Title III also requires that each order authorizing the interception of wire communications include the identity of persons, if known, whose communications are likely to be intercepted. See 18 U.S.C. sec. 2518(4)(a). Title III provides that intercepted communications may be suppressed if:

(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. 18 U.S.C. sec. 2518(10).

The Supreme Court has previously addressed the issue of wiretap applications, orders, and interceptions, and under what circumstances the information obtained from electronic surveillance must be suppressed. See United States v. Donovan, 429 U.S. 413 (1977). In Donovan, the government's wiretap application listed six individuals suspected of transacting illegal gambling over the telephone wires. In the course of monitoring the telephone calls, the government learned the names of other individuals who were participating in the alleged illegal gambling. In applying for wiretap extensions, the government failed to identify these additional individuals. The government later indicted several of these unnamed individuals, and they in turn moved to suppress the wiretap evidence based on the government's failure to comply with 18 U.S.C. sec.sec. 2518(1)(b)(iv) and (4)(a) in that it did not identify those individuals in spite of the fact that agents learned of their identity during the course of its investigation. The trial court granted the unnamed individuals' motion to suppress, and the Sixth Circuit affirmed. The Supreme Court reversed, stating that wiretap applications must contain the name of an individual if the government has probable cause to suspect that the individual is...