Opinion
No. 5:15-CR-172-BO-1 No. 5:15-CR-172-BO-2 No. 5:15-CR-172-BO-8
04-06-2017
UNITED STATES OF AMERICA v. LEMONT JERRONE WEBB ANTOINE DEWAYNE MYLES CLEVELAND MYLES
ORDER
This matter is before the Court on Lemont Webb's motion for release of Brady/Giglio materials (adopted by Antoine Myles) [DE 689], motion for disclosure of government trial exhibits (adopted by Antoine Myles and Cleveland Myles) [DE 690], motion in limine to exclude non-testifying co-defendant statements (adopted by Antoine Myles and Cleveland Myles) [DE 691], motion in limine to exclude lay opinion testimony (adopted by Antoine Myles and Cleveland Myles) [DE 692], motion to adopt co-defendant Antoine Myles' motion to suppress [DE 693], motion to sequester (adopted by Antoine Myles) [DE 694], motion for disclosure of 404(b) evidence [DE 695], motion to identify informants (adopted by Antoine Myles) [DE 698], amended motion to suppress custodial statements [DE 699], motion to suppress [DE 700], and motion to suppress intercepted communications [DE 701].
BACKGROUND
This case arises from a joint investigation by the Sheriff's Office in Cumberland County, North Carolina ("CCSO"), the CCSO Special Response Team, the Cumberland County Bureau of Narcotics ("CCBN:) and the Drug Enforcement Administration ("DEA") (collectively, "law enforcement") into cocaine and crack trafficking activities between 2000 and 2014 of a drug trafficking organization ("DTO") based primarily in the North Carolina cities of Godwin and Dunn.
On May 27, 2015, a federal grand jury sitting in the Eastern District of North Carolina returned a true bill of indictment against Lemont Webb, Antoine Myles, Cleveland Myles and others, charging these defendants with conspiracy to manufacture, distribute, dispense and possess with the intent to distribute five (5) kilograms or more of cocaine and two hundred eighty (280) grams or more of cocaine base (crack), in violation of Title 21, United States Code, Section 841(a)(1) and 846. Defendants Antoine Myles and Lemont Webb were also charged with conspiracy to conduct and attempt to conduct financial transactions affecting interstate and foreign commerce, in violation of Title 18, United States Code, Section 1956(h) as well as multiple substantive money laundering offenses. Defendant Antoine Myles was also charged with one count of possession with the intent to distribute a quantity of cocaine, in violation of Title 21, United States Code, Section 841(a)(1).
On February 22, 2017, a federal grand jury returned a superseding indictment against the eight defendants who have not yet been arraigned on the original indictment.
DISCUSSION
I. Motion for release of Brady/Giglio materials (adopted by Antoine Myles) [DE 689]
On January 25, 2017, defendant Lemont Webb filed a motion for early disclosure of Brady/Giglio material. [DE 689]. On February 8, 2017, the Court granted defendant Antoine Myles' motion to adopt the disclosure motion. [DE 708]. The government does not oppose the motion. [DE 741]. It has been previously ruled upon in this case as to co-defendants Harry Myles, Sr., Antoine Myles, and Cleveland Myles, that all Brady and Giglio material be produced no later than seven days (one week) prior to trial. [DE 340 at 3-5; DE 430 at 3-4; DE 528 at 3-4]. For good cause shown, the Court incorporates these previous orders to the extent they are applicable to defendants Webb and Antoine Myles on this issue and will grant this motion.
II. Motion for disclosure of government trial exhibits (adopted by Antoine Myles and Cleveland Myles) [DE 690]
On January 25, 2017, defendant Lemont Webb filed a motion for disclosure of government summary exhibits, requesting that the Court order the Government to produce any summary or chart that it intends to use at trial at least ten (10) days prior to trial. [DE 690]. On February 8, 2017, the Court granted defendant Antoine Myles' motion to adopt the disclosure motion. [DE 708]. On February 15, 2017, the Court granted defendant Cleveland Myles' motion to join the motion for disclosure. [DE 713]. The government does not oppose the motion. [DE 741]. A request for disclosure of government summary exhibits was previously granted for co-defendant Harry Myles, Sr. [DE 340 at 5-6]. For good cause shown, the Court incorporates this previous order to the extent it is applicable to defendants Webb, Antoine Myles, and Cleveland Myles on this issue and will grant this motion.
III. Motion in limine to exclude non-testifying co-defendant statements (adopted by Antoine Myles and Cleveland Myles) [DE 691]
Defendant Webb seeks to prohibit the government from introducing statements made by unspecified non-testifying co-defendants. [DE 691]. Defendants Antoine Myles and Cleveland Myles were allowed by order of this Court to adopt and join this motion. [DE 708, 713]. Pursuant to U.S. Const., amend. VI, Bruton v. United States, 391 U.S. 123 (1968), and Crawford v. Washington, 541 U.S. 36 (2004), defendant contends that such statements are testimonial and therefore inadmissible unless subject to cross-examination by defendant. [DE 691].
The government opposes the motion, arguing that the issue is not yet ripe. [DE 733]. The Court agrees. Defendant and the remaining co-defendants in this case have yet to be arraigned. The government avers that it is continuing to negotiate with each of the remaining defendants in this matter and cannot make any representation to the Court about whether or not any of the remaining defendants will proceed to trial and be unavailable to testify as a result of that choice. As a result, the Court holds that this motion would be more properly revisited by defendant and the government closer to the date of the trial and once an actual determination of the evidence and witnesses to be used at trial has been made. For these reasons, the motion is denied as not yet ripe.
IV. Motion in limine to exclude lay opinion testimony (adopted by Antoine Myles and Cleveland Myles) [DE 692]
Defendant Webb moved for an order excluding lay opinion testimony as to (1) the "true meaning" of terminology used in telephone conversations and text messages between co-defendants, and (2) regarding the role of various defendants in the alleged drug conspiracy. [DE 692]. Defendant Webb argues such statements will not assist the jury and that lay opinion testimony regarding the role of a defendant in a drug conspiracy is improper. Id. Defendants Antoine Myles and Cleveland Myles were allowed by the Court to join and adopt this motion. [DE 708, 713]. The government responded but no reply was filed. [DE 734]. For the following reasons, the motion is denied.
Under Rule 701 of the Federal Rules of Evidence, witnesses are allowed to offer non-expert opinion testimony, provided those opinions are based on personal knowledge, helpful to the jury, and based on everyday reasoning and deductions rather than specialized skill or training. Fed. R. Evid. 701. Defendant has not provided any specific examples of improper witness testimony, and the Court is unable to make a determination at this time as to whether or which witness testimony would be in violation of the Rules of Evidence. Should a witnesses' testimony exceed those guidelines, the appropriate remedy is for defendants to raise an objection at that time at trial. For these reasons, the motion is denied.
V. Motion to adopt co-defendant Antoine Myles' motion to suppress [DE 693]
On January 25, 2017, defendant Lemont Webb filed a motion to adopt and join co-defendant Antoine Myles' motion to suppress intercepted communications which was filed on February 22, 2016. [DE 394]. The underlying motion to suppress which defendant Webb moves to adopt and join was denied by Senior United States District Judge James C. Fox in an order dated April 26, 2016. [DE 449]. Defendant Webb has not put forth any argument as to why the underlying motion should be re-litigated. Because the motion which defendant Webb wishes to adopt and join has already been denied, the government does not oppose. [DE 741]. For these reasons, the Court will grant the motion and allow defendant Webb to join the motion.
VI. Motion to sequester (adopted by Antoine Myles) [DE 694]
On January 25, 2017, defendant Webb filed a motion to sequester government witnesses. On February 8, 2017, the Court granted defendant Antoine Myles' motion to adopt the motion to sequester. [DE 708]. The government does not object to this motion. [DE 741]. It has previously been ordered in this case that witnesses will be sequestered with the exception of one case agent for the government. [DE 340 at 2-3; DE 430 at 4-6; DE 528 at 2-3]. For good cause shown, the Court incorporates these previous orders to the extent they are applicable to defendants Webb and Antoine Myles on this issue and will grant this motion.
VII. Motion for disclosure of 404(b) evidence [DE 695]
On January 25, 2017, defendant Webb filed a motion requesting disclosure of evidence the government intends to introduce against Webb pursuant to Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) requires that the government provide "reasonable notice of the general nature of any such evidence" that the Government intends to use at trial the request of the defendant. Fed. R. Evid. 404(b). It has previously been ruled in this case that the government shall provide such notice at least one week (seven days) prior to trial. [DE 340 at 6-7; DE 430 at 2-3; and DE 528 at 4-5]. For good cause shown, the Court incorporates these previous orders to the extent they are applicable to defendant Webb on this issue and will grant the motion.
VIII. Motion to identify informants (adopted by Antoine Myles) [DE 698]
On January 28, 2017, defendant Webb filed a motion to compel the government to reveal the "name and whereabouts of each confidential informant who directly participated in undercover drug purchases during this investigation." [DE 698]. Defendant argues that, under Roviaro v. United States, 353 U.S. 53 (1957) and the Sixth Amendment, such information is essential to a fair determination of the case and is material to his defense because each informant is a direct participant in the respective transactions and is the sole witness as to the actual identity of the person who sold the drugs. [DE 698 at 2]. Defendant Webb also believes that the informants may offer testimony implicating individuals other than defendant Webb as the seller of the drugs in question. Id. On February 1, 2017, defendant Antoine Myles filed a motion to adopt and join defendant Webb's motion, which was granted by the Court on February 8, 2017. [DE 708]. The government responded but no reply was filed. [DE 738]. For the following reasons, the motion is denied.
The government's privilege to withhold the identity of people who provide information to law enforcement provides for the effective enforcement of the laws. Roviaro v. United States, 353 U.S. 53, 59 (1957). In order to breach this privilege and require the government to disclose the identity of an informant, the burden is on the defendant to prove that disclosure is justified. United States v. D'Anjou, 16 F.3d 604, 609-10 (4th Cir. 1994) (citing United States v. Blevins, 960 F.2d 1252, 1259 (4th Cir. 1992)). "Indeed, the defendant must come forward with something more than speculation." Id. at 610 (internal citations and quotations omitted). There is no fixed rule as to when disclosure is required; rather a reviewing court must balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 62. Whether disclosure is appropriate depends on the circumstances of each case. Id. at 609. "Disclosure is only required after a court has determined that the informer's testimony is highly relevant." United States v. Smith, 780 F.2d 1102, 1108 (4th Cir. 1985) (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 870 (1982).
Defendant has not met his burden to show that disclosure is justified in this case. When a defendant is charged for a crime in which the information was a participant, disclosure of the informant's identity is required "where the informant is an actual participant, particularly where he helps set up the criminal occurrence." McLawhorn v. State of North Carolina, 484 F.2d 1, 5 (4th Cir. 1973). That is not the situation here, because defendant has not been charged with any of the alleged sales of drugs to the confidential informants. Rather, to determine whether disclosure is justified, the Court must consider and weigh the crime charged, the possible defenses, the possible significance of the informer's testimony, and the scope of the informant's role in the investigation. D'Anjou, 16 F.3d at 609-10.
Weighing these factors in this case, the Court holds that disclosure is not warranted. The crime charged is a large scale drug conspiracy and money laundering conspiracy, of which the confidential informant's testimony is but one small part of the government's investigation which utilized a multitude of law enforcement techniques, including pen-register orders, wiretaps, vehicle stops, drug seizures, and search warrants. As to defendant's argument that the informants may offer testimony implicating individuals other than defendant as the seller of drugs in question, because defendant has put forth no evidence to suggest this to be true, such an argument amounts to "mere speculation" which is insufficient to require disclosure.
Applying the factors above, the Court holds that defendants have failed to meet their burden to establish that disclosure would be relevant and helpful to their defense. For these reasons, defendant's motion will be denied.
IX. Motion to suppress custodial statements [DE 699]
On January 28, 2017, defendant Webb filed a motion to suppress all statements made by the defendant on June 5, 2015, and any other evidence obtained as the "fruits" of those statements. [DE 699]. Defendant asserts that suppression is required by the Fifth and Sixth Amendments to the United States Constitution and Miranda v. Arizona, 384 U.S. 436 (1966), because discovery has not revealed a written Miranda advice form or a written waiver of those rights by defendant. Defendant further asserts that officers did not advise him of his Miranda rights and that he did not voluntarily waive either his right to counsel or his right to remain silent. The government responded but no reply was filed. [DE 735]. For the following reasons, the motion is denied.
"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda, 384 U.S. at 444. The procedural safeguards of Miranda are required when a suspect is in custody and is subjected to either express interrogation or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). Interrogation "refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at 301; see also United States v. Payne, 954 F.2d 199, 202 (4th Cir. 1992). In determining whether a suspect was subject to interrogation, the focus is on the perception of the suspect not the police. Id. "Any statement given freely and voluntarily without any compelling influences is, of course, admissible." Miranda, 384 U.S. at 478. It is the government's burden by a preponderance of the evidence to show that a defendant's statement was voluntary. United States v. Braxton, 112 F.3d 777, 781 (4th Cir. 1997).
The government does not contest the fact that defendant was in custody at the time he made the challenged statements to law enforcement agents, and was therefore entitled to be advised of his Miranda rights prior to being questioned. [DE 735]; Miranda v. Arizona, 384 U.S. 436 (1966); Dickerson v. U.S., 530 U.S. 428 (1966). The government further provided the interviewing report of Mr. Beers, investigative agent for the Internal Revenue Service ("IRS"). That report indicated that, before asking any questions, Agent Beers "read aloud from a rights card, Webb's in-custody rights. Webb stated that he understood his rights. Webb stated that he waived his right to remain silent and agreed to answer questions and provide information." [DE 735-1]. The report further indicated that the interview and defendant's waiver of his rights took place in the place of a second interviewing officer. Id.
An evidentiary hearing on this matter was held in Elizabeth City, North Carolina, on March 28, 2017. At that hearing, Agent Beers testified that he read defendant his Miranda rights, that defendant acknowledged that he understood those rights, and then verbally waived his right to remain silent and began answering questions. Agent Beers identified the "right's card" he read from, which was taken into evidence and which was attached to the government's response. [DE 735-2]. Agent Beers further testified that, although it is recommended by IRS investigation guidelines to obtain a defendant's written waiver of his rights, this is not a mandatory requirement and was not followed on that day because the circumstances of the interview made it impractical. Defendant did not present any evidence.
The Court finds that the government has established, by a preponderance of the evidence, that defendant was notified of his rights before being questioned, and that he gave a knowing and voluntary waiver of his right to remain silent before answering questions. There is no requirement that a Miranda waiver must be reduced to writing instead of being given verbally; instead, waiver "may be inferred from all the circumstances." U.S. v. Hicks, 748 F.2d 854, 859 (4th Cir. 1984). The testimony of Agent Beers, the lack of any evidence to the contrary, as well as the complete absence of any argument or evidence that defendant answered questions involuntarily, all establish that the requirements of Miranda have been met and that defendant's incriminating statements should not be suppressed. For these reasons, defendant's motion will be denied.
X. Motion to suppress [DE 700]
On January 31, 2017, defendant Webb moved to suppress all evidence found in or developed from a search of his residence on June 5, 2015. [DE 700]. Webb argues that the information contained in the search warrant application that implicated his residence was too stale to support a finding of probable cause. Id. Additionally, Webb contends that the good-faith exception to the exclusionary rule should not apply because that the affidavit submitted in support of the warrant did not report that five prior searches of the residence had failed to uncover the presence of narcotics, because the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, and arguing that there was a lack of any specific recent information linking the premises to criminal activity which indicates that the magistrate wholly abandoned his detached and neutral judicial role. Id. The government responded but no reply was filed. [DE 739]. For the following reasons, the motion is denied.
On June 4, 2015, United States Magistrate Judge James E. Gates issued a search warrant for the premises located at 8212 Godwin Falcon Road, Godwin, North Carolina. [DE 700-1 at 1]. The search warrant authorized law enforcement to search the premises for evidence of violations of Title 21, United States Code, Sections 841 and 846 (drug trafficking) and Title 18, United States Code, Sections 1956 and 1957 (money laundering). Id. The search warrant was executed on June 5, 2015, and law enforcement located more than twenty-eight (28) grams of cocaine base (crack) on the subject premises. Id. at 2.
The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. "The Fourth Amendment generally requires the police to obtain a warrant before conducting a search." United States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010). A warrant must be supported by probable cause, which exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found" in a particular place. Ornelas v. United States, 517 U.S. 690, 696 (1996). One presented with a search warrant application "must 'make a practical, common-sense decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Lalor, 996 F.2d 1578, 1580 (4th Cir. 1993) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). "[E]vidence seized pursuant to a warrant supported by 'stale' probable cause is not admissible in a criminal trial to establish the defendant's guilt." United States v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984). Staleness, however, is not simply a question of the passage of time. Id. A court "must look to all the facts and circumstances of the case, including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized." Id.
Typically, evidence seized in violation of the Fourth Amendment is suppressed pursuant to the exclusionary rule. Wong Sun v. United States, 37 U.S. 471 (1963). Where an officer relies in good faith on a warrant, however, the fruits of the search are not excluded, even if the warrant is "subsequently invalidated." United States v. Leon, 468 U.S. 897, 922 n.23 (1984) (holding that courts should only suppress evidence obtained pursuant to a subsequently invalidated warrant if "a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization"). There are only four circumstances in which the Leon good faith exception does not apply:
(1) "if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;" (2) if "the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)"; (3) if the affidavit supporting the warrant is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" and (4) if under the circumstances of the case the warrant is "so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid."United States v. Dequasie, 373 F.3d 509, 519-20 (4th Cir. 2004) (quoting Leon, 469 U.S. at 923).
Where a defendant challenges both probable cause and applicability of the good faith exception, the court may proceed directly to the issue of good faith without deciding the question of probable cause. See Leon, 468 U.S. at 925 ("courts [can] reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers' good faith."); see also United States v. Andrews, 577 F.3d 231, 235 (4th Cir. 2009). This being such a case, the Court exercises its discretion to forego discussing the validity of the search warrant and proceed directly to the question of whether the good faith exception should apply.
Defendant first argues that the good faith exception should not apply because the affidavit submitted in support of the warrant failed to report that five prior searches of the residence had failed to uncover the presence of narcotics. [DE 700]. Defendant apparently contends that this omission was an intentional falsity that renders the warrant invalid. "[T]o defeat the operation of the good faith exception requires not only intentional or reckless falsity, but also that the 'the (sic) magistrate or judge in issuing a warrant was misled' by such falsity." United States v. Doyle, 650 F.3d 460, 469 (4th Cir. 2011) (quoting Leon, 468 U.S. at 923). A defendant seeking to defeat the good faith exception must not only demonstrate that the statements in the affidavit are inaccurate, but also "that they were critical to the finding of probable cause." Id.
Although defendant has not proffered evidence demonstrating this to be true, for the sake of analysis the Court will assume that five previous searches were conducted at the premises which failed to uncover narcotics. Even if true, defendant has not shown that such an omission was critical to the finding of probable cause by the magistrate because the affidavit contained ample other evidence which would support a finding of probable cause. The affidavit outlined a 15 year investigation undertaken by investigators which consisted of multiple enforcement actions, including controlled purchases, seizures, search warrants, consent searches, surveillance, information from cooperating witnesses, and a Title III wiretap. [DE 700-1 at 7-28]. The affidavit further stated that, based on the investigation, law enforcement had learned that the defendant used the subject residence to store drug proceeds and to sell, manufacture and distribute crack cocaine, and that recent surveillance had confirmed to investigating officers that the drug trafficking organization operating in the same manner in 2015 as it had in 2000. Id. Based on the foregoing, the Court finds that the Magistrate Judge was not misled by the omission of information that five previous searches of the residence had failed to uncover narcotics because there was sufficient other evidence to support a finding of probable cause.
Defendant next argues that the good faith exception should not apply because the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Defendant's third argument is similar in that he claims that there was a lack of any specific recent information linking the premises to criminal activity which indicates that the magistrate wholly abandoned his detached and neutral judicial role. The Court does not agree. As discussed above, there was sufficient evidence in the affidavit to support a finding of probable cause and that directly linked criminal activity to defendant's residence. This evidence included a long-term drug and money laundering investigation where informants provided information; wiretapped phone calls of multiple co-defendants, including defendant Webb, which provided evidence of drug trafficking and indicated that defendant's premises had been used to reduce cocaine to cocaine base and store proceeds of the trafficking; and a previous search warrant at the same residence which had resulted in the seizure of money used to buy drugs at an adjacent property the previous day. [DE 700-1 at 7-28]. Moreover, "[u]sually, searches conducted pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search." United States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004) (internal citations and quotations omitted). Because the affidavit relied upon by the magistrate was not without foundation or unsupported by reasonable evidence, the Court need not engage in a deeper inquiry of the warrant than what has been discussed above.
Based on the foregoing, the Court finds that the searching officers' reliance on the warrant was in good faith and objectively reasonable. Therefore, defendant's motion to suppress all evidence seized as a direct or indirect consequence of the search conducted on June 5, 2015 at 8212 Godwin Falcon Road will be denied.
XI. Motion to suppress intercepted communications [DE 701]
On February 2, 2017, defendant Webb moved to suppress all evidence of or derived from the contents of defendant's intercepted communications, arguing that there was not requisite probable cause to support such a search as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. § 2510 et seq, and the Fourth Amendment to the U.S. Constitution. [DE 701]. The government responded, and no reply was filed. [DE 740]. For the following reasons, the motion is denied.
Title III provides that "[a]ny aggrieved person in any trial . . . before any court . . . may move to suppress the contents of any wire or oral communication intercepted pursuant to [Title III] or evidence derived therefrom . . . ." 18 U.S.C. § 2510(10)(a).
On July 21, 2014, upon an application and 100-page affidavit submitted by then-DEA Task Force Officer Gary Owens, Chief Judge James C. Dever, III, entered an order authorizing the interception of wire communications over Target Telephone #1—a cellular phone subscribed to and used by co-defendant Antoine Myles—for a period of thirty days. On August 21, 2014, upon an application and 140-page affidavit submitted by Officer Owens, Judge Dever entered an order authorizing (1) the extension of the interception of wire communications over Target Telephone #1 and (2) the interception of wire communications over Target Telephone #2—a cellular phone subscribed to and used by defendant Webb—for a period of thirty days. On September 29, 2014, upon an application and 107-page affidavit submitted by Officer Owens, Judge Dever entered an order authorizing (1) the second extension of the interception of wire communications over Target Telephone #1 and (2) the first extension of the interception of wire communications over Target Telephone #2. Again, the order authorized surveillance for a period of thirty days.
On April 26, 2016, an order was issued in this case holding that Judge Dever's order permitting interception of communications over Target Telephone #1, as well Judge Dever's subsequent orders extending interception as it relates to Target Telephone #1, were supported by probable cause. [DE 449]. The Court incorporates by reference as if fully set forth herein the factual and procedural background included in that order which details the factual support and affidavits relied upon by Judge Dever in authorizing these interceptions. [DE 449 at 2-13].
Title III regulates the interception of wire, electronic and oral communications, which is otherwise a felony, 18 U.S.C. § 2511. The procedure to intercept such communications appears in 18 U.S.C. § 2518. Under Title III, a judge may authorize a wiretap by law enforcement officers provided the application and the court order authorizing the interception include certain specific information. Id. § 2518(1), (4). Title III specifies what information the application must contain. Id. § 2518(1)(a)-(f). Wiretap orders authorize a maximum surveillance period of 30 days which begins to run no later than 10 days after the order is entered. 18 U.S.C. § 2518(5).
To authorize a wiretap, a court must determine, on the basis of facts submitted by the applicant, that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." Id. § 2518(3)(c). The court must also determine that there is probable cause to believe (1) an individual was committing, had committed, or is about to commit a particular offense enumerated in 18 U.S.C. § 2516; (2) communications concerning that crime will be obtained through the wiretap; and (3) "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).
Such offenses include "any offense involving . . . the manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic drugs, marihuana, or other dangerous drugs, punishable under any law of the United States," as alleged here. 18 U.S.C. § 2516(1)(e).
"The probable cause required for issuance of a wiretap order is the same as that which is necessary to obtain the issuance of a search warrant." United States v. Eccleston, 615 F. App'x 767, 779 (4th Cir. 2015); accord United States v. Miller, 50 F. Supp. 3d 717, 724 (D. Md. 2014). Probable cause exists where, "given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). "Probable cause is a practical, common-sense question that is to be resolved by determining those probabilities based upon the totality-of-the-circumstances presented in each individual case." United States v. Stephens, No. 2:14-CR-01, 2014 U.S. Dist. LEXIS 139151 at *7 (W.D. Va. Oct. 1, 2014).
"The availability of suppression for statutory violations, as opposed to constitutional violations, turns on provisions of the wiretap statute 'rather than the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights."' United States v. Owen, No. 91 -5458, 1992 U.S. App. LEXIS 14265, at *3 (4th Cir. June 17, 1992) (quoting United States v. Donovan, 429 U.S. 413, 432-33 n.22 (1977)). Wiretap evidence and its fruits may be suppressed on the following grounds: "(i) the communication was unlawfully intercepted; (ii) the [wiretap] order . . . is insufficient on its face; or (iii) the interception was not made in conformity with the [wiretap] order . . . ." 18 U.S.C. § 2518(10)(a). In such instances, "no part of the contents of [the intercepted] communication and no evidence derived therefrom may be received in evidence . . .". 18 U.S.C. § 2515.
There is a "presumption of validity" for wiretaps that have issued. United States v. Errera, 616 F. Supp. 1145, 1149 (D. Md. 1985); see United States v. Concepcion, 579 F.3d 214, 217 (2d Cir. 2009) (the reviewing court must ensure only that "the facts set forth in the application were minimally adequate" to support the granting of the wiretap). Indeed, "the fact that the issuing judge found probable cause is itself a substantial factor tending to uphold the validity of the order so issued." Errera, 616 F. Supp. at 1149 (quoting United States v. Becker, 334 F. Supp. 546, 549 (S.D.N.Y. 1971)); see United States v. DePew, 932 F.2d 324, 327 (4th Cir. 1991) (explaining that "[g]reat deference is normally paid" to the determination of the issuing judge, who is "in the best position to determine if probable cause has been established in light of the circumstances as they appear at the time"). "[T]he burden is on defendant to show illegality in connection with the issuance of the wiretap order." Miller, 50 F. Supp. 3d at 725 (citing United States v. Matlock, 415 U.S. 164, 177 (1974)).
Defendant challenges the orders issuing intercept of his communications pursuant to 18 U.S.C. § 2518(3)(a), arguing that the facts set forth in the affidavit for the order were insufficient to establish probable cause to believe that the defendant himself was involved in criminal activity as described in 18 U.S.C. § 2516 and as required by the Fourth Amendment. The defendant does not challenge the order on any other grounds of Section 2518(3).
Defendant first argues that the information in the affidavit was several years prior to the application and too remote from the pertinent time period to offer evidentiary value. While the age of the information supporting a wiretap application is a factor in determining probable cause, it alone does not determine staleness. Rather, whether information submitted in support of a wiretap order is stale is an issue that is decided on the peculiar facts of each case. Sgro v. United States, 287 U.S. 206, 210-11 (1932); United States v. Brewer, 204 F. App'x 205, 207 (4th Cir. 2006). Indeed, also relevant are "the reliability of the sources of information, the nature of the alleged illegal activity, the duration of that activity in the location in question, and the nature of the evidence being sought." United States v. McGrath, 622 F.2d 36, 42 (2d Cir. 1980); accord Brewer, 204 F. App'x at 207 (explaining the court must "look to all the facts and circumstances of the case, including the nature of the unlawful activity alleged [and] the length of the activity . . . .").
"When the affidavit describes a continuing course of illegal conduct, the passage of time between the last described act and the application for the warrant becomes less significant." United States v. Feola, 651 F. Supp. 1068, 1090 (S.D.N.Y. 1987) (internal citation removed). Accordingly, "courts traditionally allow a fairly long period of time to elapse between information and [the issuance of a warrant or wiretap order] in cases where the evidence shows a long-standing, on-going pattern of criminal activity." United States v. Degaule, 797 F. Supp. 2d 1332, 1356 (N.D. Ga. 2011); see Brewer, 204 F. App'x at 208 (explaining "[t]he ongoing nature of the drug trafficking operation rendered the recency of the information in the affidavit less crucial, and suggested that probable cause was not diminished solely by the passage of time") (internal brackets and citations omitted). As the Fifth Circuit Court of Appeals observed, the passage of time "is even more defensible in wiretap cases than in ordinary search warrant cases, since no tangible objects which can be quickly carried off are sought." United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978).
Given the nature and specificity of the information in the affidavits, as summarized and incorporated herein in the previous order entered in this case, [DE 449 at 2-13], the court finds that the information was not too stale too support a finding of probable cause to grant the wiretap applications. The government's theory is not that the drug trafficking organization of which defendant was a part had only recently begun dealing in illegal drugs, but instead that it has been doing so, on a systematic and ongoing basis, as continuous as co-defendant Antoine Myles' and defendant Webb's respective incarcerations permitted. Indeed, the affidavit provides a continuing series of incidents over many years involving either the sale, manufacture or distribution of crack cocaine that are all connected in one form or another to co-defendant Antoine Myles, defendant Webb, their distributors and the various mobile homes located on Godwin Falcon Road.
Moreover, defendant does not address more recent information contained in the affidavits authorizing intercept of his communications which indicated that the alleged criminal activity was ongoing and recent. These affidavits included evidence of controlled buys undertaken from 2003 to 2014, information from confidential informants indicating that defendant had purchased quantities of cocaine from 2005 to 2012 from defendant or in which defendant was present, and communications intercepted from Target Telephone #1 used by co-defendant Antoine Myles which further implicated defendant as part of this drug-trafficking organization. [DE 449 at 2-13]
Defendant also argues that the telephone conversations between co-defendant Antoine Myles and the defendant were "subject to interpretation as to their meaning." [DE 701 at 3]. "In making a determination of probable cause the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of non-criminal acts." Gates, 462 U.S. at 295 n. 13. Even if such conversations could be subject to multiple interpretations, such a fact does not by itself eliminate probable cause. Officers can properly rely on the context of such conversations coupled with their experience and training to determine if the terminology, language, and information shared in a conversation is related to narcotics or drug trafficking.
Additionally, defendant's arguments fail to overcome the high level of deference owed to Judge Dever's probable cause determination. Such drug trafficking conspiracies as that set forth in the affidavit are "the very paradigm of the continuing enterprises for which the courts have relaxed the temporal requirements of non-staleness. Indeed, if a criminal enterprise is appropriately extended, information can remain fresh for probable cause purposes for years." Feola, 651 F. Supp. at 1090-91. Here, viewing the evidence as a whole, the application portrays a single continuing course of criminal activity, extending well over fourteen years. See, e.g., United States v. Spikes, 158 F.3d 913, 924 (6th Cir. 1998) (finding information in affidavit was not stale because it described "the manufacture and trafficking of crack cocaine over a four year period of time"). Furthermore, to the extent the information in the affidavit from 2000 and 2001 could be considered stale, the more recent events related therein refreshed this otherwise stale information. See United States v. Rubio, 535 F. App'x 251, 255 (4th Cir. 2013) ("Where recent information corroborates otherwise stale information, probable cause may be found.") (quoting Emery v. Holmes, 824 F.2d 143, 149 (1st Cir. 1987)). Accordingly, the court finds Officer Owens' initial affidavit and subsequent affidavits demonstrated probable cause to support the authorization of the wiretaps by Judge Dever.
Finally, defendant fails to offer any evidence to suggest that Officer Owens did not rely upon the wiretap applications in good faith. See Brewer, 204 F. App'x at 208 (holding the good faith exception to the Fourth Amendment exclusionary rule, as articulated in United States v. Leon, 468 U.S. 897 (1984), applies in the Title III context); see, e.g., Miller, 50 F. Supp. 3d at 729 (finding "law enforcement officers were entitled to rely on facially valid wiretap orders"). No credible evidence exists that Judge Dever was knowingly misled or wholly abandoned his judicial role. See Leon, 468 U.S. at 923. Nor were the affidavits so facially deficient or so lacking in probable cause that reliance upon the wiretap orders was unreasonable. Id.
The First, Eighth and Eleventh Circuits have held the same, see United States v. Lomeli, 676 F.3d 734, 742 (8th Cir. 2012) (citing United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994)); United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988); United States v. Vest, 842 F.2d 1319, 1334 (1st Cir. 1988), while the Sixth Circuit has held to the contrary, see United States v. Rice, 478 F.3d 704, 711-12 (6th Cir. 2007).
For these reasons, the Court finds that the facts laid out in the affidavit relied upon by Judge Dever set forth a sufficient basis for probable cause to believe that defendant did or would commit criminal activity relating to illegal narcotics and that interception of his communications was likely to reveal evidence of that criminal activity. Therefore, defendant's motion will be denied.
CONCLUSION
For the foregoing reasons, defendant Webb's:
I. motion for release of Brady/Giglio materials (adopted by Antoine Myles) [DE 689] is GRANTED;
II. motion for disclosure of government trial exhibits (adopted by Antoine Myles and Cleveland Myles) [DE 690] is GRANTED;
III. motion in limine to exclude non-testifying co-defendant statements (adopted by Antoine Myles and Cleveland Myles) [DE 691] is DENIED;
IV. motion in limine to exclude lay opinion testimony (adopted by Antoine Myles and Cleveland Myles) [DE 692] is DENIED;SO ORDERED, this 6th day of April, 2017.
V. motion to adopt co-defendant Antoine Myles' motion to suppress [DE 693] is GRANTED;
VI. motion to sequester (adopted by Antoine Myles) [DE 694] is GRANTED,
VII. motion for disclosure of 404(b) evidence [DE 695] is GRANTED;
VIII. motion to identify informants (adopted by Antoine Myles) [DE 698] is DENIED,
IX. amended motion to suppress custodial statements [DE 699] is DENIED;
X. motion to suppress [DE 700] is DENIED;
XI. and motion to suppress intercepted communications [DE 701] is DENIED.
/s/_________
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE