Opinion
8:21-cr-71-WFJ-AAS
06-18-2024
UNITED STATES OF AMERICA v. PIERRE C. MARC
ORDER DENYING DOC. 351, MOTION FOR NEW TRIAL DUE TO NEWLY DISCOVERED EVIDENCE
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
In docket 351, Mr. Marc seeks a new trial under Fed. R. Crim. P. 33(a), asserting newly discovered evidence. He apparently cites a pen register/trap trace device ("trap") application for his phone that was unsigned, and he or his standby counsel may have received in discovery. The instant motion states that the Magistrate Judge declined to sign the trap Order, and notwithstanding this refusal the Government proceeded to tap his phone. See Doc. 351 at 1. His motion attaches the first page of the application and this unsigned trap order at Doc. 351-1 at 1 (Exh. OUS, hand marked 6 of 12). The unsigned Order Mr. Marc attaches shows a September 2019 date line with the date and Magistrate Judge's signature blank. Id. at 5. Mr. Marc is mistaken, however. The Order was indeed signed and entered on date September 18, 2019, and is duly kept in the Clerk's office in Tampa. The full Application and completed Order is attached hereto as an Appendix and both are a Court record.
The Government also provided their copy of this signed Order as part of their response. Doc. 364-1. Further, they credibly note that the unsigned draft and then the signed Order was provided in discovery to Mr. Marc. Docs. 355 at 4; 3551 (discovery index); 364-1(the signed Order with discovery production Bates numbers). Thus, the entire premise of the motion is entirely without merit. There is no recently discovered evidence: The trap Order was duly and appropriately signed by the Magistrate Judge on the dated inscribed. It is present in the Clerk's routine files. Mr. Marc received it in discovery, and through diligence would have viewed as part of discovery.
The Motion also goes on to complain, opaquely, that the drug quantity in the conspiracy count was not established with a physical trial exhibit and that amount would have to be subdivided and subtracted for each participant for legal attribution among the number of coconspirators. Doc. 351 at 3. This is a frivolous argument. Nor is it “newly discovered evidence,” thus rendering such a Rule 33 motion on this point untimely under Fed. R. Crim. P. 33(b)(2). The Motion for new trial, Doc. 351, is denied.
DONE AND ORDERED.
IN RE APPLICATION OF THE UNITED STATES OF AMERICA FOR AN AUTHORIZING THE INSTALLATION AND USE OF PEN REGISTER AND TRAP DEVICE ON CELLULAR TELEPHONE NUMBER 727 517-6757
MISC. No. 8:19MJ2241TGW
ORDER
APPLICATION
The United States of America, moving by and through David C. Waterman, its undersigned counsel, respectfully submits under seal this ex parte application for an order pursuant to 18 U.S.C §§ 3122 and 3123, authorizing the installation and use of a pen register and trap and trace device (“pen-trap device”) to record, decode, and/or capture dialing, routing, addressing, and signaling information associated with each communication to or from the cell phone number (727) 517-6757, whose service provider is AT&T, and it is described more fully in Attachment A. The associated phone is believed to be operated by Pierre Marc, a resident of the Middle District of Florida. In support of this application, the United States asserts:
1. This is an application, made under 18 U.S.C. § 3122(a)(1), for an order under 18 U.S.C. § 3123, authorizing the installation and use of a pen register and trap and trace device.
2. Such an application must include three elements: (1) “the identity of the attorney for the Government or the State law enforcement or investigative officer making the application”; (2) “the identity of the law enforcement agency conducting the investigation”; and (3) “a certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.” 18 U.S.C. § 3122(b).
3. The undersigned applicant is an “attorney for the government” as defined in Rule 1(b)(1) of the Federal Rules of Criminal Procedure.
4. The law enforcement agency conducting the investigation is the Drug Enforcement Administration (“DEA”).
5. The applicant hereby certifies that the information likely to be obtained by the requested pen-trap devices is relevant to an ongoing criminal investigation being conducted by the DEA. The investigation concerns possible violations of 21 U.S.C. §§ 841 and 846 by Pierre Marc and individuals both known and unknown.
6. This Court is a “court of competent jurisdiction” under 18 U.S.C. § 3122(a)(2) because it “has jurisdiction over the offense being investigated.” 18 U.S.C. § 3127(2)(A)(i).
ADDITIONAL INFORMATION
7. The following additional information is provided to demonstrate that the order requested falls within this Court's authority to authorize the installation and use of pen-trap devices under 18 U.S.C. § 3123(a)(1).
8. A “pen register” is “a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted.” 18 U.S.C. § 3127(3). A “trap and trace device” is “a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication.” 18 U.S.C. § 3127(4).
9. In the traditional telephone context, pen registers capture the destination phone numbers of outgoing calls, while trap and trace devices capture the phone numbers of incoming calls. Similar principles apply to other kinds of wire and electronic communications, as described below.
10. A cellular telephone, or cell phone, is a mobile device that transmits and receives wire and electronic communications. Individuals using cell phones contract with cellular service providers, who maintain antenna towers covering specific geographic areas. In order to transmit or receive calls and data, a cell phone must send a radio signal to an antenna tower that, in turn, is connected to a cellular service provider's network.
11. In addition to a unique telephone number, each cell phone has one or more unique identifiers embedded inside it. Depending upon the cellular network and the device, the embedded unique identifiers for a cell phone could take several different forms, including an Electronic Serial Number (“ESN”), a Mobile Electronic Identity Number (“MEIN”), a Mobile Identification Number (“MIN”), a Subscriber Identity Module (“SIM”), an International Mobile Subscriber Identifier (“IMSI”), a Mobile Subscriber Integrated Services Digital Network Number (“MSISDN”), or an International Mobile Station Equipment Identity (“IMEI”). When a cell phone connects to a cellular antenna or tower, it reveals its embedded unique identifiers to the cellular antenna or tower, and the cellular antenna or tower records those identifiers as a matter of course. The unique identifiers-as transmitted from a cell phone to a cellular antenna or tower-are like the telephone number of an incoming call. They can be recorded by pen-trap devices and indicate the identity of the cell phone device making the communication without revealing the communication's content.
12. In addition, a list of incoming and outgoing telephone numbers is generated when a cell phone is used to make or receive calls, or to send or receive text messages (which may include photographs, videos, and other data). These telephone numbers can be recorded by pen-trap devices and then used to identify the parties to a communication without revealing the communication's contents.
13. A cell phone can also be used to exchange text messages with email accounts. The email addresses associated with those text messages can be recorded by pen-trap devices and then used to identify parties to a communication without revealing the communication's contents.
14. Cell phones can connect to the Internet via the cellular network. When connecting through the cellular network, Internet communications sent and received by the cell phone each contain the same unique identifier that identifies cellular voice communications, such as an ESN, MEIN, MIN, SIM, IMSI, MSISDN, or IMEI. Internet communications from a cell phone also contain the Internet Protocol (“IP”) address associated with that cell phone at the time of the communication. Each of these unique identifiers can be used to identify parties to a communication without revealing the communication's contents.
THE RELEVANT FACTS
15. The United States government, including the DEA is investigating, narcotics trafficking in the Middle District of Florida. The investigation concerns possible violations of 21 U.S.C. §§ 846 and 841(a)(1) by Pierre Marc and individuals both known and unknown.
16. The conduct being investigated involves use of the cell phone number (727) 517-6757 as more fully described in Attachment A. To further the investigation, investigators need to obtain the dialing, routing, addressing, and signaling information associated with communications sent to or from that cell phone number.
17. The pen-trap devices sought by this application will record, decode, and/or capture dialing, routing, addressing, and signaling information associated with each communication to or from the cell phone number described in Attachment A, including the date, time, and duration of the communication, and the following, without geographic limit:
■ Source and destination telephone numbers and email addresses; and
■ Any unique identifiers associated with the cell phone device or devices used to make and receive calls with the cell phone number described in Attachment A, or to send or receive other electronic communications, including the ESN, MEIN, IMSI, IMEI, SIM, MSISDN, or MIN.
GOVERNMENT REQUESTS
18. For the reasons stated above, the United States requests that the Court enter an order authorizing the installation and use of a pen-trap device to record, decode, and/or capture the dialing, routing, addressing, and signaling information described above for each communication to or from the cell phone number described in Attachment A, to include the date, time, and duration of the communication, without geographic limit. The United States does not request and does not seek to obtain the contents of any communications, as defined in 18 U.S.C. § 2510(8).
19. The United States further requests that the Court authorize the foregoing installation and use for a period of 60 days from the date of the Court's order, pursuant to 18 U.S.C. § 3123(c)(1).
20. The United States further requests, pursuant to 18 U.S.C. §§ 3123(b)(2) and 3124(a)-(b), that the Court order AT&T and any other person or entity providing wire or electronic communication service in the United States whose assistance may facilitate execution of this order to furnish, upon service of the order, information, facilities, and technical assistance necessary to install the pen-trap device, including installation and operation of the pentrap device unobtrusively and with minimum disruption of normal service. Any entity providing such assistance shall be reasonably compensated by the DEA, pursuant to 18 U.S.C. § 3124(c), for reasonable expenses incurred in providing facilities and assistance in furtherance of this order.
21. The United States further requests that the Court order AT&T and any other person or entity whose assistance may facilitate execution of this order to notify the applicant and the DEA of any changes relating to the cell phone number described in Attachment A, and to provide prior notice to the applicant and the DEA before terminating or changing service to the cell phone number.
22. The United States further requests that the Court order that the DEA and the applicant have access to the information collected by the pentrap devices as soon as practicable, twenty-four hours per day, or at such other times as may be acceptable to them, for the duration of the order.
23. The United States further requests, pursuant to 18 U.S.C. § 3123(d)(2), that the Court order AT&T and any other person or entity whose assistance facilitates execution of this order, and their agents and employees, not to disclose in any manner, directly or indirectly, by any action or inaction, the existence of this application and order, the resulting pen-trap device, or this investigation, unless and until authorized by this Court, except that AT&T may disclose this order to an attorney for AT&T for the purpose of receiving legal advice.
24. The United States further requests that this application and any resulting order be sealed until otherwise ordered by the Court, pursuant to 18 U.S.C. § 3123(d)(1).
25. The United States further requests that the Clerk of the Court provide the United States Attorney's Office with three certified copies of this application and order, and provide copies of this order to the DEA and AT&T upon request.
26. The foregoing is based on information provided to me in my official capacity by agents of the DEA.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on
Respectfully submitted, MARIA CHAPA LOPEZ United States Attorney
David C. Waterman Assistant United States Attorney
ATTACHMENT A
AT&T
Facility (cell phone numbers)
Device ID
Subscriber, if known
Subject of known investigation, if known
Provider
(727) 517-6757
IMSI No 310410903759381
Tom Hanks
Pierre Marc
AT&T
ORDER
THOMAS G. WILSON United States Magistrate Judge
The United States has submitted an application pursuant to 18 U.S.C. §§ 3122 and 3123 requesting that the Court issue an order authorizing the installation and use of a pen register and trap and trace device (“pen-trap device”) on cell phone number (727) 517-6757, whose service provider is AT&T, and it is described more fully in Attachment A, which is incorporated into this order by reference.
The Court finds that an attorney for the government has submitted the application and has certified that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation being conducted by the Drug Enforcement Administration (“DEA”) of Pierre Marc and individuals both known and unknown in connection with possible violations of Title 21, United States Code, Sections 841 and 846.
IT IS THEREFORE ORDERED, pursuant to 18 U.S.C. § 3123, that the DEA may install and use a pen-trap device to record, decode, and/or capture dialing, routing, addressing, and signaling information associated with each communication to or from the cell phone number described in Attachment A, including the date, time, and duration of the communication, and the following, without geographic limit:
■ Source and destination telephone numbers and email addresses; and
■ Any unique identifiers associated with the cell phone device or devices used to make and receive calls with the cell phone number described in Attachment A, or to send or receive other electronic communications, including the ESN, MEIN, IMSI, IMEI, SIM, MSISDN, or MIN;
IT IS FURTHER ORDERED, pursuant to 18 U.S.C. § 3123(c)(1), that the use and installation of the foregoing is authorized for 60 days from the date of this order;
IT IS FURTHER ORDERED, pursuant to 18 U.S.C. §§ 3123(b)(2) and 3124(a)-(b), that AT&T and any other person or entity providing wire or electronic communication service in the United States whose assistance may, pursuant to 18 U.S.C. § 3123(a), facilitate the execution of this order shall, upon service of this order, furnish information, facilities, and technical assistance necessary to install the pen-trap devices, including installation and operation of the pen-trap devices unobtrusively and with minimum disruption of normal service;
IT IS FURTHER ORDERED that the DEA reasonably compensate AT&T and any other person or entity whose assistance facilitates execution of this order for reasonable expenses incurred in complying with this order;
IT IS FURTHER ORDERED that AT&T and any other person or entity whose assistance may facilitate execution of this order notify the applicant and the DEA of any changes relating to the cell phone number described in Attachment A, including changes to subscriber information, and to provide prior notice to the DEA before terminating or changing service to the cell phone number;
IT IS FURTHER ORDERED that the DEA and the applicant have access to the information collected by the pen-trap devices as soon as practicable, twenty-four hours per day, or at such other times as may be acceptable to the DEA, for the duration of the order;
IT IS FURTHER ORDERED, pursuant to 18 U.S.C. § 3123(d)(2), that AT&T and any other person or entity whose assistance facilitates execution of this order, and their agents and employees, shall not disclose in any manner, directly or indirectly, by any action or inaction, the existence of the application and this order, the pen-trap devices, or the investigation to any person, unless and until otherwise ordered by the Court, except that AT&T may disclose this order to an attorney for AT&T for the purpose of receiving legal advice;
IT IS FURTHER ORDERED that the Clerk of the Court shall provide the United States Attorney's Office with three certified copies of this application and order, and shall provide copies of this order to the DEA and AT&T upon request;
IT IS FURTHER ORDERED that the application and this order are sealed until otherwise ordered by the Court, pursuant to 18 U.S.C. § 3123(d)(1).
Dated: September 18, 2019