Filed: Jul. 14, 2020
Latest Update: Jul. 14, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 14, 2020 _ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 20-3019 (D.C. Nos. 6:18-CV-01149-JTM & GERALD BEASLEY, 6:13-CR-10112-JTM-1) (D. Kan.) Defendant - Appellant. _ ORDER DENYING CERTIFICATE OF APPEALABILITY* _ Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges. _ Proceeding pro se,1 Gerald Beasley seeks a Certificate of Appealability (CO
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 14, 2020 _ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 20-3019 (D.C. Nos. 6:18-CV-01149-JTM & GERALD BEASLEY, 6:13-CR-10112-JTM-1) (D. Kan.) Defendant - Appellant. _ ORDER DENYING CERTIFICATE OF APPEALABILITY* _ Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges. _ Proceeding pro se,1 Gerald Beasley seeks a Certificate of Appealability (COA..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 14, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-3019
(D.C. Nos. 6:18-CV-01149-JTM &
GERALD BEASLEY, 6:13-CR-10112-JTM-1)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
_________________________________
Proceeding pro se,1 Gerald Beasley seeks a Certificate of Appealability (COA) to
challenge the district court’s denial of his 28 U.S.C. § 2255 habeas petition. He argues
that, by not challenging the facial validity of the government’s wiretap orders, his trial
counsel provided ineffective assistance of counsel. Because such a Fourth Amendment
challenge would have been meritless, Beasley has not made a substantial showing of a
denial of his Sixth Amendment right to effective assistance of counsel. Accordingly, we
deny a COA and dismiss this case.
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
In view of Beasley’s pro se status, we construe his petition liberally. E.g.,
Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018).
BACKGROUND
On April 1, 2014, a federal grand jury seated in the District of Kansas indicted
Gerald Beasley (Beasley), his sons, Antoine Beasley (Antoine Beasley) and Gerald
Wilson (Wilson), and nine other defendants in a thirty-four count Second Superseding
Indictment. The Indictment charged Beasley with the following crimes:
Possession of a firearm by a convicted felon (Counts 1, 3, 9), in violation of 18
U.S.C. § 922(g);
Possession of a firearm in furtherance of a drug-trafficking crime (Counts 2, 4,
10), in violation of 18 U.S.C. § 924(c);
Maintaining a drug-involved premises (Counts 5, 11, 14), in violation of 21
U.S.C. § 856;
Possessing heroin, cocaine, and cocaine base with intent to distribute (Counts
6, 7, 8), in violation of 21 U.S.C. § 841;
Conspiring to distribute and to possess with intent to distribute cocaine,
cocaine base, heroin, and marijuana (Counts 15, 16, 17, and 18), in violation of
21 U.S.C. § 846;
Conspiring to commit bank fraud (Count 19), in violation of 18 U.S.C.
§§ 1344, 1349;
Committing bank fraud (Counts 20, 21, 22, 23, and 24), in violation of 18
U.S.C. § 1344(2);
Conspiring to commit program fraud (Count 25), in violation of 18 U.S.C.
§ 371;
Money laundering, in violation of 18 U.S.C. § 1956 (Counts 26 and 27); and
Conspiring to commit money laundering (Count 28), in violation of 18 U.S.C.
§ 1956(h).
The Indictment was the product of an extensive investigation by numerous federal
agencies, including the Bureau of Alcohol, Tobacco, Firearms and Explosives, into the
Beasley family’s criminal activity. The most productive facet of that investigation
involved two wiretaps, one for Beasley’s cell phone (Target Telephone # 1, number 316-
409-4289) and one for Antoine Beasley’s cell phone (Target Telephone # 2, number 316-
2
992-9165). As Beasley admits, the wiretaps produced a “mountain of evidence[.]” R. vol.
2 at 305.
Both Beasleys moved to suppress evidence obtained from the wiretaps, arguing
(among other things) that they were issued without probable cause and in contravention
of 18 U.S.C. § 2518(1)(c)’s necessity requirement.2 The court denied the suppression
motions.
Having suffered a significant setback, Beasley decided it was best to cut his losses.
So on August 7, 2017, Beasley signed a plea agreement under Federal Rule of Criminal
Procedure 11(c)(1)(C). In return for the government’s promise to dismiss Counts 1, 3
through 6, 8 through 11, and 14 through 28, Beasley agreed to plead guilty to Count 2
(possession of a firearm in furtherance of a drug-trafficking crime) and Count 7
(possession of cocaine with the intent to distribute). As a factual basis for the plea,
Beasley admitted that he had distributed cocaine from his Kansas residence and from a
restaurant that he owned, “that he possessed [a] Derringer handgun . . . to protect himself,
his product, and his money while he distributed cocaine,” and “that he obtained
significant financial gain as a direct result of his illegal drug distribution[.]” R. vol. 2 at
253–54. Beasley’s plea agreement contained this waiver provision:
The defendant knowingly and voluntarily waives any right to appeal or
collaterally attack any matter in connection with this prosecution, his
conviction, or the components of the sentence to be imposed herein,
including the length and conditions of supervised release, as well as any
2
Section 2518(1)(c) requires that the government include in its wiretap application
“a full and complete statement as to whether or not other investigative procedures have
been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to
be too dangerous[.]”
3
sentence imposed upon a revocation of supervised release. . . . The defendant
also waives any right to challenge his sentence, or the manner in which it was
determined, or otherwise attempt to modify or change his sentence, in any
collateral attack, including, but not limited to, a motion brought under 28
U.S.C. § 2255 (except as limited by United States v. Cockerham, 237 F.3d
1179, 1187 (10th Cir. 2001)), or a motion brought under Federal Rule of
Civil Procedure 60(b).
Id. at 260–61. Important here, in an exception following that waiver, the plea agreement
states that “[n]otwithstanding the foregoing waivers, the parties understand that the
defendant in no way waives any subsequent claims with regards to ineffective assistance
of counsel or prosecutorial misconduct.”
Id. at 261.
On December 11, 2017, the district court accepted Beasley’s plea, sentencing him
to 108 months’ imprisonment and three years’ supervised release.
Less than a year later, on May 5, 2018, Beasley filed a motion under 28 U.S.C.
§ 2255, seeking to vacate his conviction. Attempting to invoke the exception to his
collateral-attack waiver, Beasley raised an ineffective-assistance-of-counsel claim.3
Specifically, he argued that he had been prejudiced by his counsel’s alleged ineffective
performance in not raising three arguments: (i) that the wiretap orders4 were facially
insufficient because they stated that “interceptions may take place when the target
3
Beasley properly brings his ineffective-assistance-of-counsel claim through a
collateral challenge rather than through a direct appeal. See, e.g., United States v. Porter,
405 F.3d 1136, 1144 (10th Cir. 2005).
4
At times, Beasley appears to challenge only the wiretap order for his phone, but
at other times, he appears to challenge both wiretap orders. Because both orders contain
the challenged provision, and because the district court allowed the defendants to
challenge both wiretaps without noting any standing issues, we will refer to both orders
throughout our analysis.
4
telephone is located in any other jurisdiction within the United States”; (ii) that the orders
were facially insufficient under § 2518(4)(b) for not identifying “the nature and location
of the communications facilities as to which, or the place where, authority to intercept is
granted”; and (iii) that because the orders failed to provide the necessary location
information, they were roving wiretaps, meaning they were improperly authorized by a
“Deputy Assistant Attorney General.”5 R. vol. 2 at 295–302.
The district court dismissed Beasley’s § 2255 petition. United States v. Beasley,
No. 13-1012-01-JTM, 2020 WL 416987, at *4 (D. Kan. Jan. 27, 2020). Without
mentioning or considering the exception to Beasley’s collateral-attack waiver, the court
concluded that Beasley had presented “no reason it should not be enforced.”
Id. at *2
(citation omitted). That said, the court noted that, under “the [Plea] Agreement and
Cockerham,” Beasley could challenge his counsel’s alleged ineffective performance in
negotiating his plea agreement.
Id. But the court ruled that Beasley’s ineffective-
assistance claims were unrelated to his plea agreement or waiver and “instead [were]
wholly tangential to the final plea agreement and waiver[.]”
Id.
5
A “roving wiretap” allows government agents “to intercept communications to
and from any cellular phone number used by the target of an investigation.” United States
v. Hermanek,
289 F.3d 1076, 1087 (9th Cir. 2002); see also United States v. Shannon,
766 F.3d 346, 349 n.4 (3d Cir. 2014). To obtain a roving wiretap, an applicant must
establish that the actions of the person under investigation “could have the effect of
thwarting interception from a specified facility.” 18 U.S.C. § 2518(11)(b)(ii). A roving
wiretap must be authorized by “the Attorney General, the Deputy Attorney General, the
Associate Attorney General, an Assistant Attorney General, or an acting Assistant
Attorney General[.]”
Id. § 2518(11)(b)(i).
5
Despite that ruling, the district court next addressed the merits of Beasley’s
petition. The court reasoned that, under Dahda v. United States, 138 S. Ct. 1491 (2018),
his challenge to the geographical scope of the wiretap orders failed because “the
expansive geographic language in the warrant[s] was surplusage[.]” See
id. And though
the court reasoned that Dahda would have prohibited the government from introducing
evidence obtained from a cell phone located outside of Kansas when, at the same time, a
listening post had also been outside of Kansas, the record showed that such a situation
had never occurred. See
id. at *3 (“The record does not indicate that any interception of a
cell phone located outside of Kansas occurred through the means of a listening post
outside of Kansas.”). As for Beasley’s related argument that the orders were facially
insufficient for failing to “explicitly mandate that the listening post be in Kansas,” the
court concluded that no authority “create[d] the explicit location requirement defendant
claims.”
Id. Finally, the orders did not create roving wiretaps, the court concluded,
because they allowed interceptions for only “particular telephones[.]”
Id. at *4.
After rejecting Beasley’s arguments, the court denied a COA, reasoning that
reasonable jurists could not debate that Beasley’s § 2255 petition was procedurally barred
and substantively meritless. Id. at *4–5. Beasley now seeks a COA to challenge the
district court’s dismissal of his § 2255 petition.
DISCUSSION
I. The COA Standard
Beasley must obtain a COA to appeal the district court’s dismissal of his § 2255
petition. See 28 U.S.C. § 2253(c)(1)(B). We will issue a COA only when a § 2255
6
petitioner makes “a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2). Here, the district court dismissed Beasley’s petition on both procedural and
substantive grounds. See United States v. Wicken, 514 F. App’x 721, 723–24 (10th Cir.
2013) (unpublished) (explaining that a court’s enforcement of a “plea waiver” is a
“procedural” ground for dismissal). Beasley therefore faces a double hurdle: he must
show “that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling” and “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S.
473, 484 (2000).
II. Procedural Ruling
We review de novo whether a defendant’s collateral-challenge waiver is
enforceable. See United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008).
In analyzing that issue, we ask three questions: “(1) whether the disputed [claim] falls
within the scope of the waiver of appellate rights; (2) whether the defendant knowingly
and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” United States v. Viera,
674 F.3d 1214, 1217 (10th Cir.
2012) (alteration in original) (internal quotation marks omitted) (quoting United States v.
Hahn,
359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam)). When it comes to
the scope prong, this court held in Cockerham “that a plea agreement waiver of
postconviction rights does not waive the right to bring a § 2255 petition based on
ineffective assistance of counsel claims challenging the validity of the plea or the
waiver.” 237 F.3d at 1187; see also United States v. Ezeah, 738 F. App’x 591, 594 (10th
7
Cir. 2018) (unpublished) (explaining that “a claim of ineffective assistance of counsel in
the negotiation of the plea or waiver” is not waivable under Cockerham (citation
omitted)). Unlike for ineffective-assistance claims targeting the validity or negotiation of
a plea agreement, Cockerham ruled that “ineffective assistance of counsel claims that are
characterized as falling outside that category are waivable.” 237 F.3d at 1187.
Here, the district court concluded that Beasley’s § 2255 petition was within the
scope of the waiver, meaning that the only claims he could bring were Cockerham
ineffective-assistance claims. See Beasley, 2020 WL 416987, at *2, *4. The court
explained that, per his waiver, Beasley could challenge “the negotiation or entering of the
plea agreement or the waiver” but not issues “wholly tangential to the final plea
agreement and waiver[.]”
Id. at *2 (citation omitted). Beasley’s challenge raised the
latter, the court reasoned, so it ruled that the waiver barred his § 2255 petition.
Id.
We conclude that reasonable jurists could debate that procedural ruling. As
discussed, Beasley’s collateral-challenge waiver contains an exception: “Notwithstanding
the foregoing waivers, the parties understand that the defendant in no way waives any
subsequent claims with regards to ineffective assistance of counsel or prosecutorial
misconduct.” R. vol. 2 at 261. Even though Beasley specifically sought to invoke this
exception, the district court failed to mention or analyze it. See Beasley,
2020 WL
416987, at *1–2. That was in error—under the exception, Beasley retained the right to
raise any ineffective-assistance-of-counsel claim, not just Cockerham claims.6
6
Though this court has not weighed in, the Kansas district court has reached
differing conclusions about whether this exception preserves claims outside of
8
Reasonable jurists could debate whether Beasley’s current arguments fall within
the scope of his collateral-challenge waiver; therefore, Beasley has satisfied his burden of
showing that the district court’s procedural ruling is debatable. Yet to receive a COA,
Beasley must also make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
III. Sixth Amendment Right to Effective Counsel
A. Deficient Performance and Prejudice
The Sixth Amendment guarantees that “[i]n all criminal prosecutions,” a
defendant will “have the Assistance of Counsel for his defence.” U.S. Const. amend VI.
Recognizing that such a guarantee rings hollow when a defendant’s counsel stages an
objectively inadequate defense, the Court has reasoned that “the right to counsel is the
right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771
n.14 (1970) (emphasis added) (citations omitted). “A claim of ineffective assistance of
Cockerham. Compare United States v. Ellis, No. 12-20093-01-KHV,
2017 WL 193158,
at *4 (D. Kan. Jan. 18, 2017) (relying on this language to conclude that “the plain
language of the plea agreement permits all claims of ineffective assistance of counsel (not
only those set forth in Cockerham)”), with United States v. Andrews, No. 07-10221-02,
2011 WL 5921329, at *4 (D. Kan. Nov. 28, 2011) (reasoning that the exception
preserved only Cockerham claims because it “pertains to ‘subsequent’ claims and not
those claims which are made ‘in connection with this prosecution, the defendant’s
conviction, or the components of the sentence’”), aff’d on other grounds, 471 F. App’x
824, 827 (10th Cir. 2012) (unpublished). We agree with Ellis’s reasoning. Contrary to
Andrews’s interpretation, the plain language of the exception allows “any subsequent
claims,” not just Cockerham ineffective-assistance claims. R. vol. 2 at 261 (emphasis
added). Moreover, Andrews distorted the exception’s scope by relying on earlier
language in the waiver to alter its meaning—the exception explicitly states that it takes
effect “[n]otwithstanding the foregoing waivers[.]”
Id. And even if the exception were
ambiguous, we must construe it against the government. See
Hahn, 359 F.3d at 1325.
9
counsel presents a mixed question of law and fact which we review de novo.” Hickman v.
Spears, 160 F.3d 1269, 1273 (10th Cir. 1998) (internal quotation marks omitted) (quoting
Brewer v. Reynolds,
51 F.3d 1519, 1523 (10th Cir. 1995)); see also United States v.
Holloway,
939 F.3d 1088, 1097 (10th Cir. 2019).
To show that counsel was constitutionally ineffective, a habeas petitioner must
satisfy two elements. First, the petitioner must show that his or her counsel’s performance
did not meet “an objective standard of reasonableness.” Strickland v. Washington, 466
U.S. 668, 688 (1984). Second, the petitioner must demonstrate “that the deficient
performance prejudiced the defense.”
Id. at 687. When, as here, “defense counsel’s
failure to litigate a Fourth Amendment claim competently is the principal allegation of
ineffectiveness, the defendant must also prove that his Fourth Amendment claim is
meritorious[.]”7 Kimmelman v. Morrison,
477 U.S. 365, 375 (1986). In other words, a
habeas petitioner cannot claim that prejudice resulted from his or her counsel’s failure to
raise a Fourth Amendment challenge if that challenge is groundless. See
id. at 382
(explaining that “a meritorious Fourth Amendment issue is necessary to the success of a
Sixth Amendment” habeas petition invoking Strickland).
7
When a state or federal prisoner has had “an opportunity for full and fair
litigation of a Fourth Amendment claim,” collateral review of the Fourth Amendment
issue is generally unavailable. Stone v. Powell, 428 U.S. 465, 494–95 (1976); United
States v. Cook,
997 F.2d 1312, 1317 (10th Cir. 1993) (extending the Stone bar to § 2255
petitioners). But “[t]he restrictions on federal habeas review of Fourth Amendment
claims announced in [Stone] do not extend to Sixth Amendment claims of ineffective
assistance of counsel where the principal error of counsel was incompetent representation
with respect to a Fourth Amendment issue.” United States v. Owens,
882 F.2d 1493, 1498
n.5 (10th Cir. 1989) (citing
Kimmelman, 477 U.S. at 375). We apply this exception here.
10
That brings us to the key question: are Beasley’s Fourth Amendment challenges
meritorious? We conclude that they are not.
B. Beasley’s Arguments
First, Beasley argues that, under Dahda, the wiretap orders were facially
insufficient. In Dahda, the Court explained that “the contents of any wire or oral
communication” that a wiretap intercepts—and the fruits derived therefrom—must be
suppressed if “the order of . . . approval under which it was intercepted is insufficient on
its face[.]” 138 S. Ct. at 1494 (omission in original) (internal quotation marks omitted)
(quoting 18 U.S.C. § 2518(10)(a)(ii)). An order is insufficient on its face when it fails to
include certain statutorily required information.
Id. at 1498. For instance, because
§ 2518(4)(e) requires that a wiretap order identify “the period of time during which [the]
interception is authorized,” an order that does not provide a time period is facially
insufficient.8 See
id. at 1495 (internal quotation marks omitted).
The issue in Dahda was whether a wiretap order that contained all the required
information was otherwise facially insufficient for purporting to authorize interceptions
8
Section 2518(4) requires that a wiretap order contain the following information:
(a) the identity of the person, if known, whose communications are to be
intercepted; (b) the nature and location of the communications facilities as to
which, or the place where, authority to intercept is granted; (c) a particular
description of the type of communication sought to be intercepted, and a
statement of the particular offense to which it relates; (d) the identity of the
agency authorized to intercept the communications, and of the person
authorizing the application; and (e) the period of time during which such
interception is authorized, including a statement as to whether or not the
interception shall automatically terminate when the described
communication has been first obtained.
11
beyond the court’s territorial jurisdiction. Id. at 1494, 1496–97. The Court first explained
that “an order can permit the interception of communications ‘within the territorial
jurisdiction of the court in which the judge is sitting.’”
Id. at 1495 (quoting 18 U.S.C.
§ 2518(3)). Second, the parties did not dispute, and the Court appeared to agree, “that an
intercept takes place either where the tapped telephone is located or where the
Government’s ‘listening post’ is located.”
Id. (citing § 2510(4)). The problem in Dahda
was that the orders allowed interception when neither the phone nor the listening post
was within the court’s territorial jurisdiction:
It is further Ordered that, in the event TARGET TELEPHONE # 1, TARGET
TELEPHONE # 3 and TARGET TELEPHONE # 4, are transported outside
the territorial jurisdiction of the court, interception may take place in any
other jurisdiction within the United States.
Id. (alteration and emphasis removed).
Even though this jurisdictional issue created a defect in the orders, the Court
concluded that the defect did not render them facially insufficient. Id. at 1498–99.
Because the orders were otherwise valid and included the required information, the
challenged sentence was simply “surplus” and entirely “without legal effect”—the district
court had no power in the first place to “legally authorize a wiretap outside [its]
‘territorial jurisdiction.’”
Id. at 1499. Moreover, the Court reasoned that “the statute itself
presumptively limits every Order’s scope to the issuing court’s territorial jurisdiction.”
Id.
Here, the language that Beasley challenges is nearly identical to the language in
Dahda:
12
IT IS ORDERED FURTHER that in the event that the target facility is
transferred outside the territorial jurisdiction of this court, interceptions may
take place when the TARGET TELEPHONE is located in any other
jurisdiction within the United States.
R. vol. 2 at 374. Like in Dahda, this language is “surplus”—it purports to allow
interceptions when neither the target phone nor the government’s listening post is within
the court’s territorial jurisdiction. But, contrary to Beasley’s argument, the Dahda Court
concluded that such a defect does not render an entire order facially invalid.9
Accordingly, Beasley’s first argument is meritless.
By another route, Beasley’s second argument also tries to establish that the orders
were facially insufficient. Under 18 U.S.C. § 2518(4)(b), an order must contain “the
nature and location of the communications facilities as to which, or the place where,
authority to intercept is granted[.]”10 Beasley admits “that the order[s] identified the
target cell phone[s],” R. vol. 2 at 298, and he does not dispute the district court’s finding
that the orders are “directed at cellular telephone numbers assigned to a Kansas area code
(316) with a listed Kansas address (in the City of Andover),” Beasley, 2020 WL 416987,
at *3. But according to Beasley, this cell phone-location information is immaterial—a
9
Significantly, the district court here explicitly noted that “[t]he record does not
indicate that any interception of a cell phone located outside of Kansas occurred through
the means of a listening post outside of Kansas.” Beasley, 2020 WL 416987, at *3.
Beasley does not challenge that finding. So we fail to see how Beasley suffered any
prejudice. See
Dahda, 138 S. Ct. at 1494 (reasoning that the Dahdas had suffered “no
significant adverse effect” when “none of the communications unlawfully intercepted
outside the judge’s territorial jurisdiction were introduced at trial”).
10
The statute does not define the term “communications facilities.” United States
v. Scurry, 821 F.3d 1, 14 (D.C. Cir. 2016).
13
cell phone cannot count as a communications facility. He reasons that “the location of the
listening post” is instead required because “interceptions do not take place at the location
of the cell phone.” R. vol. 2 at 298, 300.
Beasley is wrong on both counts: cell phones are communication facilities and
intercepts do occur at the location of the cell phone. See, e.g., United States v. Dahda,
853 F.3d 1101, 1112 (10th Cir. 2017) (“Thus, an ‘interception’ under Title III occurs both
where the tapped telephones are located and where law enforcement officers put their
listening post.”), aff’d on other grounds,
138 S. Ct. 1491; United States v. Scurry,
821
F.3d 1, 14 (D.C. Cir. 2016) (concluding that “Congress intended the word ‘facilities’ in
sub-sections 2518(1)(b)(ii) and (4)(b) to encompass cell phones themselves”); United
States v. Hermanek,
289 F.3d 1076, 1086 n.3 (9th Cir. 2002) (“A cellular phone number
is a ‘communications facility.’”); United States v. Ramirez,
112 F.3d 849, 852 (7th Cir.
1997) (“An interception takes place both where the phone is located . . . and where the
scanner used to make the interception is located.” (citations omitted)).11 Here, Beasley
11
Citing United States v. Harpel, 493 F.2d 346, 351 (10th Cir. 1974), Beasley
argues that “interceptions do not take place at any telephone.” R. vol. 2 at 335. In Harpel,
a jury convicted Harpel after he unlawfully intercepted a telephone conversation between
law-enforcement
officers. 493 F.2d at 348. The trial evidence showed that “[t]here were
numerous telephone extensions in the offices at both ends of the conversation[.]”
Id. at
348. Harpel argued that he had not intercepted any wire communication, because “there
can be no interception when a telephone extension is used[.]”
Id. at 350; see also 18
U.S.C. § 2510(5)(a). We agreed, explaining that if a defendant acquired a communication
by using “a telephone employed by the subscriber or user in the ordinary course of its
business,” no interception would occur.
Harpel, 493 F.2d at 351. But because Harpel had
likely intercepted the conversation “by attaching a suction cup to a telephone receiver,”
not by using a telephone in the ordinary course of business, he could not benefit from that
exception.
Id. at 348, 351–52. Contrary to Beasley’s argument, Harpel does not define
where an interception occurs—it merely establishes that an interception does not occur if
14
admits that “the order addressed the nature of the cell phone when it identified the [IMSI]
[international mobile subscriber identity number] and cell phone number in the order.” R.
vol. 2 at 299. The district court also explained that the wiretap orders listed a Kansas area
code and address. Beasley, 2020 WL 416987, at *3. This information was all that was
needed. See, e.g., United States v. Oliva,
705 F.3d 390, 396 n.4 (9th Cir. 2012)
(“Although the ‘nature and location’ of a cellular phone cannot be described in the same
way as that of a land line phone, a cellular phone is itself a ‘facilit[y]’ that can be
sufficiently identified by such features as its telephone number, electronic serial number
(ESN) or international mobile subscriber identity number (IMSI).” (alteration in original)
(citation omitted)); United States v. Goodwin,
141 F.3d 394, 403 (2d Cir. 1997) (“The
government’s affidavits in support of its application clearly identified the facilities to be
tapped by their telephone numbers and by their electronic serial numbers. The
requirements of 18 U.S.C. §§ 2518(1)(b)(ii) and 2518(4)(b) were therefore
satisfied . . . .”).
Finally, Beasley argues that the government “actually obtained a roving
wiretap.”12 R. vol. 2 at 302. To support that argument, he builds on his theory that “cell
a defendant acquires a communication using a telephone in the ordinary course of
business. Id. at 351.
12
Beasley also filed a document in the district court entitled, “Rebuttal of
Presumption.” R. vol. 2 at 355. The document makes various obscure and conclusory
statements, including, for example, that he has been subject to “illegitimate Federal
Agency Administrative” and that he has “Rebut[ted] the Presumption that he has
committed an[] offense against the Laws of the ‘United States’ as defined in Title 18
U.S.C[.] § 5.” Id. at 359, 364. We agree with the district court that the document does not
appear to seek “any specific relief” and that “it shows no grounds for vacating the
15
phones do not have fixed locations” and, therefore, cannot count as “facilities.” Id. at
299. And because the orders identified cell phones and not listening posts, Beasley
contends that the orders cannot qualify as ordinary wiretaps—instead, they are roving
wiretaps. See 18 U.S.C. § 2518(11) (allowing the government to obtain a roving wiretap
without identifying “the facilities from which, or the place where, the communication is
to be intercepted”).
But we have already concluded that, by identifying the cell phones’ numbers,
IMSIs, Kansas area codes, and Kansas address, the wiretap orders included the facility-
location information needed for an ordinary wiretap. That conclusion undercuts Beasley’s
argument that the wiretaps are necessarily roving wiretaps simply because they give the
location for cell phones, not the listening posts. E.g. Goodwin, 141 F.3d at 403 (rejecting
as “plainly incorrect” the reasoning “that because one may rove about with a cellular
telephone interception of a cellular telephone is necessarily a ‘roving wiretap’”); see also
Scurry, 821 F.3d at 14.13 Like Beasley’s other arguments, we conclude that this argument
is meritless.
sentence imposed by the court.” Beasley,
2020 WL 416987, at *4; see also 28 U.S.C.
§ 2253(c)(2) (requiring a petitioner show a “a substantial showing of the denial of a
constitutional right”).
13
Beasley also argues that the wiretap orders’ substance shows that they are
roving wiretaps. First, he argues that the orders permitted interceptions “if the phone is
off the hook or not in use[.]” R. vol. 2 at 301. Second, he points out that the orders
allowed interception at “any changed telephone number or any other telephone
subsequently assigned to or used by the instrument bearing the same ESN or IMSI as the
target telephone.” Id. Neither of these characteristics convert a wiretap into a roving
wiretap. See, e.g., United States v. Gordon,
871 F.3d 35, 43–44 (1st Cir. 2017) (“We can
think of no good reason why Title III’s particularity requirement should be read as
16
CONCLUSION
We conclude that reasonable jurists could debate the district court’s conclusion
that Beasley’s ineffective-assistance claim fell within the scope of his collateral-attack
waiver. Even so, reasonable jurists could not debate whether he received constitutionally
ineffective assistance of counsel—Beasley’s Fourth Amendment arguments are meritless.
Accordingly, we deny a COA and dismiss this case.
Entered for the Court
Gregory A. Phillips
Circuit Judge
limiting a wiretap to a specific telephone number rather than a specific ESN or IMEI
number reasonably believed to be used by the target.”); id. (noting that the “off-the-hook”
language “is standard fare in wiretap applications and its inclusion does not make the
wiretap orders impermissibly broad” (citation omitted));
Oliva, 705 F.3d at 399 (“The
‘off the hook’ language, however, lacks meaning when applied to cellular phones.”).
17
