SELYA, Circuit Judge.
Defendant-appellant Dimitry Gordon strives to persuade us that the district court erred in denying his motion to suppress wiretap evidence and/or in refusing to hold one or more evidentiary hearings in connection therewith. We are not convinced and, therefore, we affirm the challenged orders (that is, the order denying the motion to suppress and the orders denying the two requests for evidentiary hearings).
Around September of 2012, a joint task force spearheaded by the federal Drug Enforcement Administration (DEA), and including state and local law enforcement officers, began investigating a drug-distribution ring centered in Lewiston, Maine. This probe led investigators to identify Romelly Dastinot and Jacques Victor as the likely leaders of the ring.
In the course of its investigation, the task force obtained Dastinot's and Victor's telephone records. That trove of information yielded several text-message exchanges detailing drug transactions.
In addition, the task force implemented a gallimaufry of other investigative strategies. To cite one example, it executed controlled buys from both Dastinot and Victor. Some of the controlled buys implicated the appellant as a lower-level member of the conspiracy, who sold drugs (either oxycodone pills or crack cocaine) on Dastinot's behalf. To cite another example, the task force partnered with confidential sources and turncoat members of the drug ring.
Despite its investigative efforts, the task force was unable to learn either the identity or specific location of the drug ring's suppliers. Nor was the task force able to get a handle on the drug ring's organizational structure. In hopes of catching bigger fish, the government submitted a series of wiretap applications to the district court between February and May of 2014, seeking to monitor a total of five telephones. Only three of the target telephones, known as TT1, TT2, and TT5, are relevant to this appeal (Dastinot used TT1 and TT5, while Victor used TT2). The appellant was identified as a target-subject of the wiretaps even though his own telephone was never tapped.
The affidavit identified the objectives of the wiretap investigation as obtaining:
The affidavit revealed that the task force had learned very little about the drug ring's sources of supply, finances, organizational structure, or the roles of its members.
According to Brown, the task force had mulled a number of additional investigative strategies, but had rejected them as either too risky or too unlikely to yield worthwhile results. In this vein, the task force had decided against conducting more aggressive physical surveillance, attempting to install cameras in selected public locations, obtaining search warrants for known drug-distribution venues, collecting target-subjects' trash, widening the use of grand jury interviews, or attempting to introduce undercover agents into the ring. Brown added that he did not believe that further controlled purchases would yield more information about the drug ring. Nor did he think that either approaching or arresting the target-subjects and asking them to reveal their sources of supply was apt to prove fruitful.
Brown also noted that the task force had considered obtaining cell-site location information for at least some of the telephones. This option was rejected because "the range of error in this type of data prevents narrowing down a precise residence (especially in dense places like Boston and Lewiston)." What is more, the location data are often several minutes behind the actual location of the telephone. And location data alone, he reasoned, whether from cell-site records or from vehicle trackers, would not reveal the identity of the person with whom a target-subject meets or the nature of the encounter.
Brown concluded that wiretapping was "the only available technique that ha[d] a reasonable likelihood of securing the evidence necessary to accomplish the goals of th[e] investigation." His affidavit chronicled
After the district court granted the first of the wiretap applications, the task force set up a wire room to serve as a central location for intercepting and monitoring calls. The room was staffed from 8:00 a.m. to midnight, and any calls not monitored by staff in real time were not recorded. Through the duration of the wiretaps, the authorities intercepted approximately 23,000 completed calls and text messages, many of which were in Haitian Creole (the language of choice for members of the drug ring). Along the way, the government compiled and submitted periodic statistical summaries to the district court.
Armed with, inter alia, the fruits of the wiretapping, a federal grand jury sitting in the District of Maine indicted the appellant and eleven codefendants. The indictment charged the appellant with conspiracy to distribute and possess with intent to distribute controlled substances,
In due course, the appellant moved to suppress the evidence obtained through the wiretaps and requested two kinds of evidentiary hearings. First, he requested a general evidentiary hearing as to the adequacy of the government's minimization procedures. Second, he requested a
The district court heard arguments on these motions on January 28, 2015, but reserved decision. It later ordered the government to submit additional information regarding the statistical makeup of the intercepted conversations. In response, the government submitted Brown's supplemental affidavit dated February 13, 2015, which clarified and corrected the double-counting of some intercepted calls and reported that 14% of the calls lasting more than two minutes had been minimized in some way.
After further briefing, the district court denied not only the motion to suppress but also the twin requests for evidentiary hearings. The appellant thereafter entered a conditional guilty plea to the drug conspiracy count,
Insisting that his motion to suppress the wiretap evidence should have been granted, the appellant, ably represented, attacks the wiretap orders on multiple fronts. We start with his assertion that the orders were insufficiently particular. We next proceed to his claims that wiretapping was unnecessary and that, in all events, the government failed adequately to minimize
Familiar standards of review guide our analysis. When assaying a district court's ruling on a motion to suppress wiretap evidence, we review its factual findings for clear error and its legal conclusions de novo.
With the passage of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III),
Here, the appellant complains that the wiretap orders failed to satisfy Title III's particularity requirements in three respects. He submits that they did not include "a particular description of the type of communication sought to be intercepted,"
The appellant's remonstrance regarding the type of communication sought focuses on the fact that the orders were not limited to existing telephone numbers but, rather, extended to numbers "subsequently assigned to or used by the instruments bearing the same" electronic serial number (ESN) or International Mobile Equipment Identity (IMEI) number as the original tapped telephone. For example, if Dastinot changed the ten-digit telephone number assigned to a particular cellular telephone, the order would automatically cover the new ten-digit number, and the task force would not have to seek a further order every time that number changed. Relatedly, the orders authorized the interception of "background conversations intercepted in the vicinity of the target telephones while the telephones are off the hook or otherwise in use." In the appellant's view, extending the authorizations in this manner rendered them impermissibly broad.
These arguments comprise more cry than wool. Brown's affidavits set forth convincing reasons for tracking telephones by ESN or IMEI number: drug traffickers change telephone numbers frequently in an attempt to avoid detection and, in the bargain, tend not to associate their names with telephone numbers. To cinch the matter, the orders were specific in that they restricted interception to particular serial numbers. We can think of no good reason
The appellant's argument regarding background conversations overheard through an off-the-hook telephone is equally unavailing. This language is standard fare in wiretap applications,
Next, the appellant posits that the wiretap orders are invalid for failing to identify "the particular offense to which" the sought-after communications relate. 18 U.S.C. § 2518(4)(c). The critical fault, he says, is that the orders simply cite statutory sections without providing any broader context. But the appellant sets the bar too high: the enumeration of specific criminal statutes itself serves to identify particular offenses and, thus, satisfies this facet of the particularity requirement.
The overall structure of the statute buttresses this view: an earlier subsection — section 2518(3)(a) — uses the term "particular offense" in reference to "a particular offense enumerated in section 2516." Section 2516, in turn, lists criminal offenses, some by statutory citation and others by even broader descriptions, such as "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." 18 U.S.C. § 2516(1)(e). In light of this provision, abecedarian principles of statutory construction lead to the conclusion that the "particular offense" requirement in section 2518(4)(c) is satisfied when a wiretap order simply lists the charging statute.
The appellant has one last shot in his particularity sling. Title III requires a wiretap order to specify "the agency authorized to intercept the communications." 18 U.S.C. § 2518(4)(d). The appellant assails the description of the authorized agency contained in the wiretap orders as virtually "unbounded."
For one thing, Brown's affidavits made pellucid the DEA's pervasive involvement in the case. For another thing, the wiretap orders specified that the wiretapping would "be executed at a listening post maintained at the United States Drug Enforcement Administration Resident Office, in Portland, Maine." They also described a cooperative effort between Verizon Wireless and the DEA. Given a practical, commonsense reading, we hold that the wiretap orders were sufficiently particular in describing the DEA as "the agency authorized" to conduct the wiretapping.
Even if we assume, for argument's sake, that inclusion of the loose language challenged by the appellant departed from the statutory "agency identification" requirement, the violation would not demand suppression. Not every blemish in an order of authorization demands suppression: such a remedy is required only when there is a failure to satisfy "statutory requirements that directly and substantially implement the congressional intention to limit" wiretaps.
The putative violation of the "agency identification" requirement is more a matter of form than of substance. That lapse, though regrettable, cannot plausibly be said to directly or substantially weaken the protections that Congress sought to craft in connection with wiretapping.
That ends this aspect of the matter. We reject the appellant's importunings and hold that the wiretap orders were not so lacking in particularity as to demand suppression.
In investigating criminal activity, "wiretapping is to be distinctly the exception — not the rule."
In the Title III lexicon, necessity is not an absolute. Rather, it must be viewed through the lens of what is pragmatic and achievable in the real world.
This does not mean, though, that the government is "required to show that other investigatory methods have been completely unsuccessful."
On appeal, our task is not to undertake a de novo determination of necessity as if we were deciding whether to issue the wiretap order.
Brown's affidavits related that it was not until early 2014 — approximately a year and a half into the investigation — that the government turned to wiretaps. At that point, the task force already had employed a myriad of investigative techniques, including the use of confidential sources, physical surveillance, controlled buys, analysis of telephone data and public records, and the issuance of subpoenas (both administrative subpoenas and grand jury subpoenas). Extensive use of these tools had left the agents in the dark about important matters such as the drug ring's sources of supply, its organizational structure, and its finances. By the same token, Brown spelled out plausible reasons for not employing certain other strategies. The task force did not want to attempt more intensive use of undercover agents or cooperating sources for fear of arousing suspicion.
To be sure, the task force had considered simply revealing its evidence, at least in part, to selected coconspirators and attempting
Other methods considered but left by the wayside included cell-site location data and vehicle tracking. Brown plausibly explained that the "range of error" of the cell-site data provided by Verizon Wireless prevented that data from being very useful, "especially in dense places like Boston and Lewiston." At any rate, the data would not be able to "narrow[] down a precise residence" in such areas. With respect to multi-unit buildings (common in Boston and Lewiston), targeting a particular building through location data would not serve to identify individual conspirators. More critically, neither the cell-site data nor vehicle tracking could reveal the purpose for the conspirator's movements, the identity of the persons with whom they were meeting, or the purposes of those meetings. To obtain this kind of intelligence, Brown believed that wiretapping was needed.
The short of it is that Brown's affidavits, read as a whole, show that the task force carried out a long-lasting, wide-ranging, good-faith investigation that ran the gamut of standard investigative techniques. Those affidavits reflect a careful and rational balancing of the utility of various investigatory tools against the possibility of prematurely alerting the drug ring to the probe. The foundation laid in Brown's affidavits substantiates a plausible judgment that the investigation had reached a point at which wiretapping was reasonably necessary. We conclude, therefore, that the wiretap applications were more than minimally adequate to justify the wiretap orders. It follows that the appellant's necessity challenge fails.
Title III warns monitors to minimize irrelevant calls.
Blanket suppression of wiretap evidence is a "drastic" remedy, which should be reserved for the most "egregious" cases.
As a general matter, whether the government fails adequately to minimize intercepted conversations "depend[s] on the facts and circumstances of each case."
In this instance, the first two factors weigh heavily in the government's favor. The sprawling operations of the drug ring and the complexity of the suspected crimes are manifest. In cases like this one, involving drug conspiracies of indeterminate proportions, "the need to allow latitude to eavesdroppers is close to its zenith."
To add to the complexity, the appellant and his confederates frequently spoke in Haitian Creole and employed code names on many occasions. The use of "codes and specialized jargon" furnish an added reason for affording monitors leeway because, in such cases, more context is needed to determine whether a conversation is related to the suspected crimes.
Importantly, the scope of the conspiracy was unknown at the time that the wiretaps were authorized. Indeed, an animating purpose behind the wiretap applications was to flesh out the structure of the organization and to identify the drug ring's sources of supply. These uncertainties also counsel in favor of granting wider latitude to the monitors.
Here, moreover, the thoroughness of the government's precautions to bring about minimization is unquestioned. The record reflects that the government established a regime of adequate precautions designed to ensure that monitors were appropriately minimizing irrelevant conversations. All monitors had to confirm in writing that they had read the wiretap applications and supporting affidavits, the wiretap orders, and an instructional memorandum detailing proper minimization procedures. These documents were posted in the monitors' workplace for easy reference. Prosecutors also met with government agents to brief them on minimization standards.
The third factor is not quite as clear-cut; in the end, though, we think that the record indicates sufficient judicial supervision.
It is the contents of these statistical reports that bring us to the crux of the
Before us, the appellant focuses on the percentage of non-pertinent calls that were not minimized in any way (98%, according to his calculations). Such percentages, though, tell us very little because many calls presumably end before the listener can determine their pertinence. Courts therefore tend to look at the relative percentage of calls minimized out of those calls lasting more than two minutes.
The record points to such an explanation — at least enough of an explanation for us to find that the district court's ruling was not unreasonable and, thus, to justify upholding it. As Brown noted, many calls were in Haitian Creole and/or coded parlance, requiring either the use of translators or other assistants. It is eminently reasonable to conclude that determining the lack of pertinence of such calls would take much longer than usual.
Tellingly, there is no evidence of a slew of examples of calls that plainly should have been minimized in less than two minutes, but were not. Through we do not suggest that defense counsel need have reviewed hundreds of calls, we make the more limited point that if the minimization process had not been an "honest effort,"
Although we uphold the district court's ruling that suppression was not required due to minimization deficiencies, we note that the appellant was at a disadvantage in manipulating the wiretap data. The government produced the logs for more than 20,000 telephone calls and text messages in the form of 10,000-plus pages in portable document format (PDF). Converting the 10,000 pages of PDFs into a workable spreadsheet would require inordinate time, effort, and resources. The government had available to it, and most likely should have produced the data in, a more serviceable format.
We end our journey by examining the appellant's twin requests for evidentiary hearings — his request for a general evidentiary hearing on his failure-to-minimize argument, and a
No criminal defendant has "a presumptive right to [a general] evidentiary hearing on a motion to suppress."
In the case at hand, the appellant alleges that he presented a colorable, fact-intensive claim as to whether the government appropriately minimized his communications. That claim, he says, could only be resolved after an evidentiary hearing. We do not agree.
The district court was adequately apprised of the facts relating to minimization through the parties' filings, particularly after the government furnished supplemental information (at the court's direction) explaining its minimization tallies more thoroughly. The Supreme Court has noted the "necessarily ad hoc nature" of minimization determinations and has emphasized the need for flexibility in judicial oversight.
This leaves the appellant's request for a
Here, the appellant alleges that Brown's affidavits contained false statements with respect to the existence of probable cause vis-à-vis money laundering, the efficacy of cell-site location data, and the likelihood that wiretapping would allow the task force to identify assets of the conspiracy and the precise roles of the individuals involved.
The statements to which the appellant adverts, though, are as much matters of opinion as matters of fact, and the appellant has made no convincing showing that Brown knew the statements were false, yet nonetheless included them in his affidavits.
We add, moreover, that all of the challenged statements appear to have had a reasonable basis in fact. With respect to the money-laundering statements, Brown did not need to have probable cause to believe that the appellant himself was engaging in money laundering. He only needed probable cause to believe that some members of the conspiracy were so engaged. The record adequately evinces that Brown had probable cause to believe that some members of the drug ring were engaging in money laundering; after all, Brown's affidavits presented a detailed showing of repeated buying and selling of drugs, which gave rise to a commonsense inference that the members of the drug ring must have been participating in some kind of scheme to protect and launder their profits.
As to the cell-site location data, the appellant did not proffer enough facts to demonstrate that Brown's statements were false, much less knowingly so. While the appellant's brief relies heavily on a document submitted to the district court (a Verizon Wireless publication for law enforcement officers), the district court took this document into account,
We need not linger long over the appellant's allegations that Brown either dissembled or made statements in reckless disregard of the truth when he stated that the task force hoped to learn through the wiretaps about the precise roles of conspirators and the whereabouts of the drug ring's assets. In support, the appellant suggests that these goals were too broad to be reasonably achievable. This contention does not withstand scrutiny.
The goals of identifying a drug conspiracy's organizational structure (at least in rough terms) and locating its assets are
To say more would be to paint the lily. We hold, without serious question, that the district court did not commit reversible error in refusing to convene either a general evidentiary hearing or a
We need go no further. For the reasons elucidated above, the orders of the district court are