United States v. Addarius Martinez , 493 F. App'x 467 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4438
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADDARIUS ABEL MARTINEZ,
Defendant - Appellant.
No. 11-4564
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON TYLER SOMERVILLE,
Defendant - Appellant.
No. 11-5052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAYMOND GARFIELD BUTLER,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:08-cr-00442-JFM-2; 1:08-cr-00442-JFM-1; 1:08-cr-
00442-JFM-4)
Submitted: July 20, 2012 Decided: September 7, 2012
Before TRAXLER, Chief Judge, and SHEDD and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Nicholas J. Vitek, VITEK LAW LLC, Baltimore, Maryland, for
Appellant Addarius Abel Martinez; Michael Lawlor, LAWLOR &
ENGLERT, LLC, Greenbelt, Maryland, for Appellant Aaron Tyler
Somerville; Gerald C. Ruter, LAW OFFICE OF GERALD C. RUTER, PC,
Rosedale, Maryland, for Appellant Raymond Garfield Butler. Rod
J. Rosenstein, United States Attorney, Christopher J. Romano,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Addarius Martinez, Aaron Somerville, and Raymond Butler
(“Appellants”) appeal their drug conspiracy convictions.
Finding no error, we affirm.
I.
In 2004, members of the Cecil County Maryland Drug Task
Force (CCDTF), the Kent County Maryland Drug Task Force, and the
Baltimore/Washington High Intensity Drug Trafficking Area
(HIDTA) began investigating a drug distribution organization led
by Somerville, who resided in the Cecilton area of Cecil County,
Maryland, and Martinez, who resided in Chestertown, Kent County,
Maryland. The organization sold primarily cocaine and cocaine
base. Between August 2006 and April 2008, CCDTF utilized
confidential informants to make several controlled purchases
from Somerville in Cecil County.
Based on information investigators had gathered, on June 2,
2008, the Cecil County State’s Attorney applied to Cecil County
Circuit Judge O. Robert Lidums for authorization to intercept
calls over Somerville’s cellular telephone. Judge Lidums
approved the request and issued an order authorizing the
wiretap. In so doing, he determined that there was probable
cause to believe that Somerville and others were violating and
3
were about to violate Maryland’s controlled dangerous substance
laws.
The resulting interception of Somerville’s calls yielded
significant additional evidence of Martinez’s involvement in
Somerville’s organization. For example, in a June 6, 2008, call
to Javon McClinton, who was an identified drug associate of
Somerville and Martinez, Somerville stated that he could not get
Martinez to answer the phone and then instructed McClinton to
“tell him do we got the other software together?” J.A. 202
(internal quotation marks omitted). When McClinton advised
Somerville that “he got them in,” Somerville then advised
McClinton, “I’m coming to get the other thing of software . . .
I’ll be right there.” J.A. 202 (internal quotation marks
omitted). Three minutes later, Somerville received a call from
Martinez in which Martinez told Somerville, “Jay told me, say
about the other half, like when you come back, I can give you a
little bit more because I didn’t even get that much . . . .
I’ma sell all this out so I can get, go ahead and get some
more.” J.A. 203 (internal quotation marks omitted). He then
advised Somerville, “[W]e won’t add until you have no more of
that s**t.” J.A. 203 (internal quotation marks omitted). From
their experience, the investigators recognized that “software”
referred to powder cocaine, and these conversations confirmed to
them that Martinez was “frequently supplying cocaine to
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Somerville for him to use in his drug distribution network.”
J.A. 203.
The wiretap also provided evidence of Butler’s role as a
supplier to Somerville’s organization. In a June 12, 2008,
call, Somerville asked Butler about drug prices. J.A. 203.
Butler indicated that he would attempt to obtain six to eight
kilograms of cocaine when he met with his suppliers the next
day, realizing that Somerville and several others were
interested in buying them.
Some of the intercepted calls also indicated that Butler
was distributing drugs to customers in Cecil County other than
Somerville and that he had plans to continue. For example, in
one call Butler had admitted conducting drug transactions on the
night of June 12, 2008, in the Cecil County town of North East.
In this same call, Butler relayed that he and Martinez had been
discussing that several Cecil County towns were “wide open,”
meaning that they lacked mid-level dealers. J.A. 204 (internal
quotation marks omitted). In a call made on June 20, 2008, a
customer told Butler that she had heard he had heroin and
cocaine, prompting him to tell her that he would head toward
North East, where she was located. (Detectives observed a
meeting in North East later that night between the two.) In
another call, Butler and Somerville discussed a Cecil County
location that Butler had previously indicated he was in the
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process of setting up as a location to distribute drugs. And,
in another conversation concerning the market for selling
cocaine in Maryland, Somerville asked Butler to look into the
Cecil County community of Elkton, asserting that there were many
cocaine customers that could use a supplier of Butler’s
magnitude.
Because of information developed from the wiretap on
Somerville’s phone, on June 16, 2008, detectives applied to
Judge Lidums for authorization to intercept calls to and from
Martinez’s cellular telephones, and on June 19, 2008, they
applied for authorization from Judge Lidums to intercept calls
to and from Butler’s cellular telephone. Again, Judge Lidums
determined there was probable cause to believe that Somerville
and others, including Martinez and Butler, were then committing
and about to commit violations of the controlled dangerous
substance laws of Maryland, and that the offenses were occurring
in Cecil County, Maryland. 1
On September 16, 2008, a federal grand jury returned a two-
count indictment. Count One charged that from in or about June
2008 through in or about July 2008 Somerville, Martinez, and
1
As a result of intercepting Butler’s calls, members of the
CCDTF learned that Butler had an additional cell phone that he
used in the drug conspiracy. As a result, they applied for and
were granted authorization to intercept calls over that line as
well.
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McClinton conspired with each other and others to distribute and
possess with intent to distribute five grams or more of cocaine
base and 500 grams or more of cocaine hydrochloride, in
violation of 21 U.S.C.A. § 846 (West 1999). Count Two charged
that on or about July 15, 2008, Martinez and McClinton possessed
with intent to distribute a quantity of a mixture or substance
containing cocaine hydrochloride, in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1999). A superseding indictment later named
Butler as an additional defendant in Count One.
Appellants each moved unsuccessfully to suppress the
wiretap evidence. 2 The district court denied their motions,
however, and they each pled guilty to Count One pursuant to
written plea agreements that reserved the right to appeal the
denial of their motions to suppress. Martinez, Somerville, and
Butler were sentenced to prison terms of 92 months, 102 months,
and 156 months respectively.
II.
Appellants first argue that the district court erred in not
granting their motions to suppress on the basis that the various
2
McClinton pled guilty to Count One of the superseding
indictment and is not involved in this appeal.
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wiretap applications did not sufficiently demonstrate the need
for the wiretaps. We disagree.
Electronic eavesdropping by law enforcement is governed by
the federal wiretap statute. See 18 U.S.C.A. § 2510 et seq.
(West 2000 & Supp. 2012); United States v. Oriakhi, 57 F.3d
1290, 1298 (4th Cir. 1995). To obtain authorization for a
wiretap under that statute, the government must establish, in
addition to probable cause, 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.” 18
U.S.C.A. § 2518(3)(c). This burden “is not great, and the
adequacy of such a showing is to be tested in a practical and
commonsense fashion that does not hamper unduly the
investigative powers of law enforcement agents.” United States
v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994) (citation and
internal quotation marks omitted). The government “need only
present specific factual information sufficient to establish
that it has encountered difficulties in penetrating the criminal
enterprise or in gathering evidence—to the point where
wiretapping becomes reasonable.” Id. at 1298 (alterations,
citation, and internal quotation marks omitted).
We review the factual findings underlying a district
court’s ruling on a motion to suppress for clear error and
review its legal conclusions de novo. See United States v.
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Wilson, 484 F.3d 267, 280 (4th Cir. 2007). We review for abuse
of discretion an authorizing court’s determination that a
wiretap was necessary. See id.We find no such abuse here. Each wiretap application
contains an affidavit setting forth in great detail the
investigative techniques that had been employed to that point.
They included utilizing (or attempting to utilize) confidential
informants, undercover purchases, stationary and mobile
surveillance, financial investigation, dialed number recorders,
telephone subscriber information, search and seizure warrants,
abandoned trash, and records checks. The affiants explained
that although these methods yielded significant evidence, they
were not sufficient to achieve their goals, such as successfully
apprehending and prosecuting local coconspirators and then-as-
yet unidentified individuals higher up in the distribution
scheme, identifying the location of stash houses and obtaining
the evidence necessary to seize drug proceeds.
Appellants contend that after being granted authorization
to intercept and record Somerville’s calls, investigators took
relatively few additional investigatory steps with regard to
Martinez and Butler. However, the question of whether
particular investigatory steps were taken before or after
officers began listening to and recording Somerville’s calls is
of little importance. As Appellants acknowledge, each
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application must be judged on its own merits. And, to the
extent Appellants maintain that Judge Lidums’s authorization of
the Somerville wiretap eliminated the need for the subsequent
wiretaps, that contention is adequately refuted by the
applicable affidavits.
Appellants next maintain that the district court erred in
refusing to suppress the evidence generated by the Martinez and
Butler wiretaps because the affidavits in support of those
orders provided no allegations of a crime being committed in
Cecil County. Because this claim is raised for the first time
on appeal, our review is for plain error. See United States v.
Olano, 507 U.S. 725, 731-32 (1993). Nevertheless, we find no
error, plain or otherwise.
Under Maryland law, an applicant seeking a wiretap order
must “apply to a judge of competent jurisdiction.” Md. Code
Ann., Cts. & Jud. Proc. § 10-406. In this context, “‘[j]udge of
competent jurisdiction’ means a judge of any circuit court
within the State having jurisdiction over the offense under
investigation.” Md. Code Ann., Cts. & Jud. Proc. § 10-401(8).
In Maryland, a circuit court judge has jurisdiction only over
criminal offenses occurring within the county in which the
circuit court sits. See Md. Code Ann., Cts. & Jud. Proc. § 1-
501 (“Each [circuit court] has full common-law and equity powers
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and jurisdiction in all civil and criminal cases within its
county.” (emphasis added)).
We conclude that the affidavits satisfactorily alleged that
Martinez and Butler were engaged in drug crimes in Cecil County.
The affidavits established that the officers were investigating
the drug distribution organization in which Somerville
distributed narcotics in both Cecil and Kent Counties.
Referencing the earlier-discussed phone conversations and other
evidence, the affidavits contained facts demonstrating probable
cause that Martinez was conspiring with him in this organization
and supplying some of the drugs to be distributed. See United
States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008) (explaining
that a drug purchase combined with “evidence of continuing
relationships and repeated transactions can support the finding
that there was a conspiracy, especially when coupled with
substantial quantities of drugs”). They also contained facts
demonstrating probable cause that Butler was conducting drug
transactions in Cecil County and that he planned to continue to
do so.
III.
In sum, finding no error, we affirm Appellants’
convictions. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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