United States v. Jamal Cooper ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0116p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 17-5475
v. │
│
│
JAMAL COOPER, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:14-cr-00090-1—Aleta Arthur Trauger, District Judge.
Decided and Filed: June 22, 2018
Before: BOGGS, BATCHELDER, and THAPAR, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Eileen M. Parrish, Nashville, Tennessee, for Appellant. Van S. Vincent, UNITED
STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. The defendant appeals the denial of his
motions to suppress evidence obtained from government wiretaps, claiming that the wiretaps
were not properly authorized. He claims that the affidavit for the wiretap application did not
demonstrate the necessity of the wiretap and that it materially misrepresented some facts and
omitted others, necessitating a Franks hearing. He also claims that the government improperly
used one application for two wiretap orders, did not seal the wiretap recordings as “immediately”
No. 17-5475 United States v. Cooper Page 2
as the statute requires or explain its failure to do so, and did not prove that certain undercover
informants consented voluntarily to the recordings of their communications on the wiretaps. We
affirm.
I.
On March 31, 2014, the government obtained a 30-day electronic surveillance order
authorizing the wiretapping of cellphones identified as “Target Telephone 1” (TT1) used by Eric
Williams, and TT2 used by defendant-appellant Jamal Cooper. The government submitted a
single application and the court issued a single wiretap order to cover both phones.
The government intercepted Cooper’s calls using TT2 for the next two weeks, including a
call on Saturday evening, April 12. Cooper made no more calls on TT2 and the government
confirmed this through a confidential informant on Monday, April 14, when it ended its TT2
surveillance. On Wednesday, April 16, the government provided the disc containing the TT2
wiretap recordings to the district court for the court to seal. The government did not intercept
any conversations from TT1 because Williams had stopped using it prior to March 31, 2014.
When the government charged Cooper with drug trafficking, he moved to suppress the
evidence gathered directly or derivatively from the TT2 wiretap (and all subsequent wiretap
recordings as fruits of the TT2 wiretap). Cooper accused the government of violating both the
Fourth Amendment and 18 U.S.C. § 2518(1)(c), claiming that the TT2 application did not
establish the necessity for the wiretap. Cooper also accused the government of violating
§ 2518(8)(a) because, Cooper argued, it did not seal the TT2 recording “immediately” as
required by the statute. The district court denied the motion without a hearing, relying on the
affidavit accompanying the wiretap application and record evidence. United States v. Cooper,
No. 3:14-cr-00090, 2015 WL 236271 (M.D. Tenn. Jan. 16, 2015).
Later, Cooper moved again to suppress the evidence from the TT2 wiretap, requesting a
hearing under Franks v. Delaware, 438 U.S. 154 (1978), based on his claim that the TT2
application’s supporting affidavit was flawed by material misrepresentations and omissions.
Cooper also claimed that the government violated § 2518(1)(c) “by offering generalized
statements concerning two or more potential targets in its application for permission to use
No. 17-5475 United States v. Cooper Page 3
wiretaps” and “surreptitiously recorded conversations allegedly between Jamal Cooper and
various confidential informants . . . without either parties’ [sic] consent.” The district court
denied the motion.
Eventually, Cooper entered a guilty plea pursuant to a negotiated plea agreement in
which he reserved the right to appeal the denials of his suppression motions. The district court
accepted the plea agreement and sentenced Cooper to 396 months in prison. Cooper appeals.
II.
When reviewing a district court’s decision on a motion to suppress, we review findings of
fact for clear error and conclusions of law de novo. United States v. Young, 847 F.3d 328, 342
(6th Cir. 2017). A finding of fact is clearly erroneous when we are left with the definite and firm
conviction that a mistake has been committed. Id. Whether a search was reasonable under the
Fourth Amendment is a question of law. Id. Here we review the evidence in the light most
favorable to the government because the district court denied the motions to suppress. Id.A.
Cooper argues that the government cannot use one application for two wiretap orders
and, therefore, the TT1 and TT2 wiretaps were improper and the evidence must be suppressed.
To support this claim, Cooper relies exclusively on the statute’s necessity prong, which states:
Each application for an order authorizing or approving the interception of a wire,
oral, or electronic communication under this chapter shall be made in writing
upon oath or affirmation to a judge of competent jurisdiction and shall state the
applicant’s authority to make such application. Each application shall include . . .
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[.]
18 U.S.C. § 2518(1)(c). Without further support or explanation, Cooper argues that this requires
that “each request for a wiretap must be supported by a separate application.” It is noteworthy,
and determinative, that this statutory provision does not say anything like that.
The government responds that Cooper forfeited his right to appeal this issue because he
did not expressly reserve it in his agreement. Regardless, as the government also points out, the
No. 17-5475 United States v. Cooper Page 4
statute does not require separate affidavits or applications as Cooper contends. In fact, we have
routinely endorsed the use of a single application to wiretap multiple phones. See, e.g., United
States v. Wright, 635 F. App’x 162, 164 (6th Cir. 2015); United States v. Sherrills, 432 F. App’x
476, 479 (6th Cir. 2011). Cooper’s legal contention is unfounded and, ultimately, wrong.
B.
Cooper argues that the affidavit for the TT2 application does not prove the necessity of
the wiretap and, therefore, the wiretap was improper and the evidence must be suppressed.
Essentially, Cooper claims that the affidavit did not establish that traditional investigative
methods had been tried or sufficiently explain why they would be unlikely to succeed.1
The 52-page affidavit, prepared by a competent and knowledgeable officer, stated that the
government had been investigating Cooper and his drug-trafficking organization for some six
months, during which several traditional investigative methods had been attempted and others
considered. The affidavit explained that the government had attempted physical surveillance,
pen registers, confidential informants, consensual recordings, trash searches, pole cameras, and
tracking devices. But the evidence obtained was insufficient to bring the investigation to
prosecution. The affidavit also explained why grand jury subpoenas, undercover officers,
witness interviews, or search warrants were either unlikely to succeed or were simply too
dangerous to attempt.
The district court found that the affidavit contained facts sufficient to demonstrate the
necessity of the wiretap, and that finding is not clearly erroneous. Moreover, one could argue
that if this affidavit were found insufficient, it is unlikely that any affidavit would be sufficient to
prove necessity for a wiretap.
1Cooper also claims that the government’s motive for using one application for both wiretaps was to use
the evidence for the wiretap of TT1 (Williams) to improperly prove necessity for the tap of TT2 (Cooper), thus also
suggesting without any basis that a reviewing judge or magistrate judge would have been unable to recognize that
these were two different phones.
No. 17-5475 United States v. Cooper Page 5
C.
Cooper argues that the affidavit contains material misrepresentations and omits material
information, and therefore he was entitled to a Franks hearing to demonstrate that the wiretap
was improper and that the evidence must be suppressed. A defendant is entitled to a Franks
hearing if he (1) can make a substantial preliminary showing that the affiant knowingly and
intentionally, or with reckless disregard for the truth, made a false statement or material omission
in the affidavit; and (2) proves that the false statement or material omission was necessary to the
finding of probable cause. United States v. Rose, 714 F.3d 362, 370 (6th Cir. 2013) (citing
Franks v. Delaware, 438 U.S. 154, 171-72 (1978)).
Cooper alleges five “false or misleading” statements: (1) that Williams was using TT1 on
March 31, though he was not; (2) that Williams was using TT1 and TT2 for drug trafficking,
though he was not; (3) that police used physical surveillance “throughout” the investigation,
when in fact they followed Cooper only one time; (4) that police used pen registers “in March
2014,” when they actually monitored them for only five days between March 13 and 18; and (5)
that traditional investigative techniques were insufficient, when police had not actually attempted
things such as video surveillance, undercover agents, grand jury subpoenas, trash searches, or
tracking devices, but instead only believed that they would be unsuccessful.
In his brief, Cooper actually describes the second of these five allegedly false or
misleading assertions as: “(2) that he was using them in connection with the target offenses.”
We assume, from context, that Cooper is challenging an assertion that Williams was using TT1
and TT2 for drug trafficking. But Cooper does not elaborate any further on this claim anywhere
in his brief, nor did he raise it to the district court. Therefore, Cooper has forfeited this particular
claim and we will not consider it further.
As for the other four contested statements, the district court explained that the dates were
accurate based on the officer’s knowledge at the time of the affidavit; that the “general
reference[s]” to “throughout this investigation” and to “in March 2014” were reasonable; and
that Cooper’s belief that sufficient traditional investigation techniques had not been employed
does not render the officer’s statements false or misleading. The court also addressed Cooper’s
No. 17-5475 United States v. Cooper Page 6
attack on “boilerplate” language, explaining that boilerplate does not mean false or misleading.
Finally, the court pointed out that the “correct” information that Cooper uses to craft these
charges (that surveillance was used only once, that pen registers were sought for a period of only
five days, and that the officer merely believed the investigatory techniques would fail) was, in
fact, included in the affidavit, so rather than being misled, the reviewing judge was aware of
these alleged inconsistencies and exercised his own judgment.
Because these statements were not misleading, a Franks hearing was not necessary.
D.
Cooper argues that the government did not seal the TT2 recordings “immediately,” as
required by the statute, or explain why it did not, so the court must suppress the evidence from
TT2. This statutory provision says, in pertinent part: “Immediately upon the expiration of the
period of the order, or extensions thereof, such recordings shall be made available to the judge
issuing such order and sealed under his directions.” 18 U.S.C. § 2518(8)(a). The order, as
issued, was set to expire on April 29 (i.e., 30 days from the March 31 start date), but because
Cooper stopped using TT2 earlier, the order effectively expired earlier. Cooper last used TT2 on
April 12, but it was not until April 14 that the government was able to confirm that Cooper had
stopped using TT2. The government submitted the TT2 recordings to the court for sealing on
April 16. Cooper says that because the last interception occurred on April 12, April 16 was too
late.
Under § 2518(8)(a), “immediately” means “within one or two days.” United States v.
Wilkinson, 53 F.3d 757, 759 (6th Cir. 1995) (quotation marks and citation omitted). If a
recording is not sealed “immediately,” the government must provide a “satisfactory explanation”
for why it was not, in order for the recording to be admissible. Id. (quoting § 2518(8)(a)).
Cooper, of course, did not advise the government that he had stopped using TT2. But
within two days of independently confirming that fact, and 13 days prior to the expiration date
on the face of the warrant, the government submitted the TT2 recording to the district court for
sealing. This satisfies the “immediately” requirement of § 2518(8)(a).
No. 17-5475 United States v. Cooper Page 7
E.
Cooper argues that the government did not establish that the undercover informants
consented voluntarily to the recordings of their communications with Cooper and, therefore, it
could not rely on 18 U.S.C. § 2511(2)(c) (“It shall not be unlawful under this chapter for a
person acting under color of law to intercept a wire, oral, or electronic communication, where . . .
one of the parties to the communication has given prior consent to such interception.”).
The government explained to the district court that the contents of the recordings
demonstrate that the informants were aware that their conversations were being recorded and
therefore gave valid consent. This is a legitimate means of proving consent in a situation such as
this. See United States v. Moncivais, 401 F.3d 751, 754-55 (6th Cir. 2005). Because the court
found consent, we review that determination for clear error. Id. And we find none.
Cooper also contends that the government may not rely on consent from an informant
who is on probation or parole because internal government policy forbids the use of probationers
or parolees as confidential informants. The district court found that Cooper had failed to prove
any aspect of this contention; most notably, Cooper had failed to show that these informants
were on probation or parole. Regardless, even if Cooper could prove this alleged violation of
internal government policy, that would not negate the informants’ consent. See United States v.
Bussell, 266 F. App’x 393 (6th Cir. 2008); United States v. Porter, 29 F. App’x 232 (6th Cir.
2002).
Finally, Cooper contends that the government was subject to a higher burden of proof to
demonstrate voluntary consent and that it failed to meet that burden. But Cooper has provided
no authority to support this specific legal proposition, nor does he offer a demonstration of clear
error in the decision.
III.
For all of the foregoing reasons, we AFFIRM the judgment of the district court.