United States v. Juanzell Jenkins , 659 F. App'x 327 ( 2016 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0517n.06
Nos. 15-5859, 15-6300 FILED
Sep 02, 2016
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
JOE JENKINS (15-5859); JUANZELL JENKINS )
DISTRICT OF TENNESSEE
(15-6300), )
)
Defendants-Appellees. )
BEFORE: GILMAN, WHITE, and STRANCH, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Brothers Joe and Juanzell Jenkins (Defendants)
pleaded guilty of conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846,
pursuant to conditional plea agreements that preserved the right to appeal the district court’s
denial of their motions to suppress wiretap evidence. They received statutory mandatory
minimum sentences of 60 and 120 months of imprisonment, respectively. On appeal, they argue
that the wiretaps (1) were not supported by probable cause, and (2) did not comply with Title III
of the Omnibus Crime Control and Safe Streets Act, Pub. L. No. 90-351, 82 Stat. 212 (June 19,
1968) (codified as amended at 18 U.S.C. § 2510 et seq.). We AFFIRM the denial of the
motions to suppress.
I. Background
These appeals arise out of a federal taskforce investigation into narcotics trafficking in
Chattanooga, Tennessee, that began in 2009. During the investigation, the government sought
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and obtained Title III authorization to place wiretaps on several phones connected to Juanzell,1 a
suspected distributor of crack and cocaine. Three of these wiretaps—placed on “target
telephones” designated TT4, TT5, and TT8—are at issue in these appeals.
The government first applied for a wiretap on TT4, Juanzell’s cell phone, and sought
authorization to intercept Juanzell’s communications with three others in May 2012. The
application was based on the affidavit of James Hixson, a member of the Chattanooga Police
Department assigned to the task force, who provided an account of evidence that Juanzell and the
named interceptees were conspiring to distribute cocaine. This evidence included information
from confidential informants, physical surveillance, controlled drug purchases, and analyses of
call records from TT4 and other phones. Juanzell’s brother Joe was not named as an interceptee,
but was discussed and referred to as a subject in Hixson’s affidavit, given the frequent
interactions between the brothers. As required by Title III, Hixson also attested to the need for
the wiretap as compared to other investigative methods, asserting that the wiretap was necessary
to ascertain the scope of Juanzell’s distribution organization in Chattanooga. Lastly, Hixson
explained how the government planned to minimize the interception of non-pertinent calls,
another Title III requirement. The district court authorized a thirty-day wiretap.
In February 2013, the government applied for a wiretap on TT5. In the supporting
affidavit, Hixson explained that Juanzell had stopped using TT4 in favor of TT5 shortly after the
TT4 wiretap ended. Although the TT4 wiretap had yielded evidence of a conspiracy, a regional
cocaine shortage had prevented investigators from learning the depth of the coconspirators’
involvement. Thus, the application sought authorization to intercept Juanzell’s communications
with Joe and four others on TT5. According to Hixson’s affidavit in support of the TT5 wiretap,
1
Because Defendants share a surname, we use their first names for clarity.
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Joe was named as an interceptee in part because the TT4 wiretap had intercepted 67 calls
between the brothers that revealed Joe’s active role in Juanzell’s operation. Hixson again
attested to evidence supporting probable cause for the wiretap and asserted that another wiretap
was the only available means of identifying the scope of Juanzell’s operation, including the
identities of their suspected sources in Atlanta, Georgia. The affidavit also included an
explanation of the investigators’ planned efforts at minimization. The district court signed an
order authorizing a thirty-day wiretap.
Lastly, the government applied for a wiretap on TT8 in April 2013, shortly after the TT5
wiretap authorization had expired. Investigators believed TT8 was used by Robert North, an
associate of Juanzell, and sought authorization to intercept North’s communications with
Juanzell, and two others, not including Joe. Hixson attested to evidence—from the previous
wiretaps, call data, and confidential sources—that North supplied Juanzell with cocaine. Further,
Hixson asserted that wiretap interception was necessary because there was still no other
technique with a reasonable likelihood of success to identify the entire Chattanooga operation.
The district court signed a wiretap order.
In October 2013, a grand jury issued a first superseding indictment charging both
Defendants and over a dozen others with conspiracy to manufacture and distribute crack and
powder cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Juanzell was also
charged with seven counts of distributing crack or cocaine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). Joe moved to suppress wiretap evidence from TT4, TT5, and TT8. Juanzell filed
a separate motion to suppress and later incorporated Joe’s arguments by reference. After a two-
day hearing on Joe’s motion, at which Hixson testified, the magistrate judge issued a report
recommending denial. The district court overruled Joe’s objections, adopted the report and
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recommendation, and denied the motion. The district court later denied Juanzell’s motion as
well, relying on the reasoning supporting its denial of Joe’s motion.
Defendants then entered into conditional plea agreements that preserved their right to
appeal the denials of their motions to suppress. Joe pleaded guilty of conspiring to distribute at
least 500 grams of cocaine, and Juanzell pleaded guilty of conspiring to distribute at least 5
kilograms of cocaine. The district court sentenced Joe and Juanzell to the statutory mandatory
minimums of 60 and 120 months of imprisonment, respectively. We consolidated Defendants’
timely appeals.
II. Discussion
Defendants argue that the wiretap applications were not supported by probable cause, that
the wiretaps were not necessary to the investigation, and that non-pertinent communications
were not properly minimized. We review the district court’s findings of fact for clear error and
questions of law de novo. United States v. Rice, 478 F.3d 704, 709 (6th Cir. 2007). Defendants
bear the burden of production and persuasion where, as here, they seek to suppress wiretap
evidence, and we view the facts in the light most favorable to the government. United States v.
Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003); United States v. Giacalone, 853 F.2d 470,
482 (6th Cir. 1988); see also United States v. Patel, 579 F. App’x 449, 453 (6th Cir. 2014).
When considering whether authorization of a wiretap was proper, we “will accord great
deference to the determinations of the issuing judge.” United States v. Corrado, 227 F.3d 528,
529 (6th Cir. 2000).
A. Probable cause
“The basic standards for a wiretap are similar to those for a search warrant,” and “the
question that must be decided in issuing a warrant is whether there is probable cause to believe
that evidence of a crime will be uncovered.” United States v. Alfano, 838 F.2d 158, 161–62 (6th
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Cir. 1988); see also Giacalone, 853 F.2d at 478. “Certainty is not required, but rather a fair
probability and something more than mere suspicion.” United States v. Poulsen, 655 F.3d 492,
504 (6th Cir. 2011). That a “reviewing court may feel that a different conclusion was
appropriate does not require, nor even authorize, the suppression of evidence gained through
such a warrant.” Alfano, 838 F.2d at 162. The issuing judge’s probable-cause determination
“will not be reversed if the record contains a ‘substantial basis for his probable cause findings.’”
Id. (quoting United States v. Lambert, 771 F.2d 83, 93 (6th Cir. 1985)).
Here, Hixson’s affidavits established probable cause to believe that all three wiretaps
would lead to evidence that Juanzell and his associates had entered a conspiracy to distribute
crack and cocaine. In the 70-page TT4 affidavit, Hixson explained that Juanzell initially became
a target of the investigation in August 2009, after confidential informant CS-1—who had been
assisting with an investigation of a different target—witnessed Juanzell engage in a drug
transaction, corroborated by audio and video evidence. Investigators then interviewed a second
informant, CS-2, about Juanzell, and learned that Juanzell had been selling cocaine to CS-2 on a
weekly basis. A third informant, CS-3, assisted investigators in conducting four controlled buys
from Juanzell between June and August 2011 and recorded Juanzell arranging sales on a phone
designated TT1.
Juanzell later reduced his usage of TT1, and investigators analyzed call records from TT1
with the goal of identifying Juanzell’s other phone numbers. Investigators identified TT1’s two
most frequent contacts, then checked the call records of those two phones, which shared only
two mutual contacts—TT1 and a phone that investigators designated TT2. Investigators
suspected that Juanzell was also using TT2, so they obtained TT2’s call data and learned that
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TT2 was being used to contact numbers with Atlanta area codes. CS-2 had earlier told
investigators that Juanzell’s source was in Atlanta.
Investigators also subpoenaed Juanzell’s utility company to obtain his contact
information and discovered a new phone, TT3. A fourth informant, CS-4, then conducted a
controlled purchase of crack cocaine from Juanzell, and investigators confirmed that CS-4 had
spoken with Juanzell on TT3. In March 2012, investigators again contacted CS-3, who said that
Juanzell had been boasting about his cocaine business, so they enlisted CS-3 to conduct a
controlled buy. CS-3 approached Juanzell, who provided a new number, TT4. CS-3 recorded
Juanzell discussing a potential deal on TT4 and then conducted the controlled buy.
Investigators obtained a court order for TT4 call data from March through April 2012.
Hixson attested that the call data revealed a pattern of call activity consistent with drug
trafficking, including numerous contacts with prepaid phones that yielded no personal identifiers.
Investigators also learned that Juanzell was in frequent contact with three known drug
traffickers—Gerald Toney, Jimmy Bush, and David Weaver—and concluded that they were
close associates of Juanzell. According to the affidavit, all three had criminal records and had
been involved in the distribution of crack and cocaine: police sources named Toney as a
“significant distributor of cocaine” in Chattanooga; proffers or interviews with federal
defendants and dealers identified Bush as another significant distributor; and cooperating
defendants and confidential sources similarly named Weaver as a distributor. R. 525, PID 1815.
The wiretap application named all three—as well as Juanzell—as interceptees.
The TT5 and TT8 affidavits built on these facts with information intercepted from TT4.
In the TT5 affidavit, Hixson explained that Juanzell had stopped using TT4, but that
investigators identified TT5 as his new number through subpoena records and call data. Hixson
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then detailed a number of pertinent calls intercepted on the TT4 wiretap that, along with analysis
of call data, established a distribution operation, including contacts with Joe and the other TT5
named interceptees—Toney, Robert North, Clifford Simpson, and Sh’kayla Watkins. Notably,
Hixson asserted that the TT4 intercepts established that Simpson was a “source of supply for
cocaine and marijuana” for Juanzell, and the affidavit included the transcript of a call between
Juanzell and Simpson discussing the availability of cocaine. Id. at PID 1916. Hixson also
learned from Atlanta law enforcement that Simpson had been investigated for large-scale
distribution. The TT8 affidavit, which targeted North, followed a similar pattern. North had
been incarcerated during the TT4 wiretap, but the TT5 intercepts and TT8 call data indicated that
North was “a source of supply” for Juanzell. Id. at PID 1985. The other named interceptees—
Kenyatta Jasper and Torrey Gilmore—were similarly tied to the alleged cocaine distribution
conspiracy through call data and the TT5 intercepts.
Thus, the facts alleged in each affidavit establish probable cause to believe that a wiretap
would uncover evidence of a conspiracy to distribute crack and cocaine. Defendants urge a
different conclusion, arguing that the court should disregard much of the evidence in the
affidavits supporting probable cause for a conspiracy. According to Defendants, the controlled
buys attested to in the TT4 affidavit support probable cause for a distribution offense by Juanzell,
but not a conspiracy, and the only evidence of a conspiracy were the call data from TT4.
Defendants then rely on United States v. Algie, 721 F.2d 1039, 1042 (6th Cir. 1983) (per curiam),
where the court concluded that call data were inadequate evidence of probable cause. Thus,
Defendants argue, without the evidence of Juanzell’s individual distribution activities and the
call data, the TT4 affidavit did not establish probable cause.
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We consider the totality of the circumstances when evaluating probable cause. Illinois v.
Gates, 462 U.S. 213, 230 (1983). Here, the controlled buys clearly support the conclusion that
Juanzell was engaged in drug trafficking, and the TT4 affidavit provides further support for the
theory that his distribution activities were part of a larger operation. According to Hixson,
Juanzell made a significant number of calls to prepaid phones, changed his own phone number
several times, frequently contacted other known traffickers, and reportedly sourced cocaine from
Atlanta. Cf. Alfano, 838 F.2d at 162. True, Hixson testified at the suppression hearing that
Weaver, Toney, and Bush were named in the TT4 affidavit based only on investigators
“identifying their numbers and having knowledge of their criminal activities,” and that
investigators “had no evidence linking them to [Juanzell] Jenkins, outside of the phone calls.” R.
652, PID 3816. However, Algie does not require courts to disregard call data when evaluating
probable cause. In Algie, we concluded that contacts between a gambling establishment and a
business with no known connection to gambling, standing alone, did not establish probable
cause. 721 F.2d at 1042. Here, in contrast, the call data showed that Juanzell was in contact
with other drug traffickers, supporting the conclusion that Juanzell’s cocaine distribution was not
a solitary endeavor.
Defendants also suggest that factual misrepresentations in the affidavits undermine the
probable-cause determination. Most significantly, Defendants point to Hixson’s assertion in the
TT4 affidavit that Juanzell engaged in a transaction involving North, who was later the target of
the TT8 wiretap, in August 2009. Hixson testified at the suppression hearing that he identified
North through a surveillance photograph, but by the time of the hearing he knew “without a
doubt” that it was Jonathan Winters, not North, who had been involved in that transaction.
R. 652, PID 3740–41. When preparing the affidavit, Hixson had compared the surveillance
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photograph to photographs of Juanzell’s known associates and incorrectly concluded that the
man most resembled North. In retrospect, Hixson testified, he “should have left it as
‘unidentified black male’ and not even worried with it, because it had no—it had no bearing on
the probable cause.” Id at PID 3742.
The magistrate judge considered this issue in his report, concluding that Hixson had not
exhibited “reckless disregard” as to the veracity of the affidavit, see United States v. Stewart,
306 F.3d 295, 304 (6th Cir. 2002), and that the misidentification did not deprive the investigation
of probable cause to pursue a wiretap. R. 650, PID 3663. As the magistrate judge explained,
North’s name can be excised from the affidavit with no effect on the probable-cause
determination, and even without the statement about this August 2009 transaction, “there
remains sufficient content in the affidavit to support a finding of probable cause.” Stewart,
306 F.3d at 305 (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)).
Lastly, Juanzell contends that the affidavits do not establish “present probable cause” to
support a wiretap. This argument originates in Berger v. New York, 388 U.S. 41 (1967), where
the Supreme Court held that a broad eavesdropping law violated the Fourth Amendment. The
Supreme Court specifically disapproved the practice of extending an eavesdropping order solely
on the ground that an extension would be “in the public interest,” concluding that “a showing of
present probable cause for the continuance of the eavesdrop” was necessary. Id. at 59.
Juanzell’s reliance on this case is misplaced. Here, the government did not seek continuance of
any of the three wiretaps; rather, after the TT4 wiretap concluded, the government filed a
separate affidavit with new evidence from the TT4 intercept to support the TT5 application, and
the same is true of the TT8 application. Each affidavit independently established probable cause
to believe that a wiretap would uncover evidence of a conspiracy.
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B. Necessity
Under Title III, the wiretap application must 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,” and the court may authorize
interception only after a determination that this standard has been met. 18 U.S.C. § 2518(1)(c),
(3)(c). This requirement “protects against the impermissible use of a wiretap as the ‘initial step
in [a] criminal investigation.” Rice, 478 F.3d at 710 (alteration in original) (quoting United
States v. Giordano, 416 U.S. 505, 515 (1974)). However, investigators need only “give serious
consideration to the non-wiretap techniques prior to applying for wiretap authority,” and explain
to the court “the reasons for the investigators’ belief that such non-wiretap techniques have been
or will likely be inadequate.” Giacalone, 853 F.2d at 480 (quoting Alfano, 838 F.2d at 163–64)).
“[T]he purpose of the necessity requirement ‘is not to foreclose electronic surveillance until
every other imaginable method of investigation has been unsuccessfully attempted, but simply to
inform the issuing judge of the difficulties involved in the use of conventional techniques.’”
Corrado, 227 F.3d at 539 (quoting United States v. Landmesser, 553 F.2d 17, 20 (6th Cir.
1977)). Thus, “a district court’s finding that the requirements of § 2518(1)(c) have been met are
afforded ‘considerable discretion.’” Stewart, 306 F.3d at 304 (quoting Landmesser, 553 F.2d at
20)).
Here, we conclude that Hixson’s affidavits sufficiently described the available methods
of investigation and demonstrated that each method, having been duly considered, was either
unsuccessful or too risky. In the TT4 affidavit, Hixson explained that Atlanta had become a
“primary cocaine source city” for southeast Tennessee and asserted that a wiretap was the “only
available mechanism” that was reasonably likely to identify Juanzell’s organization in
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Chattanooga and its suspected source in Atlanta. R. 525, PID 1855–56. According to Hixson,
traditional methods had been unsuccessful in obtaining this information. For example, although
physical surveillance on “numerous occasions” had yielded important information about vehicles
and residences, these efforts were limited by Juanzell’s “skill[] in counter surveillance
techniques,” including evasive driving. Id. at PID 1858-59. Physical observation in
neighborhoods populated by Juanzell’s friends and associates jeopardized the investigation.
Further, investigators could not directly observe transactions taking place in homes and
apartments, which could be corroborated only by informants or electronic surveillance.
Numerous confidential informants had been useful in gaining intelligence and executing
controlled purchases, but had limited success in obtaining information about the scope of
Juanzell’s organization, having “never held a position of trust.” Id. at PID 1865. Hixson noted
that the targets of the investigation were alert to detection, as seen in Juanzell’s routine use of
counter surveillance. Hixson also favorably cited the investigation’s success with phone records,
but asserted that these records were of limited value without knowing the identities of the parties
or the substance of the call. Other methods were considered but not attempted. For example,
grand jury subpoenas, interviews, search warrants, and trash pulls were deemed unlikely to yield
useful information, likely to compromise the investigation, or both. Hixson suggested that
undercover infiltration might have been a possibility, but there were no cooperating witnesses in
a position to introduce an undercover agent to Juanzell, who was “cautious and untrusting” in
any event. Id. at PID 1864. Lastly, Hixson could not assess the effectiveness of a pole camera,
but observed that use of a camera would suffer from some of the same difficulties as physical
surveillance, and could alert Juanzell to the investigation.
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The TT5 and TT8 affidavits mirror these observations and concerns. In the TT5
affidavit, Hixson explained that the TT4 wiretap had not been sufficient to identify the scope of
Juanzell’s organization because of the regional cocaine drought. Although the TT4 intercepts
had revealed Simpson as an Atlanta source, Hixson reasoned that a wiretap was still necessary to
confirm Juanzell’s distribution network in Chattanooga, as well as any other sources. Hixson’s
description of the alternative methods was similar to the TT4 affidavit, but also described new
challenges. For example, the TT4 intercept revealed that Toney, one of Juanzell’s associates,
would assist in conducting counter surveillance while Juanzell obtained cocaine from Simpson,
which frustrated physical surveillance of the conspiracy. Further, Juanzell had employed
additional means of evading surveillance, including using an alias to set up utilities at his
residence. Similarly, Hixson attested in the TT8 affidavit that investigators had limited success
in conducting physical surveillance on North and Jasper, who had been identified through earlier
intercepts, despite extensive efforts—in part because of evasive actions. And although
investigators had developed informants with access to Juanzell, the task force had not been
unable to identify cooperating individuals who could develop relationships with North or
introduce undercover officers.
The information in these affidavits is sufficient to satisfy § 2518(1)(c). Cf. Poulsen,
655 F.3d at 504. Defendants argue that the wiretaps were not necessary because investigators
already had probable cause to arrest Juanzell for distribution. This argument is misplaced.
Investigators sought the TT4 wiretap to obtain evidence about Juanzell’s organization and
sources, not his own distribution of cocaine. As Hixson stated in the affidavit: “While
controlled purchases of cocaine and cocaine base from [Juanzell] JENKINS himself subject him
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to prosecution, in affiant’s opinion, only the interception of communications over TT4 will
further the investigation” into the conspiracy. R. 525, PID 1857.
Defendants also suggest that investigators could have arrested Juanzell based on the
intercepts from the TT4 wiretap, obviating the need for the TT5 and TT8 wiretaps, but this
argument fails for the same reason. Although information collected from the TT4 intercepts
helped establish probable cause to arrest Juanzell and others for conspiracy, Hixson explained in
the TT5 affidavit that the TT4 intercepts had not yet established the scope of the conspiracy
because of the cocaine shortage, and further wiretaps were the only method with a reasonable
likelihood of success in accomplishing this goal.
Defendants also assert that investigators were required to pursue traditional methods of
investigation into the activities of all named interceptees in each wiretap application. Defendants
note, for example, that the TT4 affidavit addressed necessity only with respect to Juanzell, who
used TT4, and not with respect to Toney, Bush, and Weaver. However, the TT4 affidavit
explained that the government sought a wiretap on Juanzell’s phone specifically to determine
whether Juanzell—not Toney, Bush, and Weaver—was engaged in a conspiracy and to identify
unknown members of any such conspiracy, including Juanzell’s Atlanta source; to that end, the
affidavit documented the investigation into Juanzell’s activities and explained the necessity of a
wiretap to support that investigation. Further, Defendants point to no authority holding that the
government is required to exhaust traditional methods of investigation into all possible members
of a conspiracy before applying for a wiretap.
Defendants next contend that traditional investigative methods like controlled buys and
interviews had already been successful, and suggest that investigators did not make sufficient
efforts to continue developing evidence through these tactics before applying for the TT4
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wiretap. This argument again conflates Juanzell’s own distribution activities with those of the
suspected conspiracy. Although alternative investigative methods were successful in developing
evidence of Juanzell’s own distribution, as Hixson attested, the investigation into the conspiracy
had not yielded similarly positive results. In any event, “the mere fact that some investigative
techniques were successful in uncovering evidence of wrongdoing does not mandate that a court
negate the need for wiretap surveillance.” Stewart, 306 F.3d at 305. Where, as here, “the
telephone is routinely relied on to conduct the criminal enterprise under investigation,” a wiretap
“is particularly appropriate.” Landmesser, 553 F.2d at 20 (quoting United States v. Steinberg,
525 F.2d 1126, 1130 (2d Cir. 1975)).
Defendants also contend that the affidavits’ assertions of necessity are conclusory and
boilerplate. They note that certain sections of the affidavits—for example, the section addressing
grand-jury subpoenas—are very similar, and offer little specific information relevant to each
particular application. But Hixson’s assessment of the potential use of grand-jury subpoenas in
the accompanying affidavit notes two significant hindrances: (1) any coconspirators would
invoke the Fifth Amendment, and (2) it “would only serve to alert other members of this
organization to the existence of the investigation.” R. 525, PID 1944. The discussion of other
methods challenged by Defendants similarly addressed why the relevant alternative was
unsuccessful or dangerous. The affidavits sufficiently explained why the relevant application
met the § 2518(1)(c) requirement, as investigators seriously considered non-wiretap alternative
and determined them to be inadequate in the given circumstances. See Rice, 478 F.3d at 710(reasoning that Title III does not require the government to “prove that every other conceivable
method has been tried and failed or that all avenues of investigation have been exhausted”)
(quoting Alfano, 838 F.3d at 163).
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Along these lines, Defendants also contend that the district court’s orders failed to
adequately explain the basis for its conclusion that the wiretaps were necessary; Defendants
suggest that the district court did not read the affidavits “for comprehension” before signing the
order. But absent evidence to support this claim, there is no basis for assuming that the district
court did not review the affidavits thoroughly, and Defendants point to no authority requiring the
district court to explain its conclusions about necessity in greater depth in an authorization order.
C. Minimization
Lastly, Title III requires the government “to minimize the interception of
communications not otherwise subject to interception.” 18 U.S.C. § 2518(5). “The statute does
not forbid the interception of all nonrelevant conversations, but rather instructs the agents to
conduct the surveillance in such a manner as to ‘minimize’ the interception of such
conversations.” Scott v. United States, 436 U.S. 128, 140 (1978). We have explained that “the
proper approach for evaluating compliance with the minimization requirement is to objectively
assess the reasonableness of the monitoring agents’ actions in light of the facts and
circumstances confronting them at the time.” United States v. Feldman, 606 F.2d 673, 677–78
(6th Cir. 1979). “It is not enough for the defendants to identify particular calls which they
contend should not have been intercepted; they must establish a pattern of interception of
innocent conversations which developed over the period of the wiretap.” United States v.
Lawson, 780 F.2d 535, 540 (6th Cir. 1985) (quoting United States v. Dorfman, 542 F. Supp. 345,
391 (N.D. Ill.), aff’d in part and rev’d in part on other grounds, 690 F.2d 1217, 1230 (7th Cir.
1982)). Defendants must demonstrate “that the monitoring agents exhibited a high disregard for
[their] privacy rights or that they did not do all they reasonably could to avoid unnecessary
intrusions.” Feldman, 606 F.2d at 679.
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Here, the government’s minimization efforts were documented in progress reports to the
district court at the midpoint and conclusion of the thirty-day authorization. At the midpoint of
the TT4 wiretap, the government reported intercepting 1399 completed calls, of which 265 were
deemed pertinent and 15 were minimized. In the second half, investigators documented 1960
completed calls, of which 467 were deemed pertinent and 38 were minimized. The TT5
midpoint report documented interception of 915 completed calls, of which 371 were pertinent
and 20 were minimized. The final report showed 1699 completed calls, of which 646 were
pertinent and 38 were minimized. At the midpoint of the TT8 wiretap, the government reported
interception of 758 completed calls on TT8, of which 184 were deemed relevant and 5 were
minimized. The final report described a total of 287 pertinent calls and 12 minimized calls.
At the suppression hearing, Hixson explained the minimization procedures employed in
the investigation. Investigators would listen to phone conversations for a period of time set by
the case agent—he gave one minute as an example—and determine whether the conversation
was pertinent to the investigation. A conversation was “non-pertinent” if it was “not drug
related” or “not in any way related to the drug-trafficking activities of the target.” R. 652, PID
3723. If the conversation was non-pertinent, investigators would stop recording for another set
period of time—for example, 30 seconds—and then conduct a spot check to determine whether
the conversation remained non-pertinent. Pertinent calls averaged 2 minutes and 14 seconds,
whereas non-pertinent calls averaged 2 minutes and 6 seconds. Because the time runs from the
moment the number is dialed, including while the phone is ringing, Hixson explained that the
average call would be “about a minute and a half of conversation.” Id. at PID 3726. He testified
at the suppression hearing that investigators strictly complied with minimization requirements.
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Defendants challenge the investigators’ compliance with § 2518(5), pointing to the
consistently small percentage of non-pertinent calls that were minimized. However, the Supreme
Court has explained that “blind reliance on the percentage of nonpertinent calls intercepted is not
a sure guide to the correct answer,” noting that there are cases “where the percentage of
nonpertinent calls is relatively high and yet their interception was still reasonable.” Scott, 436
U.S. at 140. “The reasons for this may be many,” the Court explained, including that non-
pertinent calls “may have been very short,” “may have been one-time only calls,” or “may have
been ambiguous in nature or apparently involved guarded or coded language.” Id. Thus, we
consider “the nature and scope of the criminal investigation; the Government’s reasonable
expectations of the character of conversations; and, the extent of judicial supervision over the
surveillance.” Feldman, 606 F.2d at 678.
Here, the task force investigated a potentially large-scale, interstate conspiracy to
distribute cocaine. The Supreme Court has explained that, “when the investigation is focusing
on what is thought to be a widespread conspiracy[,] more extensive surveillance may be justified
in an attempt to determine the precise scope of the enterprise.” Scott, 436 U.S. at 140. Under
these circumstances, “even a seasoned listener would have been hard pressed to determine with
any precision the relevancy of many of the calls before they were completed.” Id. at 142. Where
calls are “ambiguous in nature,” determining their relevance may be “virtually impossible until
the completion.” Id. Here, the object of the wiretap was to discover the identities of potentially
unknown parties to a conspiracy, obscuring the relevance of short calls with unknown parties.
Hixson also testified that Juanzell had used coded language during the calls; this would make it
more difficult to determine whether a call was pertinent.
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Additionally, Hixson testified that investigators calibrated their expectations for
intercepted calls according to the identity of the other party to the call and previous contacts with
the target. For example, Hixson testified that calls with parties who were clearly not
coconspirators would “[a]bsolutely” be minimized quickly, but that the wiretaps frequently
intercepted contacts between suspected coconspirators, R. 652, PID 3728, making minimization
of short calls less likely even when a call was ultimately deemed not pertinent. Most of the calls,
particularly on TT4, “were with the same individuals that there had been previous pertinent calls
with” and “may have been monitored a little longer than the recommended time, based on who is
making the phone call to the—to the target of the investigation.” Id. at PID 3724–25. “If the
target of the phone intercept has talked to a coconspirator a hundred times, and 100 of those
phone calls have been pertinent phone calls,” then investigators were more likely to monitor the
call. Id. at PID 3727. Defendants object to investigators’ alleged failure to minimize non-
pertinent calls between the targets and Joe, but Joe was listed as a subject of the TT4 wiretap and
a named interceptee of the TT5 wiretap. Under these circumstances, investigators were not
unreasonable in monitoring calls between Joe and Juanzell, or between Joe and North.
Lastly, the district court supervised the surveillance through progress reports that
included data about the minimization of intercepted communications, transcripts of selected
calls, and a description of the progress of the investigation.
Viewing the facts in the light most favorable to the government, we conclude that
Defendants have failed to carry their burden to demonstrate that the government did not comply
with § 2518(5). See Patel, 579 F. App’x at 459. Notably, Defendants did not refute Hixson’s
testimony about investigators’ compliance with the minimization requirement at the suppression
hearing, and the magistrate judge considered Hixson credible for purposes of the motion.
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Although investigators minimized only a small percentage of calls, other considerations support
the conclusion that the investigators’ actions satisfied the requirements of Title III.
III.
For these reasons, we AFFIRM the district court’s denial of the motions to suppress.
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