United States v. Happy Asker , 676 F. App'x 447 ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0038n.06
FILED
No. 15-1832 Jan 18, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
HAPPY ASKER, ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
Defendant-Appellant. )
)
)
BEFORE: BOGGS, SUHRHEINRICH, and McKEAGUE, Circuit Judges.
BOGGS, Circuit Judge. This appeal arises out of a criminal conviction for IRS fraud,
filing false tax returns, and corruptly endeavoring to obstruct and impede the administration of
the internal revenue laws, in violation of numerous federal statutes. See 18 U.S.C. § 371;
26 U.S.C. §§ 7206, 7212. The defendant, Happy Asker, challenges his conviction based on four
errors allegedly committed by the trial court: 1) denial of his motion to suppress evidence
obtained pursuant to a warranted wiretap; 2) denial of his motion to suppress evidence obtained
pursuant to a warranted search; 3) denial of his request for a continuance to prepare for the
government’s introduction of non-disclosed evidence; and 4) granting the government’s request
for a proposed jury instruction of “deliberate ignorance.” Because the district court committed
no reversible error, we affirm.
No. 15-1832
United States v. Happy Asker
I
A
Happy Asker founded the first Happy’s Pizza location in 1996 in Detroit, Michigan.
After experiencing financial success with his first location, he expanded to a second location in
1997. Additional locations soon followed and, by 2005, Asker had opened fifteen Happy’s Pizza
locations in the Detroit area. To accommodate the increased interest in his pizza business and to
facilitate further expansion, Asker moved his business to a franchise model in 2007, and began
fielding offers from potential franchisees. From 2007 to 2010, the number of Happy’s Pizza
locations tripled, and stores were operating in Michigan, Ohio, and Illinois. Asker owned the
franchisor entity, Happy’s Pizza Franchise, and retained an ownership interest in most of the
franchise locations.
In 2009, the Drug Enforcement Administration (“DEA”) received a credible tip that
implicated several individuals associated with Happy’s Pizza in a complicated scheme involving
narcotics trafficking and money laundering. The anonymous informant, who had been working
with DEA officials for eighteen months, relayed to agents a recent conversation that he’d had
with Ramiz Gallozi, a known drug trafficker. Gallozi suggested that the informant, who had
approached Gallozi to discuss laundering narcotics proceeds, invest his cash in a Happy’s Pizza
location. A subsequent trash pull at Happy’s Pizza Headquarters revealed a list of fifty-four
Happy’s Pizza franchise locations, many of which were owned by suspected narcotics
traffickers.
Based partially on this information, the government applied for an order under 18 U.S.C.
§ 2518, authorizing a wiretap for the cell phone of Arkan Summa, one of the suspected narcotics
dealers mentioned on the list recovered at the trash pull. In the supporting affidavit, Agent
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Benjamin Swincicki stated facts purporting to show probable cause that the wiretap would reveal
communications indicative of narcotics and money-laundering offenses. Among other things,
Swincicki’s affidavit relied on several conversations between Summa and Gallozi that had been
intercepted pursuant to a previous wiretap on Gallozi’s phone. In these conversations, Summa
and Gallozi discussed their attempts to obtain marijuana. In order to mask their illicit activities,
the two spoke in a mixture of English and Chaldean,1 frequently using the term “bisla” to refer to
what Swincicki believed was an “amount of drugs” indicative of narcotics trafficking. Based on
the information contained within Swincicki’s affidavit, the district judge authorized the wiretap
on June 11, 2010.
This wiretap provided government agents with additional information connecting
Happy’s Pizza to suspected narcotics trafficking. On August 19, 2010, the government
incorporated this wiretap evidence in an application for a search warrant for Happy’s Pizza
corporate office. Agent Swincicki also provided the affidavit in support of probable cause for
this warrant. Among other things, Swincicki’s affidavit made specific reference to a June 16,
2010, conversation between Summa and Gallozi in which the monitoring agents believed the two
to be discussing a deal for a half-pound of marijuana. The affidavit also recited many of the
same facts mentioned in the June 11 wiretap application, as well as supplemental observations
made during physical surveillance performed by other government agents. A magistrate judge
approved the government’s warrant request, and the search was executed on August 25, 2010. In
the search, agents recovered many financial documents that implicated Happy’s Pizza in a
1
Chaldean is a Neo-Aramaic language spoken throughout a large region stretching from
northwestern Iran to northern Iraq, along with parts of southeastern Turkey.
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complex scheme to underreport earnings and wages, in which the surplus would be distributed to
franchise owners in cash.2
B
Based on all of the evidence, a grand jury charged Happy Asker and several of his
associates with various offenses related to the underreporting of Happy’s Pizza stores’ income
and payroll. They include one count of conspiracy to defraud the United States, in violation of
18 U.S.C. § 371; multiple counts of filing false income tax returns, in violation of 26 U.S.C.
§ 7206; and multiple counts of corruptly endeavoring to obstruct the IRS’s administration of the
revenue laws, in violation of 26 U.S.C. § 7212. While Asker’s co-defendants all pleaded guilty,
Asker chose to proceed to trial.
Prior to trial, Asker filed several motions in the district court seeking to suppress
evidence gathered pursuant to the June 2010 wiretap and the August 2010 search of Happy’s
Pizza headquarters office. In both motions, Asker argued that Agent Swincicki intentionally
misrepresented surveillance records in order to portray Summa and Gallozi as narcotics
traffickers. In fact, Asker maintained, the record plainly indicated that Summa and Gallozi were
only engaged in the process of obtaining “user’s quantities of marijuana,” and that Swincicki
knowingly exaggerated the magnitude of their drug transactions in order to obtain court approval
for the government’s searches.
Regarding the wiretap affidavit, Asker pointed to Summa’s and Gallozi’s use of the term
“bisla” during their discussions about marijuana. Noting that the word, which is the Chaldean
2
Happy’s Pizza kept two sets of financial records in its corporate headquarters: “Dome Books”
and sales reports. The dome books accurately reflected each store’s actual receipts and
expenditures, while the sales reports listed artificially reduced figures. On a weekly basis,
franchise owners would meet at Happy’s Pizza corporate headquarters to compare records and
divide the difference in cash. See Appellee’s Br. at 4–5.
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term for “onion,” is a commonly recognized euphemism for ounce, Asker argued that Swincicki
intentionally described the term as a generic “quantity of marijuana” so as “to characterize the
intercepted conversations as evidence of ‘major’ trafficking.” Asker concluded that these
misrepresentations were fatal to the required showings of both probable cause and necessity
under the wiretapping statute, 18 U.S.C. § 2518, and that suppression of the evidence was the
proper remedy.
To the extent that the warrant affidavit relied on evidence gathered through the allegedly
improper wiretap, Asker argued that it too was fatally flawed. Moreover, Asker argued that
Swincicki made additional misrepresentations in his warrant affidavit when he concluded that
Summa’s and Gallozi’s use of the word “half” in a June 16, 2010 phone call referred to a “half
pound of marijuana.” Asker asserts that Swincicki knew that “half” referred to a smaller
quantity, such as a half-ounce. It “must have been clear to the affiant,” Asker opined, that the
transactions referred to in the intercepted conversations “were clearly not designed to, nor
capable of, generating the kind of proceeds that would lead to laundering.” Asker maintained
that these misrepresentations were fatal to the affidavit’s showing of probable cause. In addition,
Asker argued that the warrant constituted an improperly overbroad all-records search because it
“effectively authorized the search for and seizure of all the records of all of the businesses . . .
and individuals that were subject to the search.” As the government had failed to make the
“particularly extensive showings of probable cause” required to justify such an extensive search,
Asker concluded that the warrant failed on those grounds as well.
With regard to Swincicki’s alleged misrepresentations in both affidavits, Asker requested
an evidentiary hearing in accordance with Franks v. Delaware, 438 U.S. 154 (1978), in order to
determine whether or not Swincicki’s statements were deliberately or recklessly false. While the
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district court never made a determination as to whether or not a Franks hearing was warranted,
the court nonetheless permitted the defendant to examine Swincicki on the record regarding his
allegedly falsified affidavits in a hearing on June 3, 2014. With respect to the term “bisla,”
Swincicki testified that Summa and Gallozi used the term so broadly that he “was never able to
determine if it was ounces they were talking about or just marijuana in general.” Swincicki
admitted, however, that as the investigation progressed, agents became aware that the word had a
more specific meaning. Although he could not recall the exact date that this revelation occurred,
DEA “line sheets”3 suggested that another monitoring agent made the connection during a call
on June 17, 2010—nearly a week after the government had successfully obtained authorization
for the wiretap on Summa’s phone, but a full month before the government applied for the
warrant to search Happy’s Pizza corporate office. Swincicki maintained that although he
regularly reviewed the line sheets, he was not specifically made aware of this discovery before
he swore out the search warrant affidavit.
Swincicki further testified that the context of Summa’s and Gallozi’s conversations led
him to genuinely believe that the word “half” in the June 16, 2010 phone call was being used in
reference to pounds, not ounces. Swincicki testified that he had personally observed Summa
meet with individuals who were interested in purchasing some of Summa’s marijuana. In those
conversations, and in Summa’s subsequent conversations with Gallozi, no reference was made to
“bisla” or “onion” or any other limiting term. Swincicki testified that, in light of those
conversations and the other evidence Swincicki had gathered over the course of his investigation,
he believed that Summa and Gallozi were discussing pounds of marijuana in their intercepted
conversations.
3
“Line sheets” are regularly maintained call summaries of wiretap monitoring targets, prepared
by DEA agents.
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On the basis of Swincicki’s testimony and the parties’ arguments, the district court denied
both of Asker’s suppression motions in a hearing on October 23, 2014. Although the district
judge indicated that a formal writing would later be filed on the record that fully explained the
court’s rationale, no filing was made. Thus, Judge Denise Hood’s statement on the record is the
only evidence we have of the district court’s basis for its denial of Asker’s suppression motions.
Judge Hood did not expressly address her reasoning for the denial of Asker’s motion to suppress
the wiretap evidence, although she did conclude that “the electronic surveillance was supported
by the evidence included in the affidavit” and that the inclusion of the wiretap evidence in the
government’s affidavit for the warrant to search Happy’s Pizza corporate office was not
“inappropriate.” With respect to the office search warrant, Judge Hood examined the record and
found that there was probable cause and that the warrant was not overbroad. Even if it was
overbroad, Judge Hood continued, the good-faith exception to the exclusionary rule would apply.
The officers who seized evidence “acted in the objectively reasonable belief that their conduct
did not violate the Fourth Amendment,” and nothing suggests that the issuing judge was
intentionally or recklessly misled by the affiant.
C
When the case proceeded to trial, Asker raised two additional issues that are relevant to
this appeal: 1) a motion for a continuance in order to examine evidence offered by the
government that had not been disclosed before trial, and 2) an objection to the government’s
proposed jury instruction of “deliberate ignorance.” The district court ruled against Asker on
both issues.
Asker raised his continuance motion in response to the government’s proposed Exhibit
597, which it had not announced until the fifth day of trial. The exhibit amounted to a computer
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spreadsheet that had been recovered from one of the hard drives taken from a computer at
Happy’s Pizza corporate headquarters. It showed the weekly cash splits for several Happy’s
Pizza stores, including many locations that were not specifically identified in Asker’s indictment.
Asker requested a continuance of a day, arguing that he and his expert had not prepared to
discuss information pertaining to the stores not mentioned in the indictment, and the judge took
the matter under advisement. When court reconvened the next day, however, and the
government formally moved Exhibit 597 into evidence, the district court denied Asker’s motion
and permitted immediate introduction of the evidence. Government witness Daniel Kozlowski,
an investigator at the Department of Justice, referenced the document during his testimony, and it
was also discussed during Asker’s direct-examination testimony.
As trial neared its conclusion, the government submitted proposed jury instructions that
included an instruction for “Deliberate Ignorance.” The instruction, which was modeled after the
Sixth Circuit Pattern Criminal Jury Instruction § 2.09, read as follows:
(1) Next, I want to explain something about proving a defendant’s knowledge.
(2) No one can avoid responsibility for a crime by deliberately ignoring the obvious. If
you are convinced that the defendant deliberately ignored a high probability that the
returns at issue that the defendant filed or aided or assisted in filing were false, then
you may find that the defendant knew that they were false.
(3) But to find this, you must be convinced beyond a reasonable doubt that the defendant
was aware of a high probability that the claims were false, fictitious or fraudulent, and
that the defendant deliberately closed his eyes to what was obvious. Carelessness, or
negligence, or foolishness on his part is not the same as knowledge, and is not enough
to convict. This, of course, is all for you to decide.
Asker objected to the giving of this instruction, arguing that the evidence in the record failed to
satisfy the “factual predicate” necessary for the instruction to be given. Asker believed that the
record reflected that his attention was focused elsewhere in the business during the perpetration
of this tax fraud, not that he had “purposely contrived to avoid learning the truth.” Nonetheless,
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Asker conceded that Sixth Circuit law suggested that the giving of such an instruction even
where the factual predicate has not been met can only amount to harmless error.
Judge Hood took Asker’s objection under advisement, but ultimately gave the contested
instruction to the jury. She, too, acknowledged that the giving of this instruction could only
amount to harmless error in the Sixth Circuit, but further reasoned:
[I]t can be given . . . when the Defendant claims lack of guilty knowledge or when the
facts and evidence support an inference of deliberate ignorance[,] and there are some
statements made during the course of the Government’s proofs and by the Defendant that
I think may raise a question about whether or not there was some inference of deliberate
ignorance.
I think it is also appropriate where the evidence establishes that the Defendant
deliberately chose not to inform himself of critical facts[,] and the [c]ourt may find based
on the Defendant’s testimony that he didn’t look to critical facts relative to the amount of
his income and whether or not there was unreported gross receipts and underreporting of
payroll paid by cash.
In addition, I think whether the Government can prove willfulness or whether the
Defendant’s actions constitute deliberate ignorance are all for the jury to decide in this
particular case.
Consequently, Judge Hood gave the proposed instruction to the jury. At the conclusion of the
nine-day trial, and with this proposed instruction in hand, the jury convicted Asker on all counts.
The district court sentenced him to fifty months of imprisonment, and he brings this appeal.
II
Asker first argues that the district court erred when it denied his motion to suppress the
evidence obtained pursuant to the government’s authorized wiretap. The Sixth Circuit treats a
decision on a motion to suppress wiretap evidence as a mixed question of law and fact,
“review[ing] the district court’s findings of fact for clear error and questions of law de novo.”
United States v. Poulsen, 655 F.3d 492, 503 (6th Cir. 2011). A factual finding amounts to clear
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error “when, although there may be evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.” United
States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999).
A
Because “[s]tanding is the ‘threshold question in every federal case,’” Grendell v. Ohio
Supreme Court, 252 F.3d 828, 832 (6th Cir. 2001) (quoting Coyne v. Am. Tobacco Co., 183 F.3d
488, 494 (6th Cir. 1999)), we first consider the government’s contention that Asker lacks
standing to challenge most of the intercepted conversations in this dispute.
Electronic wiretap applications are governed by 18 U.S.C. § 2518, which provides that
“[a]ny aggrieved person” may move to suppress any “unlawfully intercepted” communication in
a hearing before a court of law. Id. § 2518(10)(a). The statute further defines “aggrieved
person” as one “who was a party to any intercepted wire, oral, or electronic communication or a
person against whom the interception was directed.” Id. § 2510(11) (emphasis added). As the
government notes, Asker was a “party” only with respect to one conversation that the
government introduced at trial: a June 23, 2010 phone call between Summa and Asker in which
the two agreed to meet at Happy’s Pizza corporate office. In every other conversation that Asker
seeks to suppress, he was not a party. Nor was he a “person against whom the interception was
directed.” 18 U.S.C. § 2510(11). Summa’s phone was the subject of the contested search, and
the government’s wiretap application listed eight “Target Subjects” for monitoring, none of
whom were Asker. Stated more plainly, wiretap searches are subject to the same “established
principle” that governs alleged Fourth Amendment violations: “suppression of the product of a
[violative search] can be successfully urged only by those whose rights were violated by the
search itself, not by those who are aggrieved solely by the introduction of damaging evidence.”
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United States v. Cooper, 868 F.2d 1505, 1509 (6th Cir. 1989) (quoting Alderman v. United
States, 394 U.S. 165, 171–72 (1969)). As such, the government argues, Asker has standing
“only with reference to the interceptions of the telephone conversations . . . in which [Asker]
participated.” Id. at 1510.
Asker encourages us to engage in a broader reading of the statute’s definitional provision.
Emphasizing that “‘aggrieved’ person means a person who was a party to any intercepted wire,”
Appellant’s Reply Br. at 2 (quoting 18 U.S.C. § 2510(11)), Asker suggests that the statute
entitles him to challenge the interceptions as a whole, regardless of whether or not he was a
participant in the specific conversation he seeks to suppress. In advancing this argument, Asker
attempts to portray the language in Cooper as dicta, noting that the defendant in that case only
sought to challenge the intercepted telephone conversations to which he was a party. Asker’s
argument misreads our precedent, however. While the defendant in that case did only seek to
challenge those conversations, he attempted to do so on the basis of alleged violations against
“each separate putative participant” of the intercepted communications, whether or not they were
actively engaged in a conversation with the defendant. Cooper, 868 F.2d at 1509 (internal
quotation omitted). The principle undergirding that “pervasive argument” that the court rejected
in Cooper is the same that Asker seeks to invoke here—that a defendant can obtain relief based
upon the alleged legal injuries of others. Ibid. That he simply cannot do.
Asker nonetheless has standing to challenge the one conversation in which he was a
participant that was admitted at trial. In that regard, he advances two arguments on appeal:
1) that the probable-cause showing of the affidavit was fatally flawed by the alleged
misrepresentations of Agent Swincicki, and 2) that the showing of necessity required by
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18 U.S.C. § 2518(3)(c) was similarly flawed by the same alleged misrepresentations. Neither
argument has merit.
B
18 U.S.C. § 2518 requires that a judge find probable cause before granting the
government’s request for a wiretap. This includes both probable cause that the targeted
individual is committing, has committed, or is about to commit a particular enumerated offense,
and that the proposed wiretap will intercept communications concerning that offense. Id.
§ 2518(3)(a)–(b). Probable cause means the same in the federal wiretapping statute as it does in
the context of an ordinary search warrant. See United States v. Alfano, 838 F.2d 158, 161–62
(6th Cir. 1988). Determining whether probable cause exists is not an exact science, and judges
are instructed to look at the “totality of the circumstances and in a reasonable and common sense
manner . . . . [T]he exact quantum of support required has frequently been described as a fair
probability, but more than a mere suspicion, that such evidence will be discovered.” Id. at 162
(internal quotations omitted). As such, we ordinarily “accord[] ‘great deference’ to a
magistrate’s determination,” United States v. Leon, 468 U.S. 897, 914 (1984) (quoting Spinelli v.
United States, 393 U.S. 410, 419 (1969)), and we will not reverse his decision “if the record
contains a ‘substantial basis for his probable cause findings.’” Alfano, 838 F.2d at 162 (quoting
United States v. Lambert, 771 F.2d 83, 93 (6th Cir. 1985)).
The defendant who attacks a judge’s determination of probable cause by “challeng[ing]
the veracity of statements made in [the] affidavit that formed the basis for [the] warrant has a
heavy burden.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). He must make
“allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations
must be accompanied by an offer of proof.” Franks v. Delaware, 438 U.S. 154, 171 (1978).
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Mere “[a]llegations of negligence or innocent mistake are insufficient.” Ibid. This burden is
even greater where, as here, the defendant alleges that the affiant intentionally omitted material
information from the affidavit. “[A]ffidavits with potentially material omissions, while not
immune from Franks inquiry, are much less likely to merit [potential suppression] than are
affidavits including allegedly false statements.” Mays v. City of Dayton, 134 F.3d 809, 815 (6th
Cir. 1998). To be successful on these grounds, the defendant must make a “strong preliminary
showing that the affiant, with an intention to mislead excluded critical information from the
affidavit.” Id. at 816. Even where the defendant meets this heightened standard, the warrant
may still stand if “absent the challenged statements, there remains sufficient content in the
affidavit to support a finding of probable cause.” Bennett, 905 F.2d at 934 (citing Franks,
438 U.S. at 171). If the defendant can successfully make this additional showing, however, the
evidence should be suppressed. Ibid.
In this case, our inquiry is made more difficult by the failure of the district judge to make
a fully detailed finding on the record when she denied Asker’s wiretap suppression motion. The
only language this court has to review on appeal is the district judge’s finding that “the electronic
surveillance was supported by the evidence included in the affidavit.” When factual issues are
integral to a ruling on a pretrial motion, the district court “must state its essential findings on the
record.” Fed. R. Crim. P. 12(d); United States v. Thomas, --- F. App’x ---, 2016 WL 6427287 at
*7 (6th Cir. Oct. 31, 2016) (citing United States v. Moore, 936 F.2d 287, 288 (6th Cir. 1991)
(remanding for reconsideration where a court had made a suppression decision only by “margin
entry”)). A failure to comply with this requirement will generally be deemed an abuse of
discretion. Id. However, even in the absence of explicit findings, the ruling may be upheld “if
the reason for the district court’s denial is apparent on the face of the record.” United States v.
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Mitchum, 208 F.3d 216 (Table), 2000 WL 222578 at *3 (6th Cir. Feb. 16, 2000). In Mitchum,
the district court denied a suppression motion challenging the validity of a search warrant and
supporting affidavit. On appeal, the district court’s failure to make explicit findings was deemed
not to frustrate meaningful review because the reviewing court could ascertain from the face of
the supporting affidavit that it was neither false nor overbroad. Ibid.
Here, too, the record provides the necessary support to uphold the district court’s
conclusion. The district court’s determination that the affidavit is free of recklessly false
statements is a finding of fact subject to the clear-error standard. See United States v. Rice,
478 F.3d 704, 709 (6th Cir. 2007) (citing Bennett, 905 F.2d at 934). Upon review of the record,
there is nothing that leaves us with the “definite and firm conviction that a mistake has been
committed.” Navarro-Camacho, 186 F.3d at 705. As an initial matter, the statements that Asker
contests in Swincicki’s affidavit are factually true—the term “bisla” actually did refer to an
“amount of drugs.” Even if we were to conclude that such a generic reference constitutes a
material omission because the surveillance targets were dealing in a more precise amount,
nothing in the record suggests that Asker made the “very rare . . . strong preliminary showing
that” Swincicki made that omission with the intent to mislead the authorizing magistrate. See
Mays, 134 F.3d at 816. Swincicki did not “admit[] that the statements in his affidavit were
untrue,” Bennett, 905 F.2d at 934, nor did his testimony give rise to an inference of intentional
deception. At best, Swincicki’s conduct during the investigation amounts to the kind of
“negligence or innocent mistake” that Franks was never intended to remedy. Franks, 438 U.S.
at 171.
Notwithstanding ambiguity in the definition of “bisla,” the affidavit contains abundant
information pertaining to narcotics crimes. Appellant’s brief practically concedes this point,
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noting that “[o]n its face, the affidavit certainly raises the specter of drug trafficking activity of a
sort which might implicate financial crimes as well.” Appellant’s Br. at 23. The affidavit refers
to over 190 intercepted conversations between Summa and Gallozi, approximately 20 of which
involved “buying and selling marijuana or business information.” The remaining conversations
involved smoking marijuana. The two also frequently discussed obtaining marijuana, including
the various sources from which it could be obtained. In addition, the affidavit contains
information from a confidential informant (“CS-1”) who indicated that Gallozi’s income came
from selling marijuana. This is sufficient for a finding of probable cause. See United States v.
Moore, 661 F.3d 309, 312–13 (6th Cir. 2011) (finding probable cause where a confidential
informant reported only seeing “drugs of an unspecified quantity”); United States v. Fowler,
535 F.3d 408, 414 (6th Cir. 2008) (finding probable cause where a confidential informant
reported that the defendant was “selling and using” drugs and had seen a bag of drugs in the
defendant’s car); Alfano, 838 F.2d at 162 (finding probable cause where there was a “recurring
pattern” of phone calls between suspected conspirators that “involved a drug-related code”). The
affidavit also included extensive details about the surveillance targets’ prior drug offenses.
Although not dispositive, they further support a finding of probable cause. See United States v.
Martin, 526 F.3d 926, 937 (6th Cir. 2008).
The affidavit also contains substantial information relating to the money-laundering
allegations. CS-1 reported conversations with Gallozi where the two discussed how the
informant could invest drug money in a Happy’s Pizza location. Another informant (“CS-2”)
reported conversations with a Happy’s Pizza manager, where the manager told the informant that
“[Asker] only lets narcotics traffickers and other lawbreakers open a [Happy’s Pizza].” This
informant also believed, based on conversations with other individuals associated with Happy’s
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Pizza, that Summa was the point of contact for investors interested in opening their own store.
Both informants, according to Swincicki’s affidavit, had track records of providing truthful
information that had been successfully corroborated by law enforcement. And the informants’
tips had been corroborated by additional police investigation, such as the contact list recovered
during the trash pull of Happy’s Pizza corporate office. This, too, supports a finding of probable
cause. See Moore, 661 F.3d at 313 (finding probable cause based on information from a
confidential informant whose reliability and basis for knowledge was provided); United States v.
Gunter, 551 F.3d 472, 480 (6th Cir. 2009) (finding probable cause based on information from a
reliable informant that had been corroborated by police).
For these reasons, we hold that the district court was correct in concluding that the
wiretap was supported by sufficient probable cause, as required by 18 U.S.C. § 2518.
C
18 U.S.C. § 2518 also requires that the government show necessity for the wiretap by
giving “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.” Id. § 2518(1)(c). This provision was included in the statute in order “to guarantee
that wiretapping or bugging occurs only when there is a genuine need for it and only to the extent
that it is needed.” Dalia v. United States, 441 U.S. 238, 250 (1979). Further, the provision
“protects against the impermissible use of a wiretap as the ‘initial step in [a] criminal
investigation.’” Rice, 478 F.3d at 710 (quoting United States v. Giordano, 416 U.S. 505, 515
(1974)). The necessity requirement does not require the government to exhaust every
investigative tool, however. It does not require the government “to prove that every other
conceivable method has been tried and failed.” Alfano, 838 F.2d at 163.
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Asker claims that this requirement was not satisfied because the government’s
preliminary investigations, based on two months of monitoring Gallozi’s calls pursuant to a
separate wiretap, revealed “just some young people getting high, and no need whatsoever for the
kind of grossly invasive intrusion which wiretapping presents.” Appellant’s Br. at 25. Stated
differently, Asker attacks the government’s showing of necessity on the same ground that he
attacks the showing of probable cause—that the government had intentionally misrepresented the
scope of Summa’s and Gallozi’s dealings, and that a truthful representation of their conduct
would not permit the government to satisfy the requirements of the statute. As Asker puts it,
“Surely, . . . an Article III judge . . . would have thought twice about the necessity of employing
electronic surveillance to investigate the activities of Harold and Kumar – and, on reflection,
declined the invitation to do so.” Ibid.
As the government points out, however, this argument fundamentally misunderstands the
meaning of the necessity requirement. The quantity of drugs Summa and Gallozi were
purportedly dealing had no bearing on whether or not “the investigators g[a]ve serious
consideration to the non-wiretap techniques prior to applying for wiretap authority and that the
court [was] informed of the reasons for the investigators’ belief that such non-wiretap techniques
[were] inadequate.” Rice, 478 F.3d at 710 (quoting Alfano, 838 F.2d at 163–64). The necessity
requirement is designed to ensure that wiretaps are not routinely used where “traditional
investigative techniques would suffice to expose the crime.” United States v. Kahn, 415 U.S.
143, 153 n.12 (1974). In other words, the necessity requirement is not concerned with the
investigators’ belief about the underlying substance of the alleged crime. That inquiry is
addressed by the requirement for probable cause. Rather, necessity is concerned with the
investigative procedures employed by the government prior to the application for a wiretap.
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In this case, the record reflects that the government employed numerous alternative
investigative techniques before resorting to this wiretap application. These included 1) the
interception of prior communications from Gallozi’s phone; 2) the execution of search warrants
to obtain GPS location information for Summa’s phone; 3) obtaining toll records for Summa’s
phone; 4) consulting with confidential informants; and 5) attempted physical surveillance. These
techniques provided the investigating agents with some information about the Target Subjects’
alleged criminal activity, but were ultimately insufficient to reveal the full scope of their
operation. The affidavit also set out the various non-wiretap techniques that investigators
considered, but deemed not likely to succeed, including 1) the use of closed-circuit-television
surveillance; 2) collection of Target Subjects’ trash; 3) attempting to gain the cooperation of the
Target Subjects; 4) convening a Federal Grand Jury for investigation; and 5) the use of an
undercover agent. Our case law suggests that explication of these steps was sufficient to
demonstrate that the government had met the statutory necessity requirements. See Poulsen,
655 F.3d at 504 (finding the necessity requirement satisfied where the government had “used a
confidential informant, consensual recordings, a pen register, physical surveillance, and
documents before resorting to the wiretap.”).
D
In any event, even if we were to find that the wiretap evidence should have been
suppressed by the district court, it almost certainly amounts to harmless error. See United States
v. Glover, 681 F.3d 411, 421 (D.C. Cir. 2012). Since Asker only has standing to challenge the
lone intercepted conversation in which he participated that was admitted at trial, see supra Part
I.A, there cannot be a reasonable doubt that the admission of that single call did not affect the
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jury’s verdict. Cf. United States v. Garcia, 496 F.3d 495, 506 (6th Cir. 2007) (applying the
“harmless beyond a reasonable doubt” test to an alleged violation of the Fourth Amendment).
Asker’s June 23, 2010 conversation, which took place between him and Summa, lasted
only 53 seconds and concerned their plan to meet in Asker’s office later in the day. It was only
relevant to the government’s charge that Asker had corruptly endeavored to obstruct the IRS by
concealing Summa’s involvement in Happy’s Pizza. At trial, its probative value was limited to
demonstrating that Asker lied when he told IRS investigators that Summa had “no involvement”
with Happy’s Pizza and that the two “never” spoke. The government introduced extensive
additional evidence on this point, including other intercepted calls, call logs demonstrating
Asker’s frequent calls with Summa, as well as a corporate contact list that indicated Summa was
the lead contact for one store. In the context of this evidentiary backdrop, the admission of the
contested June 23 wiretap conversation cannot be deemed to rise above the level of harmless
error. For these reasons, we affirm the district court’s decision to admit evidence gathered
pursuant to the challenged wiretap.
III
Asker also challenges the district court’s ruling on a motion to suppress evidence
obtained pursuant to a search warrant of Happy’s Pizza corporate offices. As a motion to
suppress is a mixed question of law and fact, “we review the district court’s findings of fact for
clear error and its conclusions of law de novo.” United States v. Ellis, 497 F.3d 606, 611 (6th
Cir. 2007). A factual finding amounts to clear error “when, although there may be evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Navarro-Camacho, 186 F.3d at 705.
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A
Asker advances one argument on this point that can be dismissed based on the analysis
given above: that the affidavit showing probable cause was “fatally flawed” by the inclusion of
information obtained through the wiretap he challenged in his first suppression motion. See
supra Part II. Because it is clear that the challenged wiretap was legal and proper, it bears no
impermissible fruits that taint the affidavit supporting this warrant search.
Even if we were to conclude that the challenged wiretap was not supported by probable
cause, Asker’s standing to attack this search would be limited. It is well established that “one
cannot assert indirectly what he cannot assert directly.” See United States v. Scasino, 513 F.2d
47, 51 (5th Cir. 1975). Asker can attack this search warrant based on the allegedly improper
wiretap only to the extent that he can attack the wiretap itself. As Asker has standing to
challenge the legality of the wiretap on Summa’s phone only with respect to the lone
conversation in which he was a participant, see supra Part II.A, he is similarly limited in using
the allegedly illegal wiretap to challenge this search warrant. And as previously discussed, the
single conversation that Asker can legally challenge is of such limited probative value that it
could hardly amount to anything more than harmless error. See supra Part II.D.
B
Asker also argues that the affidavit misrepresented crucial aspects of the information
acquired over the course of the investigation. Specifically, Asker argues that Swincicki
intentionally misrepresented the scope of Summa’s and Gallozi’s drug transactions, just as he did
in the wiretap affidavit. Here, however, the point of emphasis is not on their use of the word
“bisla,” but rather on their use of the word “half.” Swincicki’s believed that the word “half” was
being used to refer to a half pound of marijuana. Asker argues, just as he did with respect to the
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wiretap affidavit, that Swincicki “must have known” that Summa and Gallozi were engaged in
securing “user’s quantities of marijuana” rather than drug trafficking. Thus, Swincicki’s
reference to pounds of marijuana, when he knew that they were discussing ounces, was
intentionally misleading. Because of this misrepresentation, Asker argues, the warrant lacks
probable cause.
This inquiry mirrors the one we conducted with respect to Asker’s challenge to the
probable cause component of the wiretap application. See supra Part II.B. Asker bears the
“heavy burden” of showing that the affiant made statements with “deliberate falsehood or [with]
reckless disregard for the truth.” Bennett, 905 F.2d at 934; Franks, 438 U.S. at 171. Even where
the defendant can meet this burden, however, the warrant may still stand if “absent the
challenged statements, there remains sufficient content in the affidavit to support a finding of
probable cause.” Bennett, 905 F.2d at 934.
Again, the district judge made limited findings on the record regarding her rationale for
denying Asker’s motion to suppress the search-warrant evidence. Judge Hood’s decision, stated
on the record, reads:
The search warrant is based, I believe, on a finding that there is probable cause to
believe that the individuals engaged in narcotics sales were investing narcotics proceeds
in Happy’s Pizza franchises for the purpose of the search warrant and in violation of the
anti-money laundering statute.
Evidence included in the affidavit show that the Defendants were involved in
advising, directing and knowing investment of narcotics proceeds into Happy’s Pizza
franchises.
Here, as with Judge Hood’s finding on Asker’s motion to suppress the wiretap evidence, the
court’s ambiguous brevity verges on a Rule 12(d) violation. See supra Part II.B. Nonetheless,
because the record provides sufficient evidence to support the district court’s decision, we
affirm.
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The district court’s determination that Swincicki’s affidavit was truthful (or at least not
recklessly false) is a finding of fact subject to clear-error review. See United States v. Rice,
478 F.3d 704, 709 (6th Cir. 2007) (citing Bennett, 905 F.2d at 934). On its face, Asker’s
argument has some merit. The record reflects that at least some agents became aware that
Summa and Gallozi were discussing smaller amounts of drugs by June 17, 2010, when the
connection was first made between “bisla” and ounce. Although this revelation occurred one
week too late to cast serious doubt on Swincicki’s truthfulness in the wiretap affidavit, the
discovery happened a full month before Swincicki swore out this search warrant. At the Franks
hearing in the trial court, Swincicki indicated that despite this significant passage of time, he had
still not been made aware of this discovery. In addition, Asker argues that the dollar amounts
discussed during these conversations were indicative of personal consumption rather than large-
scale drug trafficking. Taken together, these facts raise a suspicion that Swincicki might have
known more than he chose to let on in his affidavit.
We need not reach the merits of this argument, however, because even if we were to
conclude that Asker had made this preliminary showing, the affidavit without Swincicki’s
misrepresentations still showed probable cause. Bennett, 905 F.2d at 934. The affidavit included
testimony from two separate confidential informants, who stated that based on their
conversations with Gallozi and others associated with Happy’s Pizza, the restaurants were being
used to launder narcotics proceeds. The affidavit also included evidence obtained from a
January 2010 search of the home of suspected drug traffickers Mark and Jeffrey Markoz, which
revealed a half-pound of marijuana and plans to help their father open a Happy’s Pizza location
through their relationship with Happy Asker. In addition, the affidavit referenced the contact list
recovered during the 2009 trash pull at Happy’s Pizza corporate headquarters, which included
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numerous location owners with histories of narcotics trafficking. The affidavit included even
more evidence that Happy’s Pizza was involved in money laundering, including federal tax-
return data that corroborated the testimony of confidential informants that drug traffickers
routinely invested in Happy’s Pizza locations. Taken together, the remaining evidence in the
affidavit clearly makes out a showing of probable cause sufficient to support a search warrant for
the Happy’s Pizza corporate office.
C
Finally, Asker argues that the warrant was unconstitutionally overbroad. The Fourth
Amendment prohibits limitless searches, requiring that warrants “particularly describ[e] the
place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. This
requirement is designed to protect against the “danger of unlimited discretion” inherent in a
system that permits warranted searches of unspecified scope. United States v. Savoca, 761 F.2d
292, 298–99 (6th Cir. 1985). “[T]he degree of specificity required is flexible and will vary
depending on the crime involved and the types of items sought,” making a warrant valid so long
as “it is as specific as the circumstances and the nature of the activity under investigation
permit.” United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988); United States v. Blum,
753 F.2d 999, 1001 (11th Cir. 1985). This court’s approach is thus best characterized as a case-
by-case determination that measures the particularity of the warrant against the nature of the
crime alleged.
Asker argues that the search warrant for Happy’s Pizza corporate office, which
authorized a search of all records and documents “relat[ing] to the ownership, partnership,
investment, construction and equipment costs, operating income and expenses, losses and/or
distribution of income and/or profits attributable to each Happy’s Pizza,” was an improperly
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overbroad “all records” search. Asker contends that, unless “the government establishes
probable cause to believe that the entire business is merely a scheme to defraud or that all of the
business’s records are likely to evidence criminal activity,” the warrant fails to meet the Fourth
Amendment’s particularity requirement. United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995);
see also United States v. Hanna, 661 F.3d 271, 286 (6th Cir. 2011). This requires demonstrating
that the alleged criminal activity was the “central purpose” of the place to be searched. United
States v. Rude, 88 F.3d 1538, 1551 (9th Cir. 1996).
The terms of the warrant make it clear, however, that the warrant was not an “all records”
search as Asker alleges. The warrant did not authorize a search for “every business record” in
Happy’s Pizza corporate office. Kow, 58 F.3d at 427. Instead, the warrant authorized the seizure
of records that were specifically related to the alleged drug-trafficking and money-laundering
activities. Given the scope of the alleged money laundering, this list is unsurprisingly large, but
nonetheless tailored. The three general categories of documents mentioned by the warrant—
franchise-location ownership, the identities of those owners, and the dividends paid to each
investor—are all related to the government’s suspicion that Happy’s Pizza was involved in a
scheme to launder narcotics-trafficking proceeds. That the documents covered by these search
parameters are exceptionally numerous does not alter the fact that “[t]he description in the
warrant is directed towards items likely to provide information concerning the [underlying
offense] and therefore did not authorize the officers to seize more than what was reasonable
under the circumstances.” United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988).
In any event, as the district court noted, even if we were to find that the warrant was
constitutionally overbroad, the good-faith exception would still permit the introduction of
gathered evidence. United States v. Leon, 468 U.S. 897 (1984), permits the introduction of
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evidence “obtained in objectively reasonable reliance on a subsequently invalidated search
warrant.” Id. at 922. While the good-faith exception is inapplicable where the issuing judge is
“misled by information in an affidavit that the affiant knew was false,” id. at 923, the warrant’s
alleged overbreadth is entirely unrelated to Asker’s claim that it contained intentionally
misleading information. As the alleged overbreadth is neither apparent on the face of the warrant
nor the result of intentional misinformation, reliance upon it in the search of Happy’s Pizza
corporate offices was reasonable and the good-faith exception is applicable.
IV
Asker also argues that the district court erred when it denied his motion for a continuance
in order to prepare for the government’s introduction of Exhibit 597, a computer spreadsheet
showing the weekly cash splits at several Happy’s Pizza locations, and that had not been
disclosed prior to trial. We review the denial of a motion for continuance for an abuse of
discretion. United States v. Amawi, 695 F.3d 457, 480 (6th Cir. 2012).
A
We have consistently held that a district court possesses “broad discretion” in choosing
whether or not to grant a request for a continuance, and that “only an unreasoning and arbitrary
‘insistence upon expeditiousness in the face of a justifiable request for delay’” will be deemed an
abuse of discretion. Morris v. Slappy, 461 U.S. 1, 11–12 (1983) (quoting Ungar v. Sarafite,
376 U.S. 575, 589 (1964)). This is no “mechanical test[]”--rather, “we look for a showing from
the defendant of prejudice, i.e., a showing that the continuance would have made relevant
witnesses available, or would have added something to the defense.” United States v. Wirsing,
719 F.2d 859, 866 (6th Cir. 1983) (internal citations omitted).
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Asker argues that the denial of his motion for a one-day continuance both prejudiced his
defense and constituted an abuse of discretion. Asker’s argument, however, ignores the fact that
the contested spreadsheet was taken from one of his own computers in the Happy’s Pizza
corporate office, and had been previously disclosed to him in the form of a hard-drive image
during the discovery process. Where a defendant has previously received evidence or owned its
original source, we have consistently held that the trial court’s decision to deny a motion for
continuance constitutes neither prejudice nor an abuse of discretion. See United States v. Cohen,
515 F. App’x 405, 411 (6th Cir. 2013) (no abuse of discretion for denying a continuance to
review copies of intercepted calls that the defendant previously received “well in advance of the
hearing.”); United States v. Frost, 914 F.2d 756, 765 (6th Cir. 1990) (no prejudice for denying a
continuance to review checks that had been written from the defendant’s partnership).
Nor does Asker succeed in making a showing of prejudice. Although he cries foul at the
government’s practice of choosing to produce the exhibit “in the middle of trial” that allegedly
“went well beyond the very limited basis on which the case had been contested,” Appellant’s Br.
at 50, he can identify no additional witnesses or pieces of evidence that he would have
introduced had he been granted his requested one-day continuance. This failure is fatal to his
claim that the district court made a reversible error. See United States v. King, 127 F.3d 483, 487
(6th Cir. 1997) (finding no actual prejudice because the defendant “wholly failed to explain what
counsel would have done differently had the district court granted the continuance.”).
In light of Asker’s failure to demonstrate reversible prejudice or that the district court
abused its discretion, we affirm the district court’s decision to deny Asker’s motion for a
continuance.
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V
Lastly, Asker argues that the district court erred when it gave the government’s proposed
jury instruction on “deliberate ignorance.” We review challenges to a jury instruction for an
abuse of discretion. United States v. Mitchell, 681 F.3d 867, 876 (6th Cir. 2012). A jury charge
is not an abuse of discretion unless it “fails accurately to reflect the law,” United States v.
Geisen, 612 F.3d 471, 485 (6th Cir. 2010), and reversal is not warranted unless “the instructions,
viewed as a whole, were confusing, misleading, or prejudicial.” United States v. Kuehne,
547 F.3d 667, 679 (6th Cir. 2008).
A
“[T]he decision to give [the deliberate-ignorance] instruction is to be approached with
significant prudence and caution . . . . Indeed, we have said that the instruction ought to ‘be used
sparingly.’” Mitchell, 681 F.3d at 876 (quoting Geisen, 612 F.3d at 486). It is an appropriate
instruction where “(1) the defendant claims a lack of guilty knowledge; and (2) the facts and
evidence support an inference of deliberate ignorance.” Ibid. Thus, “the district court therefore
must determine that there is evidence to support an inference ‘that the defendant acted with
reckless disregard of [the high probability of illegality] or with a conscious purpose to avoid
learning the truth.’” Ibid. (alteration in original) (quoting United States v. Seelig, 622 F.2d 207,
213 (6th Cir. 1980)).
At trial, the district court concluded that the instruction was appropriate because “there
are some statements made during the course of the Government’s proofs and by the Defendant
that I think may raise a question about whether or not there was some inference of deliberate
indifference.” Asker argues that the district court conflated mere “absence of knowledge – his
defense – with avoidance of knowledge,” thus diluting the government’s burden of proof by
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permitting jurors to “pile inference on inference” to find that he met the knowledge requirement
of the statute. Appellant’s Br. at 57–59. The government argues that this “circumstantial
evidence” distinction is unfounded in prior case law, and in any event is swallowed up by the
harmless-error doctrine. Appellee’s Br. at 54–55.
The record and the case law both favor the government’s position. Asker testified that he
was not aware that both his tax returns and the tax returns for Happy’s Pizza were false,
satisfying the first element for an instruction on “deliberate ignorance.” The remainder of the
evidence on the record seems to support an “inference of deliberate ignorance.” Mitchell,
681 F.3d at 876. With respect to the invalid tax returns, Asker claims that he signed them
without going over them with his accountant, and that other employees at Happy’s Pizza were
responsible for reviewing the corporate returns for accuracy. Asker similarly argues that his job
required him to focus on big-picture business issues, leaving the management of individual stores
to their franchisee-owners. His argument is analogous to the one rejected by this court in
Mitchell, where we permitted a deliberate-ignorance instruction where the defendant claimed that
“despite his long tenure in the firm, he paid little attention to the clients of his partners and knew
little about the actual running of the law firm.” Id. at 878. Just as in Mitchell, where the
defendant consistently accepted payments from his firm’s profit-sharing scheme “without
knowing where they were coming from,” Asker drew his share of the weekly cash profits from
the stores he owned while claiming ignorance of the fraudulent scheme that made those inflated
profits possible. Ibid. Additionally, Asker hired the accountants whom he alleged were
responsible for the fraud, and worked from the corporate office that the evidence indicated
actively monitored the finances of each individual Happy’s Pizza location. Ibid. (finding a
deliberate-indifference instruction appropriate where the defendant had access to the firm’s
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financial accounts). Taken together, this evidence is sufficient to support an instruction of
“deliberate indifference.”
Asker’s argument that the deliberate-ignorance instruction diluted the government’s
burden also fails. We have previously held that the presentation of “deliberate ignorance as an
alternative to actual knowledge, either of which satisfies the statutory knowledge requirements”
does not run the risk that the jury will misunderstand the government’s burden of proving guilt
beyond a reasonable doubt. United States v. Patel, 651 F. App’x 468, 472 (6th Cir. 2016).
In any event, any error in the giving of the instruction is harmless. This court has held
that even when unsupported by the evidence, “a deliberate ignorance instruction that properly
states the law is harmless error.” United States v. Rayborn, 491 F.3d 513, 520–21 (6th Cir.
2007). Consequently, we “will not overturn a jury’s verdict so long as sufficient evidence
supports one of the grounds for conviction” on each count. Ibid. This conclusion rests on the
notion that an instruction on deliberate ignorance, “by its own terms, only applies when there is
sufficient evidence to support a finding of deliberate ignorance beyond a reasonable doubt.”
United States v. Mari, 47 F.3d 782, 785 (6th Cir. 1995). Thus, “even if we assume that there was
insufficient evidence to justify giving the instruction, the jury, in following the instruction, must
not have convicted the defendant on the basis of deliberate ignorance.” Ibid. Stated differently,
as long as the instruction accurately states the law and the record reflects sufficient evidence to
convict the defendant on alternative grounds (such as actual knowledge), we assume that the jury
convicted the defendant on those alternative grounds. To conclude otherwise, and find that the
jury actually convicted the defendant on a theory of deliberate ignorance despite insufficient
evidence, “we would have to assume that the jury ignored the jury instructions.” Ibid. Such an
inference “flies in the face of a fundamental tenet of our jury system and has broad detrimental
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implications we are unwilling to embrace.” United States v. Stone, 9 F.3d 934, 940 (11th Cir.
1993). Here, the instruction given conforms with Sixth Circuit Pattern Criminal Jury Instruction
§ 2.09, and the government presented substantial evidence suggesting that Asker was actually
aware of the tax fraud that Happy’s Pizza was perpetrating. Therefore, even if we did consider
the instruction to be unsupported by the record, the error would be harmless in Asker’s case.
VI
Asker seeks to vacate his criminal conviction on the grounds that the district court
committed several errors over the course of his trial. He is not entitled to that relief because he
has failed to raise facts or legal challenges sufficient to surmount the deference we typically give
to the district courts in these matters. Alternatively, Asker’s challenge fails because even where
he might be deemed to have made a plausible case for error, that error was ultimately harmless.
For all of these reasons, we UPHOLD the district court’s rulings and AFFIRM Asker’s
conviction.
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