United States v. Lonnell Glover ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 23, 2013 Decided November 8, 2013
No. 09-3087
UNITED STATES OF AMERICA,
APPELLEE
v.
LONNELL GLOVER,
APPELLANT
Consolidated with 10-3048, 10-3066
Appeals from the United States District Court
for the District of Columbia
(No. 1:09-cr-00129)
Robert S. Becker, appointed by the court, argued the cause
and filed the joint brief for appellant Jonathan Wright.
Adam H. Kurland, appointed by the court, argued the cause
and filed the joint brief for appellant Lonnell Glover.
John P. Gidez, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy Curt,
Anthony F. Scarpelli, and John K. Han, Assistant U.S.
Attorneys.
2
Before: BROWN, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
SILBERMAN, Senior Circuit Judge: Appellants Lonnell
Glover and Jonathan Wright were convicted of conspiring to
possess and distribute more than five kilograms of cocaine. They
appeal on a number of grounds. We agree that with respect to
one of their claims their convictions must be reversed; the
district court erroneously admitted evidence obtained pursuant
to a “facially insufficient” warrant.
I.
Although the convictions in this case were for a conspiracy
to distribute cocaine, the FBI’s initial investigation was directed
at Glover’s distribution of PCP and heroin. The FBI obtained a
warrant to tap Glover’s cell phone, but Glover was careful to
speak only in code when using the cell phone. It was noticed,
however, that Glover had frequent meetings in his truck, so the
FBI obtained a warrant from Judge Collyer of the District Court
for the District of Columbia to place an audio recording device
in the truck. Unfortunately, the truck was parked at the
Baltimore BWI Airport, and the FBI’s affidavit in support of the
warrant made that plain. Nevertheless, the warrant explicitly
stated that FBI agents could forcibly enter the truck, regardless
of whether the vehicle was located in the District of Columbia,
District of Maryland, or the Eastern District of Virginia.
The bug worked. Glover was recorded discussing his PCP-
heroin business, as well as his plans to use funds from that
business to begin distributing cocaine. The cocaine – which was
to come from a Bahamian known as “Foot” – would be driven
3
to Washington from Florida. Jonathan Wright was also
overheard in the truck, taking part in the conspiracy by joining
Glover’s plans to import the cocaine from the Bahamas.
The cocaine conspiracy began to unravel in June of 2007,
when another co-conspirator was apprehended at Miami
International Airport, attempting to smuggle large quantities of
cash into the Bahamas. A few weeks later, on June 19, Glover
was arrested in connection with his earlier PCP and heroin-
related activities. Wright was finally arrested for his role in the
cocaine conspiracy on May 14, 2008.
Glover was charged and convicted on PCP charges in a
separate trial. Both appellants, however, were indicted for the
cocaine conspiracy. The district judge held that the government
had violated the Speedy Trial Act, and dismissed the indictments
without prejudice. But the government reindicted appellants and
they were then convicted by a jury. This appeal followed.
II.
Although we reverse the conviction based on a defective
warrant, that would still permit a new trial (assuming the
government has adequate non-tainted evidence), so it is
necessary to confront, at the outset, appellants’ argument that
their indictment should have been dismissed because of the
government’s violation of the Speedy Trial Act or – in the case
of Wright – a related claim that the Sixth Amendment was
violated.
The Speedy Trial Act requires a trial court to dismiss an
indictment when the government fails to bring the defendant to
trial within 70 days, not counting certain “excludable days.” 18
U.S.C. § 3162(a)(2). The district judge determined – and this is
undisputed – that the government had, indeed, violated the Act;
4
accordingly, he dismissed the indictments. Appellants argue that
the court erred, however, in dismissing the indictments without
prejudice.
The Act lists certain (non-exclusive) factors that a trial
court must consider in determining whether to dismiss an
indictment with or without prejudice. Those are: “the
seriousness of the offense; the facts and circumstances of the
case which led to the dismissal; and the impact of a
reprosecution on the administration of this chapter and on the
administration of justice.” Id.But our review is limited; we can reverse the trial court’s
decision only for an abuse of discretion. “[W]hen the statutory
factors are properly considered, and supporting factual findings
are not clearly in error, the district court’s judgment of how
opposing considerations balance should not lightly be
disturbed.” See United States v. Taylor, 487 U.S. 326, 337
(1988). We easily conclude the district judge’s decision meets
that standard.
Appellants argue that their crime was not “serious,” that
the judge placed undue emphasis on the inadvertent nature of the
government’s violation, and that a dismissal without prejudice
undermines the deterrent effect of the Act. These contentions
are rather flimsy, and are, therefore, rejected. See United States
v. Wright, 6 F.3d 811, 814 (D.C. Cir. 1993) (concluding that
conspiracy to distribute fifty grams of cocaine is a serious
offense, that the inadvertence of the government’s violation of
the Act is a relevant factor, and that deterrence does not require
dismissal with prejudice in all cases).
We also reject Wright’s separate claim that even if the
Speedy Trial Act was not violated, the Sixth Amendment was.
The district court properly considered the four factors it was
5
required to balance: “whether delay before trial was
uncommonly long, whether the government or the criminal
defendant is more to blame for that delay, whether, in due
course, the defendant asserted his right to a speedy trial, and
whether he suffered prejudice as the delay’s result.” Doggett v.
United States, 505 U.S. 647, 651 (1992). The court assumed
arguendo that the delay was long, but noted that part of the
delay was attributed to defendant and, most important, that the
defendant had not shown that his defense was prejudiced
because of the delay.1
* * * *
Which brings us to the core issue in this case – the
allegedly illegal warrant. Appellants argue that the warrant was,
in the language of the statute, “insufficient on its face” because
it was signed by Judge Collyer, in the District of Columbia,
authorizing the FBI to place the electronic bug in Glover’s truck
parked in Maryland – outside of the district court’s jurisdiction.
The government contends that it is perfectly permissible for a
district judge to authorize the placement of such an electronic
listening device on a vehicle anywhere in the United States.
Appellants point to both Title III of the Omnibus Crime
Control and Safe Streets Act of 1968,2 which authorizes wiretaps
or electronic bugs, as well as Rule 41 of the Federal Rules of
Criminal Procedure, which partially implements the statute. But
before discussing the statute and Rule 41 we are obliged to deal
with the government’s argument that our review should be
limited to plain error because appellants never raised the
1
Of course, there is inherent prejudice in loss of liberty, a factor that
the district court properly noted.
2
18 U.S.C. § 2510 et seq.
6
jurisdictional objection to the truck bug. Although Glover’s
written motion to exclude the truck bug evidence before Judge
Hogan3 did not object to the warrant’s alleged jurisdictional
defect, at oral argument counsel seems to have asked that the
motion be amended to include that ground for objection:
I would again move to amend the motion to
include the . . . truck bu[g]. . . . I think . . . that the
requirements of . . . 41(b) apply. . . . [T]he judge
did not have the authority to issue a warrant to
apply a device on a vehicle that’s outside her
jurisdiction.
(Trial Tr. at 4-7, Sept. 10, 2008).
Admittedly, much of counsel’s argument was focused on
the device’s integrated GPS feature and related Fourth
Amendment concerns, which explains why Judge Hogan
apparently did not perceive that counsel was also objecting to
the facial sufficiency of the warrant. Although an argument need
not be made in a written submission to be preserved for review,
see Fraternal Order of Police v. United States, 173 F.3d 898,
902 (D.C. Cir. 1999), counsel should, of course, make every
effort to ensure that their arguments are clearly presented. The
reason we require counsel to preserve arguments is to ensure
that the district court has the opportunity to pass on those
arguments in the first instance. This purpose is undermined if
important arguments are not clearly presented. Ultimately,
3
That motion was made in the PCP case. The earlier PCP case is
relevant here because Judge Huvelle – who presided over the trial that
led to the convictions in this case – stated that she would follow Judge
Hogan’s previous evidentiary rulings, that she would not consider
arguments previously made, and that she would treat all previous
arguments as preserved.
7
however, we need not decide whether the argument was
preserved, because we find that appellants have demonstrated
plain error. See infra; In re Sealed Case, 573 F.3d 844, 847
(D.C. Cir. 2009) (A defendant’s conviction may be reversed,
even when he failed to preserve an argument, if he demonstrates
plain error.).
The statute specifies that “[w]henever any wire or oral
communication has been intercepted, no part of the contents of
such communication and no evidence derived therefrom may be
received in evidence in any . . . proceeding . . . if the disclosure
of that information would be in violation of this chapter.” 18
U.S.C. § 2515. The statute further specifies that an
aggrieved person . . . may move to suppress the
contents of any wire or oral communication
intercepted pursuant to this chapter, or evidence
derived therefrom, on the grounds that–
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under
which it was intercepted is insufficient on its face;
or
(iii) the interception was not made in conformity
with the order of authorization or approval.
Id. § 2518(10)(a) (emphasis added).
The relationship between paragraphs (i) and (ii) of the
statute is, at first glance, rather puzzling, since it would appear
that if the authorization was “insufficient on its face,” the
communication would be necessarily “unlawfully intercepted.”
But the Supreme Court has recognized a broad reading of
paragraph (i) would render (ii) and (iii) redundant and “drained
of meaning.” United States v. Chavez, 416 U.S. 562, 575 (1974);
accord United States v. Donovan, 429 U.S. 413, 432 (1977);
8
United States v. Giordano, 416 U.S. 505, 525 n.14 (1974); cf.
United States v. Johnson, 696 F.2d 115, 119-21 (D.C. Cir. 1982)
(interpreting analogous provisions of the District of Columbia
Code). Therefore, the Court read paragraph (i) as requiring a
broad inquiry into the government’s intercept procedures to
determine whether the government’s actions transgressed the
“core concerns” of the statute, whereas (ii) is a mechanical test;
either the warrant is facially sufficient or it is not. See Giordano,
416 U.S. at 527.
Although a number of our sister circuits have imported
the core concerns test into paragraph (ii), we think this approach
is contrary to the plain text of the statute. See United States v.
Traitz, 871 F.2d 368, 379 (3d Cir. 1989); United States v. Vigi,
515 F.2d 290, 293 (6th Cir. 1975); United States v. Robertson,
504 F.2d 289, 292 (5th Cir. 1974). Suppression is the mandatory
remedy when evidence is obtained pursuant to a facially
insufficient warrant. There is no room for judicial discretion.
Indeed, applying the “core concerns” test to paragraph (ii) would
turn the Supreme Court’s approach on its head, elevating policy
over text. In construing the phrase “unlawfully intercepted” in
paragraph (i), the Supreme Court only turned to congressional
policies after first applying traditional tools of statutory
construction, which indicated that a limiting construction was
necessary to avoid rendering paragraphs (ii) and (iii)
“surplusage.” Giordano, 416 U.S. at 526; see also D. Ginsberg
& Sons v. Popkin, 285 U.S. 204, 208 (1932) (It is a “cardinal
rule that, if possible, effect shall be given to every clause and
part of a statute.”). But applying the “core concerns” test to
paragraph (ii) would actually treat that paragraph as
“surplusage”– precisely what the Supreme Court tried to avoid
in Giordano.
Turning then to the jurisdictional language of Title III,
it permits a judge to “authoriz[e] or approv[e] interception of
9
wire, oral, or electronic communications within the territorial
jurisdiction of the court in which the judge is sitting (and outside
that jurisdiction but within the United States in the case of a
mobile interception device authorized by a Federal court within
such jurisdiction).” 18 U.S.C. § 2518(3) (emphasis added).
To be sure, the parenthetical phrase is somewhat
ambiguous. It seems reasonable to read the words “such
jurisdiction” in the phrase as referring back to the jurisdiction in
which the judge is sitting; i.e., in this case, the District of
Columbia, since the provision mentions no other jurisdiction. It
is also possible that the phrase, by implication, refers to the
jurisdiction in which the mobile interception device is installed.
Under either reading, the parenthetical makes clear that a judge
cannot authorize the interception of communications if the
mobile interception device was not validly authorized, and a
device cannot be validly authorized if, at the time the warrant is
issued, the property on which the device is to be installed is not
located in the authorizing judge’s jurisdiction. A contrary
reading would render the phrase “authorized by a Federal court
within such jurisdiction” completely superfluous.
Indeed, the legislative history – ironically brought to our
attention by the government in a 28(j) letter – confirms our
conclusion that the government’s interpretation is implausible.
According to a Senate Judiciary Committee report, the objective
of the language was to ensure that warrants remain effective in
the event a target vehicle is moved out of the issuing judge’s
jurisdiction after a warrant is issued, but before a surveillance
device can be placed in the vehicle. S. Rep. No. 99-541, at
106(a) (1986).4
4
Presumably, the statute also permits a judge to authorize extensions
to eavesdropping warrants after the vehicle has left the jurisdiction, so
long as the listening device was lawfully placed.
10
The government points to a handful of cases in which
courts have found that an “interception” under Title III takes
place at both the location of the listening post and at the location
of a tapped phone.5 The government argues that in light of these
cases, we should recognize that an issuing court has the power
to authorize covert, trespassory entries onto private property,
anywhere in the country, for purposes of placing surveillance
equipment. The only jurisdictional limitation the government
acknowledges is that the listening post must be located in the
issuing court’s jurisdiction.
Of course, the statute does not refer to a “listening post,”
and none of the cases cited by the government addresses the
jurisdiction of the issuing court to authorize law enforcement
officers to covertly place a listening device on private property.
All of those cases addressed phone taps, and as the Seventh
Circuit explained, “a tap is not placed in the telephone handset
itself; it is attached to the telephone line at some distance from
the handset.” United States v. Ramirez, 112 F.3d 849, 853 (7th
Cir. 1997); see also Olmstead v. United States, 277 U.S. 438,
464 (1928) (holding that a wiretap was not a search because
“[t]here was no entry of the houses or offices of the
defendants”), overruled in part by Katz v. United States, 389
U.S. 347 (1967). Whatever the merits of those decisions, they do
not address the issue before us.6
5
See United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006);
United States v. Ramirez, 112 F.3d 849, 852-53 (7th Cir. 1997);
United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996); United
States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992).
6
For reasons that elude us, the government also cites Dalia v. United
States, 441 U.S. 238, 251-54 (1979), which holds only that Title III
permits the surreptitious placement of a listening device on private
11
To the extent that there is uncertainty over the proper
interpretation of the statute, Rule 41 of the Federal Rules of
Criminal Procedure, which partially implements the statute, is
crystal clear. It states that “a magistrate judge with authority in
the district has authority to issue a warrant for a person or
property outside the district if the person or property is located
within the district when the warrant is issued but might move or
be moved outside the district before the warrant is executed.”
Fed. R. Crim. P. 41(b)(2) (emphasis added). So, therefore, we
have a warrant issued in our case which appears, on its face, to
be in violation of the rule (and the statute).
The government’s position regarding Rule 41 is, to put
it kindly, rather confusing. Government counsel largely ignores
the rule, but implicitly suggests that it is inconsistent with the
statute, which, if true, would have presented us with a rather
difficult problem. But as we have explained, Rule 41 and Title
III are consistent in that they impose the same geographic
limitations on warrants to install listening devices.
The government also argues that territorial jurisdiction
is not a “core concern” of Title III, and that therefore
suppression is not the appropriate remedy for the violation in
this case. But, as we explained supra, the Supreme Court has
repeatedly made clear that the “core concerns” test is a
construction of the term “unlawfully intercepted” in paragraph
(i), not paragraph (ii). Even if we thought that an inquiry into the
core concerns of the statute were permitted under paragraph (ii),
we would, nevertheless, agree with the Fifth Circuit, which
recently held that territorial jurisdiction is a core concern of
property. It has nothing to do with the authorizing judge’s
geographical jurisdiction.
12
Title III. United States v. North, 728 F.3d 429, 437 (5th Cir.
2013).
Nor do we think that the jurisdictional flaw in the
warrant can be excused as a “technical defect.” It is true that
several of our sister circuits have declined to hold paragraph (ii)
violated because of technical errors. See, e.g., United States v.
Moore, 41 F.3d 370, 375 (8th Cir. 1994) (inadvertent failure of
magistrate to sign order is a “mere technical defect” not
warranting suppression); United States v. Traitz, 871 F.2d 368,
379 (3d Cir. 1989) (inadvertent omission of one page of an order
does not render the order insufficient on its face where the order
still meets all statutory requirements).7 Even if we assume that
an imperfect authorizing order could be thought facially
sufficient, we do not see how a blatant disregard of a district
judge’s jurisdictional limitation can be regarded as only
“technical.”
The government’s last refuge is a plea that we recognize
the government’s “good faith” and, therefore, import a good
faith exception to Title III’s remedy of suppression. The
Supreme Court has done so regarding Fourth Amendment
violations, see United States v. Leon, 468 U.S. 897, 911 (1984),
where there is no explicit textual remedy. Here, of course,
Congress has spoken: The statute requires suppression of
evidence gathered pursuant to a facially insufficient warrant. See
United States v. Rice, 478 F.3d 704, 711 (6th Cir. 2007). In any
event, it is quite a stretch to label the government’s actions in
seeking a warrant so clearly in violation of Rule 41 as motivated
by “good faith.”
7
We express no opinion on whether the defects in either of these cases
should be viewed as merely technical.
13
As we noted, supra, we think the failure to preclude the
truck bug evidence was not only error – it was plain error. See
In re Sealed Case, 573 F.3d at 851. Plain, because the language
of Rule 41 is quite clear; indeed, the government’s reluctance to
come to grips with the language is, in that respect, quite
revealing. And as we have explained, the statutory remedy is
automatic. The last factor to be considered in plain error analysis
– whether the error is prejudicial, and whether it seriously
affected the “fairness, integrity, or public reputation of judicial
proceedings” – is in this case indisputable. United States v.
Venable, 269 F.3d 1086, 1089 (D.C. Cir. 2001). The truck bug
recordings were, in the words of the prosecuting attorney at trial,
some of the “most incriminating” and “most powerful” evidence
at trial, and there is a high likelihood that this evidence affected
the outcome. See United States v. Saro, 24 F.3d 283, 287 (D.C.
Cir. 1994). Accordingly, appellants’ convictions must be reversed.
* * * *
Appellants raise several additional arguments that would
be relevant, assuming there is a new trial. Glover claims he was
entitled to severance because Wright’s defense strategy was to
blame Glover; Wright’s lawyer was, in effect, a “second”
prosecutor” who actually told the jury Glover would “get what’s
coming to him.” Rule 14 of the Federal Rules of Criminal
Procedure does permit a district judge to sever if a defendant
appears to be prejudiced, but the question is left to the district
judge’s discretion in light of the “strong interests” in favor of
joint trials. See United States v. Celis, 608 F.3d 818, 844 (D.C.
Cir. 2009). And the Supreme Court has explicitly held that
severance is not required merely because one defendant accuses
another of committing the crime. See Zafiro v. United States,
506 U.S. 534, 539-41 (1993). (It is instead perhaps prejudicial
when damaging evidence is either admissible against only one
defendant or exculpatory evidence is available to only one
14
defendant. Id. at 539.) It follows, therefore, that the district
judge was well within his discretion in denying severance.
There remain two evidentiary issues. The district judge
refused to allow defense counsel to point out to the jury that two
persons with apparent knowledge of relevant events had not
been called as a witness. In other words, the trial judge
determined that appellants wished to make a “missing witness”
argument – asking the jury to infer that a missing witness would
have supported a party’s version of events. Such an argument is
only permitted after a showing that the one party (the
government here) has the unique ability to produce the witness,
a showing the defendants did not make. See United States v.
Pitts, 918 F.2d 197, 199 (D.C. Cir. 1990). Appellants argue that
they were not really seeking to make a missing witness
argument, instead only highlighting the lack of certain evidence.
Their preferred label does not change the substance of their
argument; it was a missing witness argument by another name.
Of course, this issue could be revisited if there is a new trial.
Perhaps more significant, Glover argues that the district
court erred in admitting evidence of his PCP and heroin dealings
as “inextricably intertwined” with evidence of the charged
cocaine conspiracy. The conversations recorded by the truck bug
did unquestionably include Glover describing plans to use
revenues from the PCP-heroin dealing to fund the cocaine
conspiracy, so we think they were legitimately described as
inextricably intertwined. Although the precise contours of the
inextricably intertwined doctrine are murky, see United States
v. Bowie, 232 F.3d 923, 927-28 (D.C. Cir. 2000), as to at least
these recorded conversations, we think the district court’s
conclusion was correct. But that evidence would no longer be
available at a new trial. Whether any equally probative evidence
of the PCP-heroin dealings would be admissible is not really
before us. If the government does attempt to introduce additional
15
“other crimes” evidence at a retrial, we encourage the district
court to address Rule 404(b) before applying the inextricably
intertwined doctrine, as there is a “danger that finding evidence
‘inextricably intertwined’ may too easily slip from analysis to
mere conclusion.” Id. at 928.
III.
For the foregoing reasons, we reverse appellants’
convictions and remand for a new trial.
So ordered.