United States v. Gordon

United States Court of Appeals
For the First Circuit
No. 15-2087
UNITED STATES OF AMERICA,
Appellee,
v.
DIMITRY GORDON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Torruella, Selya and Kayatta,
Circuit Judges.
Edward S. MacColl, with whom Thompson, MacColl & Bass, LLC,
P.A. was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Richard W. Murphy, Acting United States Attorney, and Margaret D.
McGaughey, Assistant United States Attorney, Appellate Chief, were
on brief, for appellee.
September 8, 2017
SELYA, Circuit Judge. Defendant-appellant Dimitry
Gordon strives to persuade us that the district court erred in
denying his motion to suppress wiretap evidence and/or in refusing
to hold one or more evidentiary hearings in connection therewith.
We are not convinced and, therefore, we affirm the challenged
orders (that is, the order denying the motion to suppress and the
orders denying the two requests for evidentiary hearings).
I. BACKGROUND
Around September of 2012, a joint task force spearheaded
by the federal Drug Enforcement Administration (DEA), and
including state and local law enforcement officers, began
investigating a drug-distribution ring centered in Lewiston,
Maine. This probe led investigators to identify Romelly Dastinot
and Jacques Victor as the likely leaders of the ring.1 The task
force came to believe that the two regularly pooled their resources
to buy drugs in bulk quantities in Boston and transport them to
Maine. Once the drugs arrived in Maine, the pair apparently
peddled them through separate distribution channels.
In the course of its investigation, the task force
obtained Dastinot's and Victor's telephone records. That trove of
1This appeal was consolidated for oral argument with an
appeal taken by Dastinot, which raised a narrower subset of the
issues advanced by the appellant. Dastinot's appeal, No. 16-1272,
will be resolved by means of a separate opinion.
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information yielded several text-message exchanges detailing drug
transactions.
In addition, the task force implemented a gallimaufry of
other investigative strategies. To cite one example, it executed
controlled buys from both Dastinot and Victor. Some of the
controlled buys implicated the appellant as a lower-level member
of the conspiracy, who sold drugs (either oxycodone pills or crack
cocaine) on Dastinot's behalf. To cite another example, the task
force partnered with confidential sources and turncoat members of
the drug ring.2
Despite its investigative efforts, the task force was
unable to learn either the identity or specific location of the
drug ring's suppliers. Nor was the task force able to get a handle
on the drug ring's organizational structure. In hopes of catching
bigger fish, the government submitted a series of wiretap
applications to the district court between February and May of
2014, seeking to monitor a total of five telephones. Only three
of the target telephones, known as TT1, TT2, and TT5, are relevant
to this appeal (Dastinot used TT1 and TT5, while Victor used TT2).
2 The record reflects that the task force's investigation
involved no fewer than four confidential sources and that some
seven members of the drug ring cooperated with the government at
various stages of the investigation. For ease in exposition, we
do not distinguish between the confidential sources and the
turncoats but, rather, refer to all of them as cooperating sources.
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The appellant was identified as a target-subject of the wiretaps
even though his own telephone was never tapped.
A DEA agent, Joey Brown, prepared supporting affidavits
for the wiretap applications. All of these applications were
approved by the district court and renewed as needed. See 18
U.S.C. § 2518(5) (limiting wiretap authorization to thirty days).
In Agent Brown's first affidavit (dated February 24, 2014), he
spelled out investigative techniques that the task force had used
up to that point. For instance, investigators had worked
extensively with cooperating sources, executed controlled
purchases, analyzed telephone data (obtained through pen
registers, telephone toll records, historical text-message
records, and trap-and-trace devices), conducted physical
surveillance, examined public records, and used available subpoena
powers (both administrative and grand jury).
The affidavit identified the objectives of the wiretap
investigation as obtaining:
a. The identity of the sources of supply for
Dastinot and Victor, their locations, and the
manner in which they acquire[d] and
transport[ed] drugs to Maine and elsewhere for
distribution;
b. The precise roles of the Target Subjects
[including the appellant] in this drug
conspiracy and the methods being utilized by
the Target Subjects to distribute illegal
drugs;
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c. The identity of all persons receiving
drugs from Dastinot and Victor for further
distribution;
d. Identification of the site(s) being
utilized for the storage and concealment of
illegal drugs;
e. The existence, location and disposition of
proceeds (including currency, real estate,
motor vehicles, and personal property) derived
from the Target Subjects' involvement in drug
distribution;
f. The precise date(s), time(s) and
location(s) of shipments of illegal drugs
to/from this organization and the manner of
delivery.
The affidavit revealed that the task force had learned very little
about the drug ring's sources of supply, finances, organizational
structure, or the roles of its members.
According to Brown, the task force had mulled a number
of additional investigative strategies, but had rejected them as
either too risky or too unlikely to yield worthwhile results. In
this vein, the task force had decided against conducting more
aggressive physical surveillance, attempting to install cameras in
selected public locations, obtaining search warrants for known
drug-distribution venues, collecting target-subjects' trash,
widening the use of grand jury interviews, or attempting to
introduce undercover agents into the ring. Brown added that he
did not believe that further controlled purchases would yield more
information about the drug ring. Nor did he think that either
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approaching or arresting the target-subjects and asking them to
reveal their sources of supply was apt to prove fruitful.
Brown also noted that the task force had considered
obtaining cell-site location information for at least some of the
telephones. This option was rejected because "the range of error
in this type of data prevents narrowing down a precise residence
(especially in dense places like Boston and Lewiston)." What is
more, the location data are often several minutes behind the actual
location of the telephone. And location data alone, he reasoned,
whether from cell-site records or from vehicle trackers, would not
reveal the identity of the person with whom a target-subject meets
or the nature of the encounter.
Brown concluded that wiretapping was "the only available
technique that ha[d] a reasonable likelihood of securing the
evidence necessary to accomplish the goals of th[e]
investigation." His affidavit chronicled minimization procedures
that would be instituted if the wiretaps were approved. At the
outset, the monitors (the persons intercepting calls) would be
provided with a minimization memorandum, the wiretap applications,
and the authorizing orders. In pertinent part, the memorandum
instructed that monitors should stop listening to conversations
that did not relate to the criminal enterprise (though they could
periodically check on seemingly innocuous discussions to see if
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the conversation had shifted). Each monitor would sign a form
indicating that he had read the documents.
After the district court granted the first of the wiretap
applications, the task force set up a wire room to serve as a
central location for intercepting and monitoring calls. The room
was staffed from 8:00 a.m. to midnight, and any calls not monitored
by staff in real time were not recorded. Through the duration of
the wiretaps, the authorities intercepted approximately 23,000
completed calls and text messages, many of which were in Haitian
Creole (the language of choice for members of the drug ring).
Along the way, the government compiled and submitted periodic
statistical summaries to the district court.
Armed with, inter alia, the fruits of the wiretapping,
a federal grand jury sitting in the District of Maine indicted the
appellant and eleven codefendants. The indictment charged the
appellant with conspiracy to distribute and possess with intent to
distribute controlled substances, see 21 U.S.C. §§ 841(a)(1), 846,
and conspiracy to commit money laundering, see 18 U.S.C.
§ 1956(a)(1)(B)(i).
In due course, the appellant moved to suppress the
evidence obtained through the wiretaps and requested two kinds of
evidentiary hearings. First, he requested a general evidentiary
hearing as to the adequacy of the government's minimization
procedures. Second, he requested a Franks hearing on the ground
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that Brown's affidavits in support of the wiretap applications
included false statements. See Franks v. Delaware, 438 U.S. 154,
155-56 (1978).
The district court heard arguments on these motions on
January 28, 2015, but reserved decision. It later ordered the
government to submit additional information regarding the
statistical makeup of the intercepted conversations. In response,
the government submitted Brown's supplemental affidavit dated
February 13, 2015, which clarified and corrected the double-
counting of some intercepted calls and reported that 14% of the
calls lasting more than two minutes had been minimized in some
way.
After further briefing, the district court denied not
only the motion to suppress but also the twin requests for
evidentiary hearings. The appellant thereafter entered a
conditional guilty plea to the drug conspiracy count, see Fed. R.
Crim. P. 11(a)(2), preserving his right to appeal the denial of
both his motion to suppress and his related requests for
evidentiary hearings. The district court accepted the conditional
plea and subsequently sentenced the appellant to a 28-month term
of immurement. At the same time, the court dismissed the money
laundering charge. This timely appeal followed.
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II. THE MOTION TO SUPPRESS
Insisting that his motion to suppress the wiretap
evidence should have been granted, the appellant, ably
represented, attacks the wiretap orders on multiple fronts. We
start with his assertion that the orders were insufficiently
particular. We next proceed to his claims that wiretapping was
unnecessary and that, in all events, the government failed
adequately to minimize its intrusion into the target-subjects'
privacy rights.
Familiar standards of review guide our analysis. When
assaying a district court's ruling on a motion to suppress wiretap
evidence, we review its factual findings for clear error and its
legal conclusions de novo. See United States v. Lyons, 740 F.3d
702, 720-21 (1st Cir. 2014). The key question is whether the
wiretap application and its supporting affidavits were "minimally
adequate" to support the issuance of the wiretap order. United
States v. Santana, 342 F.3d 60, 65 (1st Cir. 2003) (quoting United
States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003)).
A. Particularity.
With the passage of Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 (Title III), see 18 U.S.C.
§§ 2510-2522, Congress authorized wiretapping as needed to allow
effective investigation of criminal activities while at the same
time ensuring meaningful judicial supervision and requiring
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specific procedures to safeguard privacy rights. See United States
v. Rodrigues, 850 F.3d 1, 6 (1st Cir. 2017); see also Gelbard v.
United States, 408 U.S. 41, 48 (1972) (describing Title III as
"(1) protecting the privacy of wire and oral communications, and
(2) delineating on a uniform basis the circumstances and conditions
under which the interception of wire and oral communications may
be authorized" (quoting S. Rep. No. 1097, at 66 (1968), as
reprinted in 1968 U.S.C.C.A.N. 2112, 2153)). Among other things,
Title III provides for the suppression of wiretap evidence on the
ground that "the order of authorization or approval under which it
was intercepted [was] insufficient on its face." 18 U.S.C.
§ 2518(10)(a)(ii).
Here, the appellant complains that the wiretap orders
failed to satisfy Title III's particularity requirements in three
respects. He submits that they did not include "a particular
description of the type of communication sought to be intercepted,"
id. § 2518(4)(c); that they did not include "a statement of the
particular offense to which [the communication] relates," id.; and
that they did not include a sufficient description of "the agency
authorized to intercept the communications," id. § 2518(4)(d). We
examine these plaints sequentially.
The appellant's remonstrance regarding the type of
communication sought focuses on the fact that the orders were not
limited to existing telephone numbers but, rather, extended to
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numbers "subsequently assigned to or used by the instruments
bearing the same" electronic serial number (ESN) or International
Mobile Equipment Identity (IMEI) number as the original tapped
telephone. For example, if Dastinot changed the ten-digit
telephone number assigned to a particular cellular telephone, the
order would automatically cover the new ten-digit number, and the
task force would not have to seek a further order every time that
number changed. Relatedly, the orders authorized the interception
of "background conversations intercepted in the vicinity of the
target telephones while the telephones are off the hook or
otherwise in use." In the appellant's view, extending the
authorizations in this manner rendered them impermissibly broad.
These arguments comprise more cry than wool. Brown's
affidavits set forth convincing reasons for tracking telephones by
ESN or IMEI number: drug traffickers change telephone numbers
frequently in an attempt to avoid detection and, in the bargain,
tend not to associate their names with telephone numbers. To cinch
the matter, the orders were specific in that they restricted
interception to particular serial numbers. We can think of no
good reason why Title III's particularity requirement should be
read as limiting a wiretap to a specific telephone number rather
than a specific ESN or IMEI number reasonably believed to be used
by the target. Cf. United States v. Oliva, 705 F.3d 390, 400-01
(9th Cir. 2012) (holding, with respect to 18 U.S.C. § 2581(4)(b),
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that order authorizing wiretap by reference to specific serial
number was sufficiently descriptive to satisfy Title III's mandate
that order describe "the nature and location of the communications
facilities").
The appellant's argument regarding background
conversations overheard through an off-the-hook telephone is
equally unavailing. This language is standard fare in wiretap
applications, see id. at 397 n.7, and its inclusion does not make
the wiretap orders impermissibly broad. After all, describing
potential types of communications to be intercepted appears fully
consistent with Title III's directive to define the sought-after
communications with particularity. And, finally, it is doubtful
whether Title III even applies to background conversations. Cf.
United States v. Couser, 732 F.2d 1207, 1210 (4th Cir. 1984)
(questioning whether "plain view" doctrine creates an exception to
Title III requirements for background conversations). See
generally United States v. Williams, 827 F.3d 1134, 1153 (D.C.
Cir. 2016) (assuming, arguendo, that overheard conversations
implicate Title III's requirement to name target individuals but
noting lack of authority for the proposition), cert. denied, 137
S. Ct. 706 (2017).
Next, the appellant posits that the wiretap orders are
invalid for failing to identify "the particular offense to which"
the sought-after communications relate. 18 U.S.C. § 2518(4)(c).
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The critical fault, he says, is that the orders simply cite
statutory sections without providing any broader context. But the
appellant sets the bar too high: the enumeration of specific
criminal statutes itself serves to identify particular offenses
and, thus, satisfies this facet of the particularity requirement.
See United States v. Spillone, 879 F.2d 514, 517-18 (9th Cir.
1989).
The overall structure of the statute buttresses this
view: an earlier subsection — section 2518(3)(a) — uses the term
"particular offense" in reference to "a particular offense
enumerated in section 2516." Section 2516, in turn, lists criminal
offenses, some by statutory citation and others by even broader
descriptions, such as "the manufacture, importation, receiving,
concealment, buying, selling, or otherwise dealing in narcotic
drugs, marihuana, or other dangerous drugs, punishable under any
law of the United States." 18 U.S.C. § 2516(1)(e). In light of
this provision, abecedarian principles of statutory construction
lead to the conclusion that the "particular offense" requirement
in section 2518(4)(c) is satisfied when a wiretap order simply
lists the charging statute. See United States v. Nippon Paper
Indus. Co., 109 F.3d 1, 4-5 (1st Cir. 1997) ("It is a fundamental
interpretive principle that identical words or terms used in
different parts of the same act are intended to have the same
meaning. This principle . . . operates not only when particular
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phrases appear in different sections of the same act, but also
when they appear in different paragraphs or sentences of a single
section." (citations omitted)).
The appellant has one last shot in his particularity
sling. Title III requires a wiretap order to specify "the agency
authorized to intercept the communications." 18 U.S.C.
§ 2518(4)(d). The appellant assails the description of the
authorized agency contained in the wiretap orders as virtually
"unbounded."
By their terms, the orders authorize "special agents of
the United States Drug Enforcement Administration and other
investigative and law enforcement officers, and civilian monitors
operating under a contract with the Government" to conduct the
wiretapping. The appellant correctly notes the looseness of this
language: phrases such as "other investigative and law enforcement
officers" are not moored to any particular agency. Even so, the
orders must be read in the context of Brown's affidavits and the
wiretap applications, and those documents leave little doubt that
the DEA was the agency involved.
For one thing, Brown's affidavits made pellucid the
DEA's pervasive involvement in the case. For another thing, the
wiretap orders specified that the wiretapping would "be executed
at a listening post maintained at the United States Drug
Enforcement Administration Resident Office, in Portland, Maine."
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They also described a cooperative effort between Verizon Wireless
and the DEA. Given a practical, commonsense reading, we hold that
the wiretap orders were sufficiently particular in describing the
DEA as "the agency authorized" to conduct the wiretapping.
Even if we assume, for argument's sake, that inclusion
of the loose language challenged by the appellant departed from
the statutory "agency identification" requirement, the violation
would not demand suppression. Not every blemish in an order of
authorization demands suppression: such a remedy is required only
when there is a failure to satisfy "statutory requirements that
directly and substantially implement the congressional intention
to limit" wiretaps. United States v. Giordano, 416 U.S. 505, 527
(1974); see United States v. Cunningham, 113 F.3d 289, 293-94 (1st
Cir. 1997). This principle recognizes that suppression is "strong
medicine," which should not be profligately dispensed. United
States v. Adams, 740 F.3d 40, 43 (1st Cir. 2014).
The putative violation of the "agency identification"
requirement is more a matter of form than of substance. That
lapse, though regrettable, cannot plausibly be said to directly or
substantially weaken the protections that Congress sought to craft
in connection with wiretapping. See United States v. López, 300
F.3d 46, 55-56 (1st Cir. 2002) (holding that "government must
disclose, as a part of its application for a wiretap warrant, any
intention to utilize the services of civilian monitors in the
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execution of the warrant" but concluding that omission did not
require suppression). It follows that suppression would be
manifestly disproportionate to the putative violation and, thus,
should not be required.
That ends this aspect of the matter. We reject the
appellant's importunings and hold that the wiretap orders were not
so lacking in particularity as to demand suppression.
B. Necessity.
In investigating criminal activity, "wiretapping is to
be distinctly the exception — not the rule." United States v.
Hoffman, 832 F.2d 1299, 1307 (1st Cir. 1987). To balance "privacy
and the rights of the individual," Title III requires the
government to establish necessity as a prerequisite for obtaining
a wiretap order. Id. Seizing on this requirement, the appellant
asserts that the government failed to establish that it was
necessary to resort to wiretapping.
In the Title III lexicon, necessity is not an absolute.
Rather, it must be viewed through the lens of what is pragmatic
and achievable in the real world. See United States v. Uribe, 890
F.2d 554, 556 (1st Cir. 1989) (explaining that "Title III demands
a practical, commonsense approach to exploration of investigatory
avenues"). It is a relative term — and it is context-specific.
To demonstrate necessity, a wiretap application must include "a
full and complete statement as to whether or not other
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investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too
dangerous." 18 U.S.C. § 2518(1)(c). Such a showing
"should demonstrate that the government has made a reasonable,
good faith effort to run the gamut of normal investigative
procedures before resorting to means so intrusive as electronic
interception of phone calls." United States v. Martinez, 452 F.3d
1, 4 (1st Cir. 2006) (quoting Villarman-Oviedo, 325 F.3d at 9).
This does not mean, though, that the government is
"required to show that other investigatory methods have been
completely unsuccessful." United States v. Rivera-Rosario, 300
F.3d 1, 19 (1st Cir. 2002). Nor does it mean that "the government
[is] forced to run outlandish risks or to exhaust every conceivable
alternative before resorting to electronic surveillance." Id.;
accord Santana, 342 F.3d at 65.
On appeal, our task is not to undertake a de novo
determination of necessity as if we were deciding whether to issue
the wiretap order. See United States v. Ashley, 876 F.2d 1069,
1074 (1st Cir. 1989); accord Rodrigues, 850 F.3d at 9. We need
only "decide if the facts set forth in the application were
minimally adequate to support the determination that was made."
Ashley, 876 F.2d at 1074 (quoting United States v. Scibelli, 549
F.2d 222, 226 (1st Cir. 1977)). In evaluating whether the
government has crossed this threshold, we have not hesitated to
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uphold wiretap orders based on an agent's plausible, good faith
"assert[ion of] a well-founded belief that the techniques already
employed during the course of the investigation had failed to
establish the identity of conspirators, sources of drug supply, or
the location of drug proceeds." Rodrigues, 850 F.3d at 10
(collecting cases). As we explain below, that is exactly the type
of assertion that the government proffered here.
Brown's affidavits related that it was not until early
2014 — approximately a year and a half into the investigation —
that the government turned to wiretaps. At that point, the task
force already had employed a myriad of investigative techniques,
including the use of confidential sources, physical surveillance,
controlled buys, analysis of telephone data and public records,
and the issuance of subpoenas (both administrative subpoenas and
grand jury subpoenas). Extensive use of these tools had left the
agents in the dark about important matters such as the drug ring's
sources of supply, its organizational structure, and its finances.
By the same token, Brown spelled out plausible reasons for not
employing certain other strategies. The task force did not want
to attempt more intensive use of undercover agents or cooperating
sources for fear of arousing suspicion.3 For much the same reasons,
3The maxim "once bitten, twice shy" was in play: Brown was
concerned that at least one confidential source already had been
outed because the source had been sold fake (or extremely low-
quality) heroin in executing a controlled buy.
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the task force did not recommend either more aggressive physical
surveillance or trying to install cameras. Further surveillance
of public spaces would be ineffectual, Brown reasoned, because the
vast majority of this drug ring's crimes occurred indoors.
To be sure, the task force had considered simply
revealing its evidence, at least in part, to selected
coconspirators and attempting to elicit their cooperation. This
tactic was not pursued because the task force reasonably concluded
that the possibilities of success were slim and the risks of
failure were great.
Other methods considered but left by the wayside
included cell-site location data and vehicle tracking. Brown
plausibly explained that the "range of error" of the cell-site
data provided by Verizon Wireless prevented that data from being
very useful, "especially in dense places like Boston and Lewiston."
At any rate, the data would not be able to "narrow[] down a precise
residence" in such areas. With respect to multi-unit buildings
(common in Boston and Lewiston), targeting a particular building
through location data would not serve to identify individual
conspirators. More critically, neither the cell-site data nor
vehicle tracking could reveal the purpose for the conspirator's
movements, the identity of the persons with whom they were meeting,
or the purposes of those meetings. To obtain this kind of
intelligence, Brown believed that wiretapping was needed.
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The short of it is that Brown's affidavits, read as a
whole, show that the task force carried out a long-lasting, wide-
ranging, good-faith investigation that ran the gamut of standard
investigative techniques. Those affidavits reflect a careful and
rational balancing of the utility of various investigatory tools
against the possibility of prematurely alerting the drug ring to
the probe. The foundation laid in Brown's affidavits substantiates
a plausible judgment that the investigation had reached a point at
which wiretapping was reasonably necessary. We conclude,
therefore, that the wiretap applications were more than minimally
adequate to justify the wiretap orders. It follows that the
appellant's necessity challenge fails.
C. Minimization.
Title III warns monitors to minimize irrelevant calls.
See 18 U.S.C. § 2518(5) (declaring that monitoring must "be
conducted in such a way as to minimize the interception of
communications not otherwise subject to interception"); see also
Scott v. United States, 436 U.S. 128, 140 (1978) (explaining that
Title III "instructs the agents to conduct the surveillance in
such a manner as to 'minimize' the interception of [irrelevant]
conversations"). Consistent with this admonition, the wiretap
orders directed the monitors to stop listening and/or recording
when it became apparent that a conversation was not related to the
criminal investigation. The minimization memorandum distributed
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to the monitors contained a similar warning. Even so, the monitors
were permitted to check periodically on any given conversation to
ascertain whether the discussion had shifted. The appellant
insists that the government failed to comply with these
requirements.
Blanket suppression of wiretap evidence is a "drastic"
remedy, which should be reserved for the most "egregious" cases.
Hoffman, 832 F.2d at 1309. A minimization violation often can be
cured through a less draconian remedy: suppression of only those
calls that the court determines should have been minimized. See
id. Here, however, the appellant has not identified even a single
call that he contends should have been minimized, but was not.4
Thus, the relevant question reduces to whether the government's
handling of its minimization responsibilities was so egregious as
to support a blanket exclusion of the evidence obtained through
wiretapping.
As a general matter, whether the government fails
adequately to minimize intercepted conversations "depend[s] on the
facts and circumstances of each case." Scott, 436 U.S. at 140.
In evaluating the facts and circumstances of a specific case and
4Indeed, the appellant has not identified even a single
failure to minimize that prejudiced his rights. The absence of
any such prejudice may, in itself, warrant the denial of his motion
to suppress. See López, 300 F.3d at 58 (upholding denial of
suppression where defendant was not prejudiced by two intercepted
non-pertinent calls).
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the government's fealty to Title III's minimization requirements,
a reviewing court must "look at several factors, including: 1) the
nature and complexity of the suspected crimes; 2) the thoroughness
of the government's precautions to bring about minimization; and
3) the degree of judicial supervision over the surveillance
process." López, 300 F.3d at 57.
In this instance, the first two factors weigh heavily in
the government's favor. The sprawling operations of the drug ring
and the complexity of the suspected crimes are manifest. In cases
like this one, involving drug conspiracies of indeterminate
proportions, "the need to allow latitude to eavesdroppers is close
to its zenith." Hoffman, 832 F.2d at 1308.
To add to the complexity, the appellant and his
confederates frequently spoke in Haitian Creole and employed code
names on many occasions. The use of "codes and specialized jargon"
furnish an added reason for affording monitors leeway because, in
such cases, more context is needed to determine whether a
conversation is related to the suspected crimes. Uribe, 890 F.2d
at 557. The use of a foreign language itself supplies an extra
layer of complexity. Cf. United States v. David, 940 F.2d 722,
730 (1st Cir. 1991) (explaining that when intercepted
communications are in a foreign language and a real-time translator
is not available, minimization may be accomplished as soon as
practicable after the fact).
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Importantly, the scope of the conspiracy was unknown at
the time that the wiretaps were authorized. Indeed, an animating
purpose behind the wiretap applications was to flesh out the
structure of the organization and to identify the drug ring's
sources of supply. These uncertainties also counsel in favor of
granting wider latitude to the monitors. See, e.g., Hoffman, 832
F.2d at 1308 (allowing broad latitude when "investigation is
focused largely on blueprinting the shape of the conspiratorial
wheel and identifying the spokes radiating from its hub").
Here, moreover, the thoroughness of the government's
precautions to bring about minimization is unquestioned. The
record reflects that the government established a regime of
adequate precautions designed to ensure that monitors were
appropriately minimizing irrelevant conversations. All monitors
had to confirm in writing that they had read the wiretap
applications and supporting affidavits, the wiretap orders, and an
instructional memorandum detailing proper minimization procedures.
These documents were posted in the monitors' workplace for easy
reference. Prosecutors also met with government agents to brief
them on minimization standards.
The third factor is not quite as clear-cut; in the end,
though, we think that the record indicates sufficient judicial
supervision. See Uribe, 890 F.2d at 558. To begin, the court
took care, in crafting the wiretap orders, to detail the
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minimization procedures already discussed. In addition, the
government was required to submit statistical reports to the court
on an ongoing basis.
It is the contents of these statistical reports that
bring us to the crux of the appellant's minimization argument.
When the appellant questioned the accuracy of some of the proffered
numbers in arguing for suppression in the court below — contending,
for example, that the reports listed as minimized calls that were
not monitored and text messages that were not minimized — the
district court ordered the government to submit additional
explanations and more detailed data.
Before us, the appellant focuses on the percentage of
non-pertinent calls that were not minimized in any way (98%,
according to his calculations). Such percentages, though, tell us
very little because many calls presumably end before the listener
can determine their pertinence. Courts therefore tend to look at
the relative percentage of calls minimized out of those calls
lasting more than two minutes. See, e.g., United States v. De La
Cruz Suarez, 601 F.3d 1202, 1215 (11th Cir. 2010); United States
v. Yarbrough, 527 F.3d 1092, 1098 (10th Cir. 2008); United States
v. Rivera, 527 F.3d 891, 905 (9th Cir. 2008); United States v.
Dumes, 313 F.3d 372, 380 (7th Cir. 2002). Here, the government's
data show that there were 1616 such calls, out of which 667 were
determined to be not pertinent; 229 calls were minimized, likely
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meaning that over two-thirds of non-pertinent calls in excess of
two minutes were not minimized. Although the fact that over 200
calls were minimized shows that there were real minimization
efforts undertaken, the percentage of non-pertinent calls not
minimized would seem to warrant some explanation.
The record points to such an explanation — at least
enough of an explanation for us to find that the district court's
ruling was not unreasonable and, thus, to justify upholding it.
As Brown noted, many calls were in Haitian Creole and/or coded
parlance, requiring either the use of translators or other
assistants. It is eminently reasonable to conclude that
determining the lack of pertinence of such calls would take much
longer than usual.
Tellingly, there is no evidence of a slew of examples of
calls that plainly should have been minimized in less than two
minutes, but were not. Through we do not suggest that defense
counsel need have reviewed hundreds of calls, we make the more
limited point that if the minimization process had not been an
"honest effort," United States v. Charles, 213 F.3d 10, 22 (1st
Cir. 2000), it should have been easy to find quite a few examples
of non-minimized calls that obviously should have been minimized.
Nor is there any other sign of either a less-than-serious effort
on the part of the government to comply or a less-than-serious
degree of supervision by the district court such as would lead us
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to conclude that the court abused its considerable discretion.
Consequently, we decline the appellant's invitation to hold that
the failure to minimize more irrelevant calls caused a "taint upon
the investigation as a whole." Hoffman, 832 F.2d at 1307.
Although we uphold the district court's ruling that
suppression was not required due to minimization deficiencies, we
note that the appellant was at a disadvantage in manipulating the
wiretap data. The government produced the logs for more than
20,000 telephone calls and text messages in the form of 10,000-
plus pages in portable document format (PDF). Converting the
10,000 pages of PDFs into a workable spreadsheet would require
inordinate time, effort, and resources. The government had
available to it, and most likely should have produced the data in,
a more serviceable format.5 The appellant, though, merely
mentioned the government's failure to provide the material in an
electronically sortable format in his motion to suppress; he did
not identify this failure either as a ground for his motion or as
5The record discloses that the government was able to run
reports, sort, and otherwise manipulate the data using a program
called VoiceBox. When queried at oral argument in this court, the
government offered no explanation as to why it could not have
produced for the appellant a spreadsheet embodying the same
functionality as it enjoyed by means of the VoiceBox program. But
cf. United States v. Briggs, No. 10-CR-184S, 2012 WL 5866574, at
*2 (W.D.N.Y. Nov. 16, 2012) (discussing limitations of VoiceBox
and finding disclosure obligations satisfied with searchable PDFs
rather than Excel-style spreadsheets because of data corruption
concerns).
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a basis for a continuance. Nor did he raise any issue concerning
the government's failure to produce materials in an electronically
sortable format in his briefs on appeal. Consequently, we do not
pursue this point. See United States v. Iwuala, 789 F.3d 1, 7
(1st Cir. 2015) (explaining that arguments not made in opening
appellate brief are deemed waived), cert. denied, 136 S. Ct. 913(2016); United States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992)
(explaining that arguments not made in the district court are
deemed waived).
III. THE EVIDENTIARY HEARING REQUESTS
We end our journey by examining the appellant's twin
requests for evidentiary hearings — his request for a general
evidentiary hearing on his failure-to-minimize argument, and a
Franks hearing to appraise what he alleges to be false statements
in Brown's affidavits. We discuss these hearing requests
separately.
A. General Evidentiary Hearing.
No criminal defendant has "a presumptive right to [a
general] evidentiary hearing on a motion to suppress." United
States v. D'Andrea, 648 F.3d 1, 5 (1st Cir. 2011). Rather, a
general evidentiary hearing is only warranted if the party seeking
suppression "makes a sufficient threshold showing that material
facts are in doubt or dispute, and that such facts cannot reliably
be resolved on a paper record." Id. (quoting United States v.
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Staula, 80 F.3d 596, 603 (1st Cir. 1996)). When all is said and
done, "the defendant must show that there are factual disputes
which, if resolved in his favor, would entitle him to the requested
relief." Staula, 80 F.3d at 603. "The district court has
considerable discretion in determining the need for, and the
utility of, evidentiary hearings, and we will reverse the court's
denial of an evidentiary hearing in respect to a motion in a
criminal case only for manifest abuse of that discretion." Id.In the case at hand, the appellant alleges that he
presented a colorable, fact-intensive claim as to whether the
government appropriately minimized his communications. That
claim, he says, could only be resolved after an evidentiary
hearing. We do not agree.
The district court was adequately apprised of the facts
relating to minimization through the parties' filings,
particularly after the government furnished supplemental
information (at the court's direction) explaining its minimization
tallies more thoroughly. The Supreme Court has noted the
"necessarily ad hoc nature" of minimization determinations and has
emphasized the need for flexibility in judicial oversight. Scott,
436 U.S. at 139. In the end, whether the government has engaged
in adequate minimization is quintessentially a judgment call, and
the court below had sufficient facts before it to make an informed
decision in that regard. We conclude, therefore, that the district
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court did not abuse its wide discretion in declining to hold a
general evidentiary hearing to delve further into the minimization
issue.
B. Franks Hearing.
This leaves the appellant's request for a Franks
hearing. To obtain a Franks hearing, a defendant must make "a
substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and [that] the
allegedly false statement is necessary to the finding of probable
cause." 438 U.S. at 155-56. "In considering a district court's
decision to deny a Franks hearing, we review factual determinations
for clear error and the probable cause determination de novo."
United States v. Arias, 848 F.3d 504, 511 (1st Cir. 2017); see
United States v. Tanguay, 787 F.3d 44, 48-50 (1st Cir. 2015)
(reviewing de novo district court's probable cause analysis in
connection with Franks hearing).
Here, the appellant alleges that Brown's affidavits
contained false statements with respect to the existence of
probable cause vis-à-vis money laundering, the efficacy of cell-
site location data, and the likelihood that wiretapping would allow
the task force to identify assets of the conspiracy and the precise
roles of the individuals involved.
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The statements to which the appellant adverts, though,
are as much matters of opinion as matters of fact, and the
appellant has made no convincing showing that Brown knew the
statements were false, yet nonetheless included them in his
affidavits.
We add, moreover, that all of the challenged statements
appear to have had a reasonable basis in fact. With respect to
the money-laundering statements, Brown did not need to have
probable cause to believe that the appellant himself was engaging
in money laundering. He only needed probable cause to believe
that some members of the conspiracy were so engaged. The record
adequately evinces that Brown had probable cause to believe that
some members of the drug ring were engaging in money laundering;
after all, Brown's affidavits presented a detailed showing of
repeated buying and selling of drugs, which gave rise to a
commonsense inference that the members of the drug ring must have
been participating in some kind of scheme to protect and launder
their profits.
As to the cell-site location data, the appellant did not
proffer enough facts to demonstrate that Brown's statements were
false, much less knowingly so. While the appellant's brief relies
heavily on a document submitted to the district court (a Verizon
Wireless publication for law enforcement officers), the district
court took this document into account, see United States v.
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Dastinot, No. 2:14-CR-69, 2015 WL 1292611, at *6 (D. Me. Mar. 23,
2015), concluding (reasonably, we think) that it did not contradict
Brown's statements that the location data were neither
sufficiently accurate nor sufficiently particularized to enable
agents to pinpoint a specific residence, especially in densely
populated areas.
We need not linger long over the appellant's allegations
that Brown either dissembled or made statements in reckless
disregard of the truth when he stated that the task force hoped to
learn through the wiretaps about the precise roles of conspirators
and the whereabouts of the drug ring's assets. In support, the
appellant suggests that these goals were too broad to be reasonably
achievable. This contention does not withstand scrutiny.
The goals of identifying a drug conspiracy's
organizational structure (at least in rough terms) and locating
its assets are achievable in some measurable sense. Intercepted
conversations might well give clear indications of the drug ring's
hierarchy, and investigators — following up on information gleaned
from intercepts — might well locate cash, inventory, real estate
holdings, or other items of value. To say that these statements
of aspirational goals were either intentionally false or made in
reckless disregard of the truth is simply a bridge too far. We
have approved similarly broad goals in other wiretap cases, see,
e.g., Martinez, 452 F.3d at 6; Villarman-Oviedo, 325 F.3d at 10,
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and Brown could not be faulted for the description of goals
contained in his affidavits.
To say more would be to paint the lily. We hold, without
serious question, that the district court did not commit reversible
error in refusing to convene either a general evidentiary hearing
or a Franks hearing.
IV. CONCLUSION
We need go no further. For the reasons elucidated above,
the orders of the district court are
Affirmed.
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