United States v. Scurry

UNrrED sTATEs msTmcT comm F I L E D
FoR THE 1)1sTR1C'r oF coLUMB1A AUG 1 I] 2012
Clerk, U.S District 8. Bankruptcy
g Courts for the District of Co|umbia
UNITED STATES OF AMERICA )
)
v. ) Crirninal Case N0. 10-310 (RCL)
)
ROBERT DION SAVOY, et al., )
Defendants. )
)
)
MEMORANDUM AND ORDER
Before the Court are Motions to suppress evidence obtained from the g0vernment’s
interceptions of wire communications made by defendants Eric Scurry [59], Terrence Hudson
[77], Robert Savoy [90], Jerome johnson [105], and James Brown [108]. Upon consideration of
the Motions to suppress, the govemrnent’s opposition [109], Brown’s pro se Elings [123-1, 156~
l], Savoy’s pro se filings [158, 178, l83, 184], the govemment’s response to Brown and Savoy’s
pro se filings [182], the entire record in this case, and the applicable law, the Court will DENY
defendants’ Motions. The Court will explain its reasoning in the analysis that follows.
I. BACKGROUND
In 2009, prompted by renewed violence in the 4200 block of Fourth Street, S.E.,
Washington, D.C., the Federal Bureau of Investigation’s Safe Streets Task Force began
investigating the cocaine and crack dealers in that area. Agents and detectives introduced a
confidential informant into the area, who made a series of controlled purchases of crack cocaine
from Eric Scurry from November 2009 to March 2010. Among the investigative techniques
employed by the task force officers was the use of wiretaps and electronic surveillance Judge
Kennedy approved the agents’ applications to intercept the following cellular telephone wire
communications: (l) Eric Scurry, telephone number 202-230-7790, from April 2, 2010 to May l,
2010; (2) Eric Scurry, telephone number 202-230-7790, from May 2, 2010 to May 31, 20l0; (3)
Terrence Hudson, telephone numbers 301~367-6175 and 57l-50l-353l, from June l4, 2010 to
July l3, 2010; (4) Robert Savoy, telephone numbers 202»609-4333 and 301-379-4379, from July
23, 2010 to August 21, 20l0; and (5) Jerome Johnson, telephone number 240-246-4443, from
September 13, 2010 to October l2, 2010.
The government first received authorization to intercept Sourry’s communications.
According to the govemment, the intercepted communications from Sourry’s cellular telephone
established that he and Nathan Robinson were distributors of cocaine base in the 4200 block of
Fourth Street, S.E. in Washington, D.C. On the basis of those communications, the government
received authorization to intercept the communications of one of Sourry’s suppliers, Hudson.
According to the govemment, the interception of Hudson’s communications established that he
was also a distributor of cocaine base. This provided the necessary evidentiary foundation to
receive authorization to intercept the communications of one of Hudson’s primary suppliers,
Savoy. The government says that the interception of Savoy’s communications established that
he purchased kilograms of cocaine and then redistributed both powder cocaine and cocaine base
to others, including Brown. Savoy’s intercepted communications also established that Savoy
collaborated with Brown to purchase significant amounts of cocaine and that Brown cooked that
powder cocaine into crack cocaine, according to the govemment, On the basis of evidence
collected from Savoy’s intercepted communications, the government received authorization to
intercept the communications of one of Savoy’s primary suppliers, Johnson. According to the
govemment, Johnson’s intercepted communications and Savoy’s intercepted communications
established that Johnson supplied Savoy with kilograms of cocaine.
Based on the evidence generated during this investigation, a grand jury issued two
indictments on November 29, 2010. The first was against Robert Savoy and Terrence Hudson,
charging them both with one count of Conspiracy to Distribute and Possess with Intent to
Distribute 500 Grams or More of Cocaine and 28 Grams or More of Cocaine Base, in violation
of 21 U.S.C. § 846, and charging each with one count of Using, Carrying and Possessing a
Firearm During a Drug Trafficking 0ffense, in violation of 18 U.S.C. § 924(¢). The second
indictment was against Nathan Robinson, charging him with Possession with Intent to Distribute
28 Grams or More of Cocaine Base, in violation of 21 U.S.C. § 841. On December 15, 2010, the
grand jury issued a superseding indictment, combining the two cases, adding Jerome Johnson,
Eric Scurry, and Keena Scurry as defendants in the lead narcotics conspiracy count, and
increasing the charged narcotics conspiracy amount with respect to cocaine base from 28 grams
or more to 280 grams or more. In September 201 1, the grand jury issued a second superseding
indictment adding J ames Brown as a defendant to the lead narcotics conspiracy count,
In their motions, Scurry, Hudson, and Savoy argue that the affidavits in support of the
govemment’s application for interception of communications on each of their respective
telephones did not establish probable cause and did not satisfy the necessity requirements of 18
U.S.C. § 2518(3)(c). Scurry also challenges the affidavits on the basis that they do not meet the
"rninimization" requirements under Title II1. Additionally, Hudson argues that the interception
of his communications was not properly authorized. Finally, Savoy and Brown claim that the
interception of Savoy’s calls was not properly authorized, and argue that the government
effectively secured a series of "roving wiretaps" on the cellular phones from which calls were
intercepted but did so without receiving the high-level authorization required for such wiretaps
by 18 U.S.C. §2518(11).
II. LEGAL STANDARDS
A. Interception of Wire Communications
Tit1eIII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et
seq., permits a district court to approve an application for the interception of certain wire, oral, or
electronic communications. An order for the interception of wire or oral communications may
be issued upon a finding that:
(l) probable cause exists to believe that an individual has committed or is about to
commit one of certain enumerated offenses; (2) probable cause exists to believe
that particular communications concerning that offense will be obtained through
an interception; (3) normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried; and (4) probable
cause exists to believe that the communication facility sought to be wiretapped is
being used, or is about to be used, in connection with the commission of the
offenses.
United Stcztes v. Becton, 601 F.3d 588, 595 (D.C. Cir. 2010) (intemal quotations omitted), citing
Um``ted States v. Carter, 449 F.3d 1287, 1292 (D.C. Cir. 2006); see also 18 U.S.C. § 25l8(3).
B. Standing
An "aggrieved person"-any person "who was a party to any intercepted wire . . .
communication or [any] person against whom the interception was directed," 18 U.S.C. §
2510(l1)-may move to suppress the contents of the wire communication. Id. § 25l8(l)(a). In
order for a defendant to have standing to seek suppression of electronic surveillance evidence,
the surveillance must be "violative of his own Fourth Amendment right to be free of
unreasonable searches and Seizures." Alderman v. Um``led States, 394 U.S. 165, 176 (l969).
"[T]he prohibition against assertion of another’s rights normally would preclude an aggrieved
person from suppressing a conversation in which he did not participate." United States v. Scott,
504 F.2d 194, 197 n.5 (D.C. Cir. l974), a_@"’d, 436 U.S. 128 (1978). Under this standard, each
defendant has standing to challenge the interceptions of the communications from his own
telephone as well as conversations in which he was a participant that were intercepted during the
wiretap of another defendant’s telephone. However, a defendant does not have standing to
challenge a wiretap in which he was not intercepted or a conversation in which he did not
participate.
C. Probable Cause
18 U.S.C. § 2518(1)(b)(i) requires an application to intercept wire, oral, or electronic
communications to include “a full and complete statement of the facts and circumstances relied
upon by the applicant, to justify his belief that an order should be issued, including details as to
the particular offense that has been, is being, or is about to be committed."
D. Necessity
1n addition to a statement as to probable cause, 18 U.S.C. § 2518(1)(0) provides that each
application for an order authorizing a wiretap must contain "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." Similarly, prior to granting an
order authorizing a wiretap, an issuing judge must find, among other things, that "normal
investigative procedures have been tried and have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c). These prerequisites to a
wiretap are commonly known as the "necessity" requirement.
The purpose of the necessity requirement is to ensure that "wiretapping is not resorted to
in situations where traditional investigative techniques would suffice to expose the crime," and to
inform the issuing judge of the difficulties inherent in the use of traditional techniques. Um``ted
States v. Kahn, 415 U.S. 143, 153 n.l2 (1974). "This purpose can be achieved only by
giving close scrutiny to applications challenged for noncompliance and rejecting generalized and
conclusory statements that other investigative procedures would prove unsuccessful. The
Govemment need show, however, only that other techniques are impracticable under the
circumstances and that it would be unreasonable to require pursuit of those avenues of
investigation." Unz'zed Szazes v. Johnson, 696 F.2d 115, 123 (D.C. Cir. 1982) (intemal citations
and quotations omitted), Even though merely conclusory statements about necessity will not
suftice, "[s]ections of an affidavit framed in conclusory terminology . . . ‘cannot rationally be
separated from . . . preceding detailed descriptions of . . . investigative events."’ United States v.
Sobamowo, 892 F.Zd 90, 93 (D.C. Cir. l989) (quoting United States v. Williams, 580 F.2d 578,
589 (D.C. Cir. 1978)).
E. Minimization
The wiretapping statute also requires that "[e]very [wiretap] order and extension thereof
shall contain a provision that the authorization to intercept shall be executed as soon as
practicable [and] shall be conducted in such a way as to minimize the interception of
communications not otherwise subject to interception ...." 18 U.S.C. § 2518(5), This is
referred to as the "minimization requirement." Although "[t]he statute does not forbid the
interception of all nonrelevant conversations," the govemment must make reasonable efforts to
"minimize" the interception of such conversations." Scott v. United States, 436 U.S. 128, 139-
40 (1978). In reviewing the performance of law enforcement in conducting "minimization," the
court must assess the objective conduct of the monitors conducting surveillance, rather than their
subjective intent or lack of motive to actually minimize interception. Id. at 138-39. Before the
court can find that the govemment failed to comply with the minimization requirement, the
defendant must show that "some conversation was intercepted which clearly would not have
been intercepted had reasonable attempts at minimization been made." Scott, 516 F.2d 75l, 757
(D.C. Cir. 1975), ajj'"d, 436 U.S. 128 (l978). In short, "[w]hat the wiretapping statute forbids is
failure by the govemment to make reasonable efforts to minimize interceptions of non-pertinent
communications; consequently, a defendant must identify particular conversations so that the
govemment can explain their non-minimization." United States v. Carter, 449 F.3d 1287, 1295
(D.C. Cir. 2006).
ln analyzing a minimization challenge, the court must determine whether the govemment
made reasonable attempts at minimization. Such a determination of reasonableness depends on
the facts and circumstances of each case_"[b]ecause of the necessarily ad hoc nature of any
determination of reasonableness, there can be no inflexible rule of law which will decide ever
case." Scotl, 436 U.S. at 139. In determining whether the govemment properly minimized, it is
important to consider circumstantial factors, such as the number of short calls intercepted,
whether the surveillance target is part of a widespread conspiracy, what type of telephone line is
being monitored, at what point in the investigation the interception took place, the involvement
of one or more co-conspirators in the intercepted calls, and whether the conversation being
intercepted is ambiguous Id, at 140~42.
lII. ANALYSIS
A. Scurry’s Motion to Suppress Wiretap Evidence
Scurry argues that the affidavits in support of the applications to intercept his wire
communications did not establish the requisite probable cause and did not meet the necessity
requirement imposed by 18 U.S.C. § 2518. Scurry also argues that the govemment failed to
properly minimize the telephone calls intercepted on his line.
1. Probable Cause
Scurry seems to argue that a failure to satisfy the necessity requirement of 18 U.S.C. §§
2518(1)(c) and (3)(c) also constitutes a failure to establish probable cause for the wiretap of his
telephone and extension thereof. This argument is unsubstantiated and nonsensical. Moreover, a
review of the affidavit submitted by Special Agent ("SA") Fiorito demonstrates that probable
cause was established. SA Fiorito’s affidavit asserted that agents leamed from one reliable
cooperating witness that Scurry had been selling crack cocaine in the Second Court of the 4200
block of Fourth Street, S.E., Washington, D.C., since at least 2005. See Fiorito Aff., Apr. 22,
2010, at 1111 17-20, TII11431-1432. Agents leamed from a second reliable cooperating witness
("CWZ") that Scurry had offered to sell CW2 crack cocaine. See Fiorito Aff., Apr. 22, 2010, at 11
34, TI11l437. Starting in November 2009, investigating agents made nine separate controlled
purchases of crack cocaine f``rom Scurry using CW2. ln the first controlled purchase, Scurry
provided his cellular telephone number to CW2. Although Scurry transposed two of the digits,
he corrected his error during the third controlled purchase. In all of the remaining controlled
buys, Scurry used his telephone to set up each buy. In or about january 2010, Scurry acquired a
second cellular telephone and began using it. In or about March 2010, Scurry stopped using his
first telephone. 1n the last controlled buy on March 12, 2010, Scurry called CW2 using the
second cellular telephone. See Fiorito Aff., Apr. 22, 2010, at 1111 35-58, TlIIl437-l450. An
analysis of pen register data of the two telephones showed that they were in contact with 75
common telephone numbers. See Fiorito Aff., Apr. 22, 2010, at 1111 59~62, Tllll450~l455.
These details in SA Fiorito’s affidavit established that there was probable cause to believe that
Scurry was using his cellular telephone to conduct drug deals and that immediately prior to the
interception request, he acquired a new cellular telephone. The govemment therefore properly
established probable cause to conduct a wiretap of Scurry’s cellular telephone, as required by 18
U.S.C. § zsis(i)(b)(i).
2. Necessit_y
Scurry also argues that the government’s application to wiretap Scurry’s cellular
telephone did not meet the necessity requirement imposed by 18 U.S.C. §§ 2518(1)(c) and (3)(c).
Howevcr, SA Fiorito’s affidavits are sufficient to meet this statutory requirement, In SA
Fiorito’s affidavit for the initial wiretap application, SA Fiorito explained in detail why physical
surveillance, use of undercover personnel, use of cooperating witnesses and/or confidential
informants, use of the grand jury, interviews of subjects and associates, use of search warrants,
analysis of pen registers and air time records, and trash pulls had been tried and failed, why they
reasonably appeared unlikely to succeed if tried, or why they would be too dangerous. See
Fiorito Aff., Apr. 22, 2010, at 1111 64~85, 1``1111455-1467. ln his affidavit in support of the
govemment’s application for an extension of the wiretap, SA Fiorito discussed the evidence
developed during the first 30 days of interceptions, physical surveillance, cell site tracking and
geolocation data, use of undercover police personnel, use of cooperating witnesses and
confidential infoimants, use of the grand jury, interviews of subjects or associates, search
warrants, and analysis of pen registers and air time records that had been tried and failed, why
they reasonably appeared unlikely to succeed if tried, or why they would be too dangerous. See
Fiorito Extension Aff. at 1111 45-69, Tlll 1 503-1 5 16.
Scurry argues that the affidavits in support of the applications to intercept his wire
communications did not meet the necessity requirement for two reasons. First, he argues that the
affidavit states that a search warrant would not be effective because it is not known where and
when drugs were being stored at Scurry’s residence, but on Decernber 7, 2009, Scurry retumed
to his residence during a controlled buy to obtain drugs Second, Scurry argues that the agents
had the option of utilizing GPS devices on Scurry’s vehic1es. The content of the aff``idavits,
however, shows otherwise.
With respect to the use of search warrants, SA Fiorito explained that although
investigators had followed Scurry to his residence during a controlled buy so that Scurry could
obtain additional crack cocaine-~thereby allowing them to infer that Scurry used his residence as
a stash house-executing a search warrant at Scurry’s home at that time would be preinature.
This was because executing a search warrant would not capture "the full scope of the
conspiracy" and "would not identify the source of supply and the other principals involved in
this criminal conspiracy." Fiorito Aff., Apr. 22, 2010, at 11 81, T IlI1464. Moreover, SA Fiorito
represented that he knew that drug dealers maintained multiple stash houses and that Scurry
specifically utilized various unidentified apartments in the 4200 block of Fourth Street, S.E.,
Washington, D.C., to sell from and to run into if law enforcement officers entered thc area. Id. at
11 82, TIlI1464-l465. SA Fiorito concluded:
Search warrants would alert the target subjects to the existence of the
investigation and would prevent the identification of other co-conspirators and/or
the seizure of substantial contraband. Moreover, investigative methods used to
date do not by themselves seem likely to yield additional information about the
storage and packaging locations. Witliout interception of wire communications, it
would be difficult to know when and where narcotics transactions are to occur,
which would be essential to the successful execution of any search warrant that
would result in a substantial seizure of contraband.
Id.
Regarding Scurry’s argument that the government could have utilized a GPS device on
Scurry’s vehicles, SA Fiorito explained in his affidavit for an extension of the authorization to
intercept Scurry’s wire communications that the use of geolocation inforrnation, while helpful to
10
the investigation, had its limitations He noted that the geolocation information that had been
collected from Scurry’s telephone, as authorized by the first interception order, was
extremely useful insofar as it has assisted agents in discerning pattems of
[Scurry’s] whereabouts between surveillance efforts, at times when [Scurry] was
participating in pertinent intercepted conversations. For example, it was the
collection of geolocation infonnation on April 10, 2010, that allowed the FBI to
determine that [Scurry] was in fact on 4th Street SE when he was speaking to
[Hudson].
Fiorito Extension Aff. at 11 59, TIlIl509~T1IIl510. Although this geolocation information was
obtained from Scuny’s cellular telephone as opposed to Scurry’s vehicle, SA Fiorito’s
explanation demonstrates how the further use of geolocation information would be limited in its
potential to advance the investigation’s objectives.'
Because the affidavits in support of the govemment’s wiretap applications for Scurry’s
cellular telephone have shown "that other techniques are impracticable under the circumstances
and that it would be unreasonable to require pursuit of those avenues of investigation," Johnson,
696 F.2d at l23, they have properly met the necessity requirement.
3. Mc``nimization
Scurry also contends that in conducting the wiretaps of his cellular telephone line, the
govemment failed to fulfill its obligation under 18 U.S.C. § 2815(5) to minimize the interception
of communications not otherwise subject to interception. According to Scurry,
"out of 9012 completed calls, 1177 were pertinent. Of the remaining 6523 calls, it is assumed all
were non-pertinent Of the non~pertinent calls, 504 lasted between one and two minutes and 360
lasted longer than two minutes." Scurry Mot. [59] to Suppress, at 7. Based on these statistics,
Scurry reasons, the govemment failed to minimize the interception of non-pertinent calls,
l At the time that the govemment applied for and obtained the authorization to intercept Scurry’s wire
communications, the D.C. Circuit had not yet ruled on the issue of whether a warrant is necessary to utilize a GPS
device on a velijcle. However, Scurry concedes that the agents attempted to obtain a warrant to utilize GPS devices
on Scurry’s vehicles, but ultimately failed to do so.
ll
Before the Court can find that the govemment failed to comply with the minimization
requirement, the defendant must show that "some conversation was intercepted which clearly
would not have been intercepted had reasonable attempts at minimization been made." Scott,
516 F.2d 751, 757 (D.C. Cir. 1975), aj"d, 436 U.S. 128 (1978). "A defendant who does not
identify specific conversations that should not have been intercepted, or even a pattern of such
conversations has offered no concrete indications that the govemment failed to meet its
obligations to minimize intercepted communications . . . ." Carter, 449 F.3d at 1295 (intemal
quotations and citations omitted), Here, Scurry’s motion to suppress the cell phone wiretap
evidence does not identify any conversation or pattern of conversations by which the Court can
determine whether the govemment met its minimization obligations. Rather, Scurry seems to
point to the number of non-pertinent calls that were not minimized by the government~a
number that the govemment claims to be the result of flawed calculations by Scurry. However,
"blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to the
correct answer." Scotz, 436 U.S. at 140. While such percentages may provide assistance, there
may be cases "wherc the percentage of nonpertinent calls is relatively high and yet their
interception was still reasonable." Id. And regardless of the disparity between the defendant’s
and the govemment’s calculations, Scurry cannot "[rely] solely on the existence of a raw
percentage of non-pertinent intercepted calls as a means of demonstrating that some
conversations were intercepted when they would not have been had reasonable attempts at
minimization been made." Carzer, 449 F.3d at 1295 (citing Scott, 236 U.S. at l40). The Court
therefore denies Scurry’s motion to suppress wiretap evidence based on the govemment’s failure
to meet the minimization requirement of 18 U.S.C. § 281 5(5).
12
B. Hudson’s Motion to Suppress Wiretap Evidence
Hudson argues that the affidavit in support of the govemment’s application to intercept
his wire communications was not supported by probable cause and did not meet the statutory
necessity requirement, Hudson also contends that the evidence gathered from the wiretap of his
telephone should be suppressed because the order authorizing the interception of his telephone
failed to specifically name the person that authorized thc app1ication.
1. Probable Cause
Like Scurry, Hudson argues that the affidavit in support of the govemment’s application
to intercept his calls fails to establish probable cause. However, the affidavit submitted by SA
Fiorito in support of the govemment’s application clearly establishes probable cause. The
affidavit asserts that agents leamed during the interception of Scurry’s telephone calls that
Hudson used his telephones to engage in at least five categories of drug-related calls: (l)
narcotics-related conversations between Hudson and Scurry; (2) conversations regarding
suspected narcotics meetings between Hudson and Scurry; (3) conversations related to the
delivery of money to Hudson by Scurry; (4) conversations related to Hudson re-supplying Scurry
with crack cocaine; and (5) conversations between Hudson and Scurry involving a potential
common supplier. See Fiorito Aff``., jun. ll, 2010, at 1111 26-75, Tllll549~l569. These assertions
properly constitute probable cause to believe that Hudson was using his cellular telephone to
commit violations of the federal narcotics laws. The affidavit therefore meets the probable cause
requirement of i s u.s.c. § zsis(i)(b)(i).
2. Necessity
Hudson also maintains that the affidavit in support of the government’s wiretap
application did not meet the necessity requirement of 18 U.S.C. §§ 25l8(1)(c) and (3)(c).
13
Specifically, Hudson argues that govemment could have successfully relied on other methods to
obtain additional evidence-the interception of Scurry’s telephone calls, physical surveillance,
the use of undercover police personnel, and the usc of pen registers_rather than applying for a
wiretap. However, the affidavit clearly shows how these "other techniques are impracticable
under the circumstances and that it would be unreasonable to require pursuit of those avenues of
investigation." Johnson, 696 F.2d at 123 (intemal citations and quotations omitted),
Hudson first argues that continuing to intercept Scurry’s calls would have moved the
investigation forward as it related to Hudson. However, continuing to intercept Scurry’s
communications would not have helped the agents satisfy the goals of the investigation,
Specifically, Scurry’s calls provided the govemment with "little or no information concerning
Hudson’s source of supply and his additional customers besides Scurry" or "Hudson’s
relationship with . . . other co-conspirators." Fiorito Aff., jun. ll, 2010, at 1111 78-79, TI11157l-
1572.
Next, Hudson argues that the govemment should have continued to gather infonnation by
conducting physical surveillance However, SA Fiorito explained in his affidavit that Hudson,
Scurry, and their co~conspirators were "highly surveillance-conscious" and that overuse of
physical surveillance increases the risk that the investigation will be exposed to the targets.
Fiorito Aff., jun. 11, 2010, at 11 82, TIIll573. The affidavit went on to note that on one occasion
in this investigation, Hudson and Scurry specifically discussed a particular vehicle that they had
both observed conducting surveillance. Id. at 11 83. 1n addition, when agents tried to conduct
surveillance on a meeting between Scurry and some of his coconspirators while parked in a van
in a parking lot in front of a building used by the coconspirators, the coconspirators discovered
the van, walked up to it and started peering into the windows, and began pounding on the
14
vehicle-causing the agents inside the van to become concerned for their safety and drive away.
Id. In response to this incident, the coconspirators ceased using the building next to where the
van had been parked. Id. at 1[ 84, TlIIl 574. The affidavit thus illustrates how the use of physical
surveillance alone would not have satisfied the objectives of the investigation,
Hudson further argues that the govemment made no attempt to use undercover officers or
confidential informants to gather evidence about Hudson. ln so arguing, Hudson misunderstands
the requirements of 18 U.S.C. § 2518( l)(c). The statute does not require thc govemment to use
every possible investigative technique before applying for a wiretap, but rather mandates that the
govemment make "a full and complete statement as to whether or not other investigative
procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if
tried or to be too dangerous." 18 U.S.C. § 2518(1)(0) (emphasis added). Based on the statutory
language, an explanation of why a particular investigatory procedure would reasonably appear to
be unlikely to succeed if tried is sufficient to meet the necessity requirement, As SA Fiorito
explained in the affidavit, CWZ’S position in the narcotics world of the Second Court was that
CW2 could purchase crack cocaine directly from Scurry or from others at Scurry’s direction.
Fiorito Aff., Jun. ll, 2010, at 11 89, TIIIl577-l578. CW2 did n0t, however, have a relationship
with Hudson that would put him in a position to purchase narcotics from Hudson. Id. With
respect to the use of undercover officers, SA Fiorito explained that there were no undercover
officers that could infiltrate this conspiracy at Hudson’s level and that in any event, the agents
did not have a cooperating witness that Hudson trusted enough to introduce a potential
undercover officer to Hudson. Id. at ‘[[ 88, TIII l 577. These explanations were sufficient to meet
the necessity requirement of 18 U.S.C. § 2518(1)(¢) and allow Judge Kennedy to find that these
15
investigative techniques would not have succeeded if they had been attempted, meeting 18
U.S.C. § 2518(3)(c).
Hudson also argues that the govemment did not exhaust the leads from the pen registers
before applying for a wiretap, but as the Court has just clarified, § 25l8(l)(c) does not require
the govemment to use every possible investigative technique before seeking authorization for a
wiretap. Rather, SA Fiorito met the necessity requirement by explaining why the use of pen
registers reasonably appeared unlikely to succeed if tried. The affidavit detailed how pen
registers and air time records
provide only limited ew``dence of narcotics dealing between individuals. Such
records in and of themselves are useful mainly in establishing relationships and
pattems of operations, and provide little direct evidence of the significance of the
telephone calls. Without access to the content of the conversations or text
messages, law enforcement agents cannot know for certain whether calls or
electronic communications to or from the target telephones involve drug
customers or other conspirators.
Fiorito Aff., Jun. ll, 2010, at 1[ 96, Tll58l»l582. This explanation was sufficient to meet the
necessity requirement. The statute does not require the agents to exhaust the leads from the pen
registers before seeking a wiretap, as Hudson contends.
Finally, Hudson argues that the govemment’s statements as to necessity were generalized
and conclus0ry. However, SA Fiorito’s affidavit specifically discusses nine separate
investigatory techniques undertaken by the govemment, and explains the limited success they
provided or why they are unlikely to satisfy the goals of the investigation without the
interception of Hudson’s wire communications And although certain sentences in the affidavit,
standing alone, may be conclusory, “[s]ections of an affidavit framed in conclusory terminology
cannot rationally be separated from preceding detailed descriptions of investigative events."
Sobamowo, 892 F.2d at 93 (intemal quotations omitted).
16
The court therefore denies Hudson’s request that the wiretap evidence be suppressed on
theabovebases
3. identification of A uthorizing Official
Hudson also challenges the order signed by Judge Kennedy authorizing the interception
of Hudson’s wire communications because the name of the person at the Attomey General’s
Office who authorized the application is not included in the order.z "Any aggrieved person . . .
may move to suppress the contents of any wire or oral communication intercepted ..., or
evidence derived therefrom, on the grounds that . . . the order of authorization or approval under
which it was intercepted is insufficient on its face." 18 U.S.C. § 25l8(l0)(a)(ii). Under 18
U.S.C. § 251 8(4)(d), an order authorizing the interception of wire communications is required to
specify "the identity of the agency authorized to intercept the communications, and of the person
authorizing the application." Rather than state the name of the authorizing individual at the
Attomey General’s Office, the order signed by Judge Kennedy authorizing the interception of
Hudson’s wire communications contains "******" in the place where the name of the
authorizing individual should be located See Order Authorizing Interception of Wire
Communications, at TIlll 329. That omission, however, does not mean that the application was
not authorized. Attached to the application for the interception was a document signed by Bruce
C. Swartz, Deputy Assistant Attomey General of the Department of Justice’s Criminal Division,
authorizing the interception of Hudson’s wire communications.z See App. TIIIl3l2, 'l``llIl322-
1323.
2 Savoy specifically joins this aspect of Hudson’s motion. See ECF No. 90.
3 18 U.S.C. § 2516(1) permits the following officers to authorize a wiretap application: "[t]he Attomey General,
Deputy Attomey General, Associate Attomey General, or any Assistant Attomey General, any acting Assistant
Attorney Gencral, or any Deputy Assistant Attomey General or acting Deputy Assistant Attomey General in the
Criminal Division . . . specially designated by the Attomey General . . . ."
l7
While there is no law in the D.C. Circuit directly on point, numerous other courts have
held that a wiretap order’s failure to identify the person authorizing the application does not
prejudice the defendant, so as to require suppression of the wiretap evidence, where the wiretap
application was authorized by an appropriate individual within the Department of Justice and
that authorizing individual was identified by name in the wiretap application See, e.g., Unz``ted
Stales v. Small, 423 F.3d ll64, 1178 (lOth Cir. 2005); Um``tea' States v. Radcliyj‘, 331 F.3d 1153,
1160 (lOth Cir. 2003); Um``ted Stazes v. Guzman-Torres, 2011 WL 4639922, at *2 (W.D. Okla.
Oct. 4, 2011); United States v. Fudge, 2001 WL 34377928, at *6-7 (W.D. Wis. Jun. 21, 2001).
As in these cases, there is no dispute here that the application was authorized by an appropriate
individual within the Department of Justice and that this authorizing individual was identified by
name in the wiretap application. The failure to name'the official in the wiretap order itself
therefore did not result in prejudice to Hudson. As such, although the failure to include Swartz’s
name in the order rendered the order facially insufficient under 18 U.S.C. § 25l8(10)(a)(ii), this
failure constituted a technical defect that did not undcnnine the purposes of the statute or
prejudice Hudson. Raa'clz``yj§ 331 F.3d at 1160. The Court therefore denies Hudson’s motion to
suppress on this ground.
C. Savoy and Brown’s Motions to Supprcss Wiretap Evidence
Savoy moves to suppress the evidence collected from the govemment’s interception of
his wire communications.4 Brown also challenges the validity of the application for and order
" Savoy challenges both the govemment’s June ll, 2010 application to intercept Hudson’s cellular telephones and
the govemment’s June 22, 2010 application to intercept Savoy’s cellular telephones. The Court has already
addressed-and rejected-Savoy’s arguments in the context of Hudson’s challenge to the June ll wiretap
application This section of the Memorandum Opinion therefore only addresses Savoy and Brown’s objections to
the govemment’s July 22 wiretap application to intercept Savoy’s communications, which are contained in docket
numbers 90, 123-1, 156-1, 158, 178, 183, and 184.
18
authorizing the interception of the govemment’s interception of the wire communications on
Savoy’s cellular telephones.
1. Probable Cause
Savoy argues that the affidavit in support of the govemment’s July 22, 2010 application
to intercept his cellular telephones fails to establish probable cause. According to Savoy, the
govemment’s wiretap application did not provide sufficient facts and information to allow Judge
Kennedy to make an independent determination that probable cause exists to support the
requested wiretaps. However, SA Ray’s affidavit in support of the govemment’s July 22, 2010
wiretap application establishes ample probable cause in support of the wiretap applications
SA Ray’s affidavit explained that "[a]n analysis of the pen registers and toll records for
the two target telephones, as well as an analysis of the intercepted telephone calls involving or
about [Savoy] on [Hudson/s] telephone, support the conclusion that there is more than the
necessary probable cause to intercept the calls on [Savoy’s] telephones." Ray Aff., July 22,
2010, at 11 24, Tlll1604. The affidavit summarizes in detail a series of calls intercepted between
Savoy and Hudson from June 14, 2010 to July 2, 2010 in which Savoy and Hudson discuss
Savoy’s resupply of narcotics (which SA Ray believes to be cocaine) to Hudson. See Ray Aff``.,
July 22, 2010, at 1111 29-69, TIlIl609-l 622. immediately following a number of the calls on
June 21, 2010, Savoy met with Hudson and "provided Hudson with the drugs they had been
discussing in the prior telephone calls" that day. ld. at 11 58, TII11616. SA Ray’s summaries of
the calls between Savoy and Hudson were based upon SA Ray’s experience and training as well
5 Savoy also challenges the govemment’s June ll, 2010 application to intercept Hudson’s cellular telephones on the
basis that it did not establish probable cause. The Court has already addressed-and rejected-these arguments iri
the context of Hudson’s challenge to these wiretap applications This section of the Memorandum Opinion therefore
only focuses on Savoy’s challenge to the govemment’s July 22, 2010 wiretap application.
19
as the training and experience of other agents and detectives in this and other investigations. ld.
at 11 29, T1Ill 609.
The significant amount of narcotics trafficking activity detailed in the affidavit
constitutes probable cause for the government to believe that Savoy was using both of the target
telephones listed in the wiretap application to conduct drug transactions. The affidavit makes
clear that the govemment did not, as Savoy contends, rely on "subjective, conclusory statements"
of law enforcement agents in its application for a wiretap of Savoy’s cellular phones. 'l``he Court
therefore finds that sufficient probable cause existed to support Judge Kennedy’s approval of the
govemment’s application for a wiretap of Savoy’s cellular telephones.
2. Necessl'ty
Savoy argues that the affidavits in support of the govemment’s applications fail to meet
the necessity requirement because they contain conclusory statements that the law enforcement
agents believe that ordinary investigative measures were not expected to be effective. He also
asserts that the affidavits failed to provide adequate detail regarding the extent to which ordinary
investigative methods had been implemented, or the futility of doing so.
Although SA Ray’s affidavit does contain conclusory statements regarding the efficacy
of normal investigative procedures employed by the govemment, these conclusions are
accompanied by lengthy descriptions of what other investigative techniques had been utilized
and why their continued use would not be successful. These other investigative techniques
included: reliance on previous interceptions of communications, Ray Aff., July 22, 2010, at 1111
72~75, Tlll1623-1624; physical surveillance, id. at 1111 76-83, TllI 1624~1629; cellsite tracking
and geolocation data, id. at 11 84, '¥1111628#1629; use of undercover police personnel, id. at 11 85,
TIIll629~1630; use of cooperating witnesses and confidential informants, id. at 1111 86-88,
20
'l``lIll630-l63l; the grand jury, id. at 1111 89~90, 'l``Illl63l-l632; interviews of subjects or
associates, id. at 11 91, TIlIl632~l633; search warrants, id. at 1111 92~93, TIIIl633~1634; and
analysis of pen registers and airtime records, z‘d. at 11 94, TllIl634»l635. "Sections of an
affidavit framed in conclusory terminology cannot rationally be separated from . .. detailed
descriptions of investigative events." Sobamowo, 892 F.2d at 93 (intemal quotations omitted).
The govemment therefore properly met the statutory necessity requirement.
3. Authorization of the Government’s Wiretap Application
Savoy and Brown also challenge the govemment’s July 22, 2010 wiretap application on
the basis that the application was not approved by an official within the Department of Justice
listed in 18 U.S.C. § 2518(1 l)(b)(i): "the Attomey General, the Deputy Attomey General, the
Associate Attomey General, an Assistant Attomey General, or an acting Assistant Attomey
General." 18 U.S.C. § 25lS(ll)(b)(i).6 Additionally, Savoy and Brown contend that the
application did not conform to 18 U.S.C. § 2518(l)(a), which mandates that the application shall
inform the judge of the identity of the official authorizing the application. They also point out
that the order signed by Judge Kennedy authorizing the interception of Savoy’s cellular
telephones similarly did not identify the official who had authorized the application, as required
by 18 U.S.C. § 25l8(4)(d).
The govemment agrees that the wiretap order does not satisfy the enhanced requirements
for wiretap authorization pursuant to 18 U.S.C. § 2518(1l). However, § 2518(11) applies to
roving wiretaps, which the govemment neither sought nor implemented. "An ordinary wiretap
specifies a particular location or telephone line for interception. Subject to the minimization
requirement, any and all conversations occurring over that line may be legally intercepted, even
if none of the targeted individuals named in the order is a party to the conversation." Um'ted
6 Brown specifically joins this aspect of Savoy’s motion. See ECF No. 104-l.
21
States v. Silberman, 732 F. Supp. 1057, 1062 (S.D. Cal. 1990). ln contrast, "under a roving
wiretap, interception of conversations to which a targeted individual is not a party is prohibited."
ld. When the govemment seeks authorization for a roving wiretap, it "must establish that the
target would thwart detection from a specified facility or location." United States v. Hermanek,
289 F.3d 1076, 1087 (9th Cir. 2002). "By enacting that provision, Congress contemplated the
roving surveillance of suspects who move from room to room in a hotel or of alleged terrorists
who use different telephone booths to avoid surveillance or who use cloned cellular phone
numbers and change numbers frequently to avoid detection." Id. (intemal citations and quotation
marks omitted).
Section 2518(1 1) provides for the authorization of roving wiretaps in situations where the
govemment is unable to specify with particularity "the facilities f``rom which, or the place where,
the communication is to be intercepted." A roving wiretap requires authorization from one of
several senior Justice Department officials at the level of Assistant Attomey General or higher,
see 18 U.S.C.§ 2518(1 l)(b), whereas a standard wiretap application may be authorized by a
Deputy Assistant Attomey General designated to make such applications by the Attomey
General, see 18 U.S.C. § 2516(1). The govemment’s application to intercept Savoy’s wire
communications clearly identified the facilities to be tapped by their phone numbers and by their
respective identification numbers, satisfying the requirements of 18 U.S.C. §§ 25l8(l)(b)(ii) and
25l8(4)(b). See App. 11 2, Tllll35l~l352. As a result, the application was properly authorized
by Deputy Assistant Attomey General John C. Keeney, in compliance with 18 U.S.C. §
25l8(1)(a). See App. 11 4, TIlIl353; Tllll365-1366. The order authorizing the govemment’s
interception of Savoy’s wire communications similarly properly identified Deputy Assistant
Attomey General Keeney as the authorizing official See TIIIl375. See Um'ted States v.
22
Goodwin, 141 F.3d 394, 402-03 (2d Cir. l997) (recognizing that “authorization by a Deputy
Assistant Attomey General was sufficient" where the "govemment’s affidavits in support of its
application clearly identified the facilities to be tapped by their telephone numbers and by their
electronic serial numbers"). The Court therefore rejects this challenge to the wiretap of Savoy’s
cellular telephones raised by Savoy and Brown.
4. Nature and Location of the Facilities
Savoy and Brown also challenge the govemment’s applications and orders for wiretaps
on the basis that they did not include “a particular description of the nature and location of the
facilities from which or the place where the communication is to be intercepted," as required by
18 U.S.C. § 25l8(l)(b)(ii). Speciiically, Savoy and Brown argue that the govemment did not-
and could not-specify the particular location of the facilities from which the communications
were to be intercepted. Savoy and Brown maintain that because the govemment sought wiretaps
of cellular telephones, the government was required to proceed under § 2518(11). And because
the govemment did not satisfy the requirements of § 2518(11), they argue, it did not secure
roving wiretaps. Despite that, Savoy and Brown say, the govemment conducted roving
surveillance because it intercepted communications transmitted by unspecified communication
transmission facilities-cell phone towers-at unspecified locations.
Savoy and Brown claim that they are not arguing that all wiretaps of cell phones
constitute roving wiretaps, yet because of the impossibility of predicting where a cell phone will
be used at any given time, any demand that the govemment specify the locations where a cell
phone will be used effectively stands for that argument. They attempt to distinguish their
argument from that of the defendant in Gooa’win by maintaining that they are not arguing that the
govemment could not identify the facilities to be tapped-that is, the cell phone-but rather that
23
the govemment could not identify the location of the facilities to be tapped. This claim ignores
the fact that the location of a cellular telephone is wherever that phone is being used, and thus is
part of the facility itself. Where the defendant in Goodwin correctly noted that it is impossible to
predict a cell phone’s location, Goodwz'n, 141 F.3d at 403, Savoy and Brown seem to argue that
the govemment enjoys some sort of clairvoyant power that would enable it to determine at any
given time where a cell phone is going to be used, and that the govemment must include this
information in its wiretap application.
Savoy and Brown rely on U.S. Telecom Ass ’n v. F.C.C., 227 F.3d 450 (D.C. Cir. 2000),
for the proposition that "[in] the wireline environment, . . . law enforcement agencies have
generally been able to obtain location infonnation routinely from the telephone number because
the telephone number usually corresponds with location. In the wireless environment, the
equivalent location information is the location of the cell sites to which the mobile terminal or
handset is connected at the beginning and at the termination of the call." U.S. Telecom Ass ’n v.
F. C.C., 227 F.3d 450, 464 (D.C. Cir. 2000).
Initially, the Court notes that Savoy and Brown’s reliance on U.S. Telecom is misguided.
In U.S. Telecom, telecommunications industry associations and privacy rights organizations
challenged certain portions of the FCC’s implementing order, arguing that the FCC exceeded its
statutory authority. See U.S. Telecom, 227 F.3d at 453. Not only do Savoy and Brown take the
quoted phrase out of context, but they seek to rely on a civil case reviewing an agency action in
order to interpret a criminal statute. Civil case law has no precedential or persuasive effect in
this context, where the defendants seek to suppress evidence on the basis that the government did
not comply with criminal statutory requirements.
24
Furthennore, as explained above, the govemment followed the procedures for obtaining a
standard wiretap enumerated in 18 U.S.C. §§ 25l8(1)-(4) and therefore was not required to
include the roving wiretap elements in the applications for and orders authorizing interception.
See Goodwz'n, 141 F.3d at 402~03. "In the wiretap context, [the Fourth Amendment]
requirements are satisfied by identification of the telephone line to bc tapped and the particular
conversations to be seized." Um'tea' States v. Donovan, 429 U.S. 4l3, 427 n.l5 (1977).
identifying the communication facilities to be intercepted by their telephone number and
electronic serial number (ESN) satisfies the requirements of 18 U.S.C. §§ 2518(1)(b)(ii) and
2518(4)(b). Goodwin, 141 F.3d at 403. ln the wiretap application to intercept Savoy’s wire
communications, the govemment properly identified each of the target cellular telephones by its
phone number, its ESN or lMSI, its subscriber, that subscriber’s listed address, and the suspected
user. See App. 11 2, T1Ill 351-l 352. 1n addition, the application provided that each of the target
cellular telephones were being used in the District of Columbia and elsewhere. See id. at 11 3,
TIIIl352.
For these reasons, the Court denies Savoy and Brown’s motions to suppress wiretap
evidence.
D. Johnson’s Motion to Suppress Wiretap Evidence
Johnson also moves to suppress the electronic surveillance evidence obtained as a result
of multiple wiretaps.
1. Jurisdiction
First, Johnson argues that Judge Kennedy lacked jurisdiction to issue the wiretap
authorization order, An application for an order authorizing the interception of wire
communications must be filed with "a judge of competent jurisdiction," 18 U.S.C. § 2518(1),
25
which includes "a judge of a United States district court or a United States court of appeals," id.
§ 2510(9). 18 U.S.C. § 25l8(3) authorizes a district court judge to approve a wiretap "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)." Other courts have declined to interpret the tenn "mobile interception
device" to include a cellular telephone." See, e.g., United States v. North, 2011 WL 653864, at
*4 n. 7 (S.D. Miss. Feb. 14, 201 l). But see United States v. Ramz'rez, ll2 F.3d 849, 853 (7th Cir.
1997), However, the Fifth Circuit held in United States v. Denman that "[b]ecause the definition
of interception encompasses the aural acquisition of the contents of the communication," the
location of the interception includes "the situs of the telephone itself" and “the place where the
contents of a wire communication are first to be heard and understood by human ears, other than
those of the parties to the conversation," that is, the original listening post. 100 F.3d 399, 403
(Sth Cir. 1996) (citing United States v. Rodriguez, 968 F.2d l30, 136 (2d Cir. 1992)). Although
Denman involved a land-line phone, courts have applied the same definition of interception to
hold that cell phone communications "are deemed intercepted at two places: where the tapped
telephone is located and where the communications are overhear ." United States v. Goodwz'n,
131 F.3d 132 (2d Cir. 1997) (unpub.) (citing Rodri'guez, 968 F.2d at 136, and Denman, l00 F.3d
ar 402-04).
Johnson maintains that Judge Kennedy did not have jurisdiction to issue an order
approving the govemment’s wiretap application on phone number 240-246-4443 unless the
listening post was located in the District of Columbia, or unless Johnson was in the District when
he made the intercepted calls. Johnson says that he does not know where the FBI’s listening post
was located for the wiretap on 240-246-4443, and Johnson asserts-without support-that he has
26
reason to believe that none of the intercepted calls were made from inside the District of``
Co1umbia. However, SA Ray’s affidavit in support of the govemment’s wiretap application
plainly states that the wire interceptions on this telephone will be monitored at the FBI’s
Washington Field Office, which is located within Judge Kennedy’s jurisdiction, and gives details
to support SA Ray’s assertion that Johnson is using the telephone to discuss and facilitate drug
trafficking in Washington, D.C. See Ray Aff., Sept. 10, 2010, at 11 7, T1I1l644. "[A] district
judge in the district where the listening post is located would undeniably have territorial
jurisdiction to issue a wiretap authorization." North, 2011 WL 653864, at *6. Therefore, the
Court finds that Judge Kennedy had proper jurisdiction to issue a wiretap order authorizing
interception of Johnson’s cellular te1ephone.7
2. Nature and Location of the Facilities
Johnson also challenges the order authorizing the interception of Johnson’s wire
communications on the basis that the order did not identify "the nature and location of the
communications facilities as to which, or the place where, authority to intercept is granted." 18
U.S.C. § 25l8(4)(b). The Court reiterates that identifying the communication facilities to be
intercepted by their telephone number and electronic serial number satisfies the requirements of
18 U.S.C. § 25l8(4)(b). Gooa'win, 141 F.3d at 403. The order signed by Judge Kennedy
properly identifies the cellular telephone to be intercepted its phone number and intemational
mobile serial identification number. See Order to Service Provider at 2, '1``1111398. The Court
7 While "[t]he requirement of judicial approval is obviously at the core of the congressional purposes underlying
[the] statute," United States v. Moore, 41 F.3d 370, 375 (Sth Cir. 1994), territorial jurisdiction is not central to the
purposes of Title lII. See, e.g., Adams v. Lamkford, 788 F.2d 1493, 1497 (11th Cir. l986); United States v.
Rodriguez, 734 F. Supp. ll6, 120 (S.D.N.Y. 1990). If "a judge of competent jurisdiction reviewed the applications
and issued the challenged intercept orders, . . . the essential requirement of § 2518 that law enforcement authorities
convince a District Court that probable cause existed to believe that a specific person was committing a specific
offense using a specific telephone was met. Therefore, suppression is not required on jurisdictional grounds,
regardless of whether the listening post or tapped cell phone was located within the court’s territorial jurisdiction."
North, 2011 WL 653864, at *6 (intemal quotations and citations omitted).
27
therefore finds that the order authorizing the interception of Johnson’s cellular telephone met the
requirements of 18 U.S.C. § 2518(4)(b).8
3. Authorization of the Governments’ Wiretap Application
Johnson further challenges the order signed by Judge Kennedy authorizing the
interception of Johnson’s wire communications because the order omits the name of the person
at the Attomey General’s Office who authorized the application. Under 18 U.S.C. § 25l8(4)(d),
an order authorizing the interception of wire communications is required to specify "the identity
of the agency authorized to intercept the communications, and of the person authorizing the
application." Rather than state the name of the authorizing individual at the Attomey General’s
Office, the order signed by Judge Kennedy authorizing the interception of Johnson’s wire
communications contains "*" in the place where the name of the authorizing individual should
be located. See Order Authorizing Interception of Wire Cormnunications, at TIII1404. That
omission, however, does not mean that the application was not authorized. Attached to the
application for the interception was a document signed by Kenneth A. Blanco, Deputy Assistant
Attomey General of the Department of Justice’s Criminal Division, authorizing the interception
of Hudson’s wire ¢ommuni¢arions? see App. Tr1i1396.
As explained above, numerous other courts have held that a wiretap order’s failure to
identify the person authorizing the application does not prejudice the defendant, so as to require
suppression of the wiretap evidence, where the wiretap application was authorized by an
8 Johnson also argues that Judge Kennedy’s order is insufficient on its face because it does not include a statement
of jurisdiction or assert the location of the FBI listening post or the location of Johnson and his cell phone. The
Court notes that the order’s identification of Johnson’s cell phone by its phone number and serial number is
sufficient to fulfill the requirements of § 2518(4)(b) because the statute requires specification of either the nature and
location of the communications facilities as to which authority to intercept is granted or the place where authority to
intercept is granted_not both. See 18 U.S.C. § 25l8(4)(b).
9 18 U.S.C. § 25l6(l) permits the following officers to authorize a wiretap application: "[t]he Attomey General,
Deputy Attomey General, Associate Attomey General, or any Assistant Attomey General, any acting Assistant
Attomey General, or any Deputy Assistant Attomey General or acting Deputy Assistant Attomey General in the
Crimina1Division . . . specially designated by the Attomey General . . . ."
28
appropriate individual within the Department of Justice and that authorizing individual was
identified by name in the wiretap application. See, e.g., United States v. Small, 423 F.3d 1164,
1178 (l0th Cir. 2005); United States v. Radcliff 331 F.3d 1153, 1160 (lOth Cir. 2003); United
States v. Guzman-Torres, 2011 WL 4639922, at *2 (W.D. Okla. Oct. 4, 2011); United States v.
Fudge, 2001 WL 34377928, at *6-7 (W.D. Wis. Jun. 21, 2001). As in these cases, there is no
dispute here that the application was authorized by an appropriate individual within the
Department of justice and that this authorizing individual was identified by name in an
authorization memorandum that was attached to the wiretap application The failure to name the
official in the wiretap order itself therefore did not result in prejudice to Johnson. As such,
although the failure to include Deputy Assistant Attomey General Blanco’s name in the order
rendered the order facially insufficient under 18 U.S.C. § 2518(l0)(a)(ii), this failure constituted
a technical defect that did not undermine the purposes of the statute or prejudice Johnson.
Radclijj', 331 F.3d at 1160. The Court thus denies Johnson’s motion to suppress on this ground.
E. CONCLUS!ON
F or the foregoing reasons, it is hereby
ORDERED that defendants’ lvlotions [59, 77, 90, 105, 108] to suppress evidence
obtained from interceptions of wire communications are DENIED; and it is further
ORDERED that the govemment shall file, within 10 days of the date of this Order, a
proposed redacted version of the August 3, 2012 sealed Memorandum and Order that could be
released to the public. If the govemment fails to submit a timely response, it will be deemed to
have consented to a full unsealing of the Memorandum and Order.
SO ORDERED.
August 3’2()12 C``-
RoyceVC. Lamberth, Chief Judge
29