United States v. Simmons

UNITED STATES DISTRICT COURT F I L E D
FoR THE DISTRICT oF coLUMBIA APR 2 5 2016
C|erk, U.S. District & Bankruptcy
courts for the District of Co\umbla
)
UNITED STATES OF AMERICA )
)
v. ) Crimina1No. 15-0025 (PLF)
)
CHRISTOPHER FORD, et al., )
~ )
Defendants. )
OPINION
This matter is before the Court on the motions of defendants Marcus Fenwick,
Christopher Ford, and Theodore Sanders to suppress wiretap evidence and the motion of
defendant Ford to dismiss Count One of the indictment on the basis of the government’s alleged
outrageous conduct. l)efendants Levon Simmons, Anthony Hager, Andre Leach, and Rashard
Grant adopt one or more of the motions.l The government opposes the motions. Upon
consideration of the parties’ written submissions, the oral arguments presented at the pretrial
motions hearing held on December 11 and 16, 2015, supplemental memoranda filed by some of
the defendants and the government, the relevant case law, and the entire record in this case, the
Court will deny the motions.z
1 After defendants filed their motions, Fenwick, Leach, and Grant entered guilty
pleas, mooting their requests for relief. § infra at notes 3, 5-7.
2 Relevant papers reviewed by the Court inc1ude: Superseding indictment [Dkt.
40]; Govemment’s Bill of Particulars [Dkt. 75]; Defendant Fenwick’s Motion to Suppress
Wiretap Evidence ("Fenwick Mot.") [Dkt. 101]; March 7, 2014 Affldavit of Timothy B. Wolford
("First Wolford Aff.") [Dkt. 107-1]; March 7, 2014 Order Auth0rizing the interception of Wire
and Electronic Communications ("First Wiretap Order") [Dkt. 107-2]; April 24, 2014 Affrdavit
of Timothy B. Wolford ("Second Wolford Aff.") [Dkt. 107-3]; April 24, 2014 Order Authorizing
the Interception of W_ire and Electronic Communications ("Sec0nd Wiretap Order") [Dkt. 107-
I. FACTUAL BACKGROUND
ln early 2013, the Federal Bureau of Investigation ("FBI") and the Washington,
D.C. Metropolitan Police Department ("MPD") began an investigation into narcotics trafficking
in and around the Woodbury Village apartment complex in southeast Washington, D.C. First
Wolford Aff. jl 20. Over the course of the investigation, the FBI and the MPD identified a
narcotics trafficking organization involved in distributing phencyclidine ("PCP") in that area
known as the "23rd Street Crew." M. 1111 21-22. The FBI and the MPD, relying on information
obtained from executing three search warrants and from a confidential source who had
conducted three controlled purchases of narcotics from defendant Levon Simmons (at least one
purchase was of PCP), concluded that Simmons was distributing PCP in Woodbury Village. E.
122.
On March 7, 2014, the FBI submitted an application and proposed order for a
30-day wiretap on Simmons’s cell phone. First Wolford Aff. 11 4. The application was supported
4]; Govemment’s Omnibus Opposition to Defendant Fenwick’s Motions ("Opp.) [Dkt. 108];
Defendant Simmons’s First Motion to Adopt [Dkt. 113]; Defendant Ford’s Motion to Dismiss
Count One Due to Outrageous Conduct or to Suppress Wiretap Evidence ("Ford Mot.") [Dkt.
121]; Defendant Sanders’ Motion to Suppress Electronic Surveillance ("Sanders Mot.") [Dkt.
127]; Defendant Simmons’s Motion to Suppress Statements and Physical Evidence ("Simmons
Mot.") [Dkt. 128]; Defendant Simmons’s Second Motion to Adopt [Dkt. 129]; Govemment’s
Omnibus Opposition to Defendants’ Motions ("Second Opp.") [Dkt. 137]; Defendant Grant’s
Motion to Adopt [Dkt. 145]; Defendant Ford’s Reply to Govemment’s Omnibus Opposition to
Defendants’ Motion to Dismiss Count One Due to Outrageous Conduct or to Suppress Wiretap
Evidence ("Ford Reply") [Dkt. 153]; Defendant Fenwick’s Notice of Adopted Motions [Dkt.
157]; Defendant Hager’s Motion to Joint [sic] and Adopt Motions [Dkt. 158]; Defendant Sanders
Motion to Adopt [Dkt. l59]; Defendant Leach’s Motion to Join and Adopt [Dkt. 165]; Defendant
Ford’s Notice of Expert [Dkt. 178]; Transcript of December ll, 2015 Motions Hearing
("12/11/15 Tr.") [Dkt. 181]; Defendant Ford’s Motion for Extension of Time [Dkt. 199];
Affidavit of Ben Levitan ("Levitan Aff.") [Dkt. 208-l]; Govemment’s Supplemental Opposition
to Defendant Ford’s Motion to Dismiss [Dkt. 211]; Defendant Ford’s Reply to Govemment’s
Supplemental Opposition [Dkt. 219]; Government’s Sur Reply to Defendant Ford’s Motion to
Dismiss [Dkt. 226]; and Defendant Ford’s Reply to Govemment’s Sur Reply [Dkt. 228].
Wolford also explained that Simmons and his associates are "extremely cautious and aware of
law enforcement surveillance," particularly "vehicles [that] do not belong in their
neighborhood." Ld. 11 62. When law enforcement conducted controlled purchases from
Simmons, Simmons chose a "location [that] can only be accessed on foot and is shielded from
observation." E. il 63. Agent Wolford therefore hypothesized that "extensive physical
surveillance could very well compromise the secrecy of the investigation." E. il 64. He also
explained, however, that when "physical surveillance is used in conjunction" with wiretapping,
"the purpose of meetings takes on a new significance and may constitute admissible, persuasive
evidence of criminal activity." ld. il 6l. As one such example of the efficacy of combining
wiretap interception and physical surveillance in this case, Agent Wolford’s second affidavit
stated that law enforcement recorded a conversation wherein Simmons agreed to meet his PCP
supplier and gave his "exact location." Second Wolford Aff. 1111 33-34. Law enforcement agents
therefore "were able to pre-position themselves at the prescribed location and observed a"
vehicle registered to and driven by F ord "arrive at the location" to meet Simmons. ld. 11 34.
As for physical searches, Agent Wolford concedes that several searches of
Simmons’s alleged "stash houses" in early 2013 resulted in the seizure of eight firearms, eight
ounces of PCP, and the indictment of six of Simmons’s co-conspirators. First Wolford Aff. 11 21.
Agent Wolford explained, however, that additional searches require predicate information like
"the immediate whereabouts of the sought-after evidence." I_d. 11 5 8. Even if law enforcement
could pinpoint a stash house, a physical search would "cause SIMMONS and those higher in the
organization to simply change their methods of distribution in order to further evade law
enforcement," § il 59, or, worse, "take action against law enforcement if detected." Second
Wolford Aff. 1{ 38. Agent Wolford affinned that "search warrants would not be effective at
ll
achieving the larger goals of this investigation," Lg, "[e]vidence seized likely would only
implicate some individuals and not the entire organization." First Wolford Aff. 11 68. Indeed,
Agent Wolford’s second affidavit describes how a search warrant, the basis for which was
wiretap evidence, failed because the subjects of the warrant were "alerted about the officers and
agents approach to the building and [were] able to exit the area with contraband before the agents
arrived at the apartment to execute the warrant." Second Wolford Aff. W 41-42.
3. Cooperating Witnesses, Grand Jury Proceedings, and Pen Registers
Agent Wolford averred in his first affidavit that attempting to get cooperating
witnesses from an earlier criminal prosecution or to hold grand jury proceedings would
undoubtedly "alert" Simmons and the other targets of the investigation and lead to the
"destruction or concealment of documents and other evidence." First Wolford Aff. M 70, 72.
The "five subjects associated with SlMMONS’ drug organization" who already had been
arrested were unwilling to cooperate, which "demonstrate[s] the loyalty of SIMMONS’ crew to
the organization." E: il 70. Further, a grand jury proceeding was unlikely to produce reliable
evidence because the witnesses "would most likely invoke their Fifth Amendment privilege,"
and, if not, "would likely lie under oath." Q. 11 7l. To provide any grand jury witness immunity
would also be "unwise" because it might risk “foreclose[ing] prosecution of the most culpable
persons in the conspiracy. I_cl_.
Pen registers were used in the early stages of this investigation in order to
determine what phone numbers Simmons was calling and whether those numbers were in contact
with known drug dealers. First Wolford Aff. 11 46(b). Agent Wolford explained, however, that
pen registers can only "provide agents with a list of numbers called and will not establish the
identities of all the persons participating in the call or the context of the conversations." Lc_l. 11 78.
12
While pen registers "provide data on the frequency of calls and identifying information regarding
calls from a particular phone," they ultimately were unhelpful in this investigation because
"narcotic traffickers often subscribe to telephones in fictitious names." E.
The Court is satisfied that these explanations sufficiently demonstrate why non-
wiretap methods could not "reveal [Simmons’s] operation’s full nature and scope." _S_@ United
States v. Glover, 681 F.3d at 420. Law enforcement attempted to use pen registers, confidential
informants, and physical surveillance in this case prior to concluding that a wiretap was
necessary, which is more than the D.C. Circuit required in United States v. Carter, 449 F.3d at
1293-94, where it found that law enforcement needed only conduct physical surveillance to
satisfy the necessity requirement. Even if Agent Wolford’s affidavits did not "enumerate every
technique or opportunity missed or overlooked," g:_e_ United States v. Sobamowo, 892 F.2d at 93,
they explained why each one of the alternative techniques defendants suggest "would prove
unsuccessful." §§ United States v. Williams, 580 F.Zd at 588. The Court therefore will deny
defendants’ motion to suppress the wiretap evidence on the grounds that the government failed to
satisfy the necessity requirement of l8 U.S.C. § 2518(1)(0).
C. Minimizalion
Defendants next argue that Title III requires law enforcement to "conduct[] [the
wiretap interception] in such a way as to minimize the interception of communications not
otherwise subject to interception." 18 U.S.C. § 2518(5); §e_e Sanders Mot. at 3.6 Title III’s
minimization requirement "turns on whether the government made ‘reasonable efforts to
6 Grant,.Fenwick, Hager, and Leach adopt Sanders’s motion, §§e_ Dkt. l45, l57,
158 & 165, but it is moot as to Grant, Fenwick, and Leach because they all now have entered
pleas of guilty. S_e_e United States v. Rarnirez, 54 F. Supp. 2d at 27.
13
minimize interceptions of non-pertinent communications." United States v. Scurry, 2016 WL
1391995, at * 14 (quoting United States v. Carter, 449 F.3d at 1295). The burden is initially on
the defendant to "identify particular conversations so that the government can explain their non-
minimization." United States v. Carter, 449 F.3d at l295. "To challenge the reasonableness of
the government's minimization efforts, a party must present more than the raw number of non-
pertinent intercepted calls and their durations." United States v. Scu@, 2016 WL l39l995, at
*14 (citing United States v. Cano-Flores, 796 F.3d 83, 87-88 (D.C. Cir. 20l5)). Moreover, "the
fact that the investigation of a target is part of a larger investigation of ‘a widespread conspiracy’
and the fact that the target and his co-conspirators communicate in code language are
circumstances that would justify ‘more extensive surveillance’ by the government." United
States v. Carter, 449 F.3d at 1296 (quoting Scott v. United States, 436 U.S. 128, 140 (l978)).
Here, defendants’ briefing on the minimization argument consists of two
sentences in Sanders’s motion to suppress: "[n]one of the calls in which Sanders was intercepted
were incriminating As such, they all should have been minimized." g Sanders Mot. at 3.
Hager joins Sanders’s motion, § Llpg note 6, but does not attempt to identify any recordings
that the government s_hould have minimized and thus fails to carry his burden. Sanders’s counsel
elaborated on his minimization argument during the motions hearing, stating that United States
v. Carter is distinguishable because Sanders has "specifically identified" the calls that should
have been minimized. 12/ l l/ 15 Tr. at l3l. Sanders’s counsel then listed several calls in which
77 66
Sanders refers to "his.dog," the "blickey," "bust[ing] a move, grabb[ing] that can," and other
alleged code words for firearms or PCP that he argues are "not incriminatory" because those
"statement[s] could have a number of interpretations." 12/ 1 l/ 15 Tr. at 129-3 l.
l4
Sanders’s minimization argument lacks merit because the government has
explained the non-minimization of each conversation Sanders’s counsel identified at the motions
hearing. Each contains what the government alleges - and says it will prove at trial _ to be
code words for firearms or PCP that defendants understood. While the government will need to
offer expert testimony to prove that claim at trial, s_eg United States v. Glover, 681 F.3d 41 l, 422
(D.C. Cir. 2012), the ``Supreme Court and the D.C. Circuit agree that minimization is relaxed in
the context of wiretaps containing "code language" in a "widespread conspiracy" prosecution.
_S_eg Sc0tt v. United States, 436 U.S. at 140; United States v. Carter, 449 F.3d at l296. The Court
therefore will deny defendants’ motion to suppress the wiretap evidence on the grounds that the
government failed to satisfy the minimization requirement in 18 U.S.C. § 2518(5).
D. Defendants ’ Entitlement to a m Hearing
Defendants next assert that there are five reckless false statements or material
omissions in Agent Wolford’s affidavits that they maintain entitle them to a §§ hearing:
(l) he omitted the fact that law enforcement conducted a controlled purchase on October lO,
2013 that involved Simmons, g Ford Reply at 8-l 0; (2) he omitted the fact that a cooperating
witness had previously provided untrue information to the govemment, § Q. at ll-l2; (3) he
falsely alleged that Simmons was participating in a conspiracy when the only co-conspirators
Agent Wolford identifies in his affidavit were in jail or were confidential govemment sources,
§e_e Ford Mot. at 8-9; Ford Reply at 5-7, 12-16; (4) he relied upon controlled purchases occurring
in October 2013 that had gone stale by the time of his affidavits in March and April 20l4, §§
Ford Mot. at 7-8; Ford Reply at l7 & n.l4; and (5) he committed "outrageous" conduct by
"omitting the fact . . . that the FBI had already initiated and conducted wiretap intercepts on a
15
cell phone allegedly used by Ford for which there was no Justice Department application or court
approved authorization." _S__eg Ford Mot. at 2-3; s_e§ L)_ Ford Reply at 2-5.7
The third and fourth bases are actually challenges to the probable cause contained
in Agent Wolford’s affidavits; neither argument alleges that Agent Wolford’s affidavits contain
false statements or omissions. The Court therefore will analyze them separately from
defendants’ other bases for a F ranks hearing.
1. Challenges to Probable Cause
Title III’s probable cause requirement stems from the statute’s dual demands that:
(1) the government’s affidavit provide "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,"
18 U.S.C. § 2518(1)(b); and (2) the authorizing judge determine that "there is probable cause for
belief that the facilities from which, or the place where, the wire, oral, or electronic
communications are to be intercepted are being used, or are about to be used, in connection with
the commission of such offense, or are leased to, listed in the name of, or commonly used by
such person." 18 U.S.C. § 2518(3)(¢1)."
7 Ford docketed his motion to suppress wiretap evidence [Dkt. l24] separately from
his motion to dismiss the conspiracy count based on "outrageous" conduct [Dkt. 121]; docket
number 124 has no attached memorandum of law, however, and docket number 121 makes
arguments in favor of both motions. Each of the other defendants joins Ford’s motions, s_e_e_ Dkt.
129 (Simmons), 145 (Grant), 157 (Fenwick), 158 (Hager), 159 (Sanders), & 165 (Leach), but
Ford’s motions are moot as to Grant, Fenwick, and Leach because they all now have entered
pleas of gui1ty. S_e_e United States v. Ramirez, 54 F. Supp. 2d at 27.
8 A motion to suppress wiretap evidence based on a violation of these probable
cause provisions of Title III is an argument that "the communication was unlawfully intercepted"
under 18 U.S.C. § 2510(a)(i), not that "the [wiretap] order . . . is insufficient on its face" under
18 U.S.C. § 25l()(a)(ii). §§ United States v. Donovan, 429 U.S. 413, 432 (1977) ("There is no
basis on the facts of this case to suggest that the authorization orders are facially insufficient . . . .
Thus, only § 2518(10)(a)(i) is relevant: Were the communications ‘unlawfully intercepted’
given the violation[] of § 25l8(1)(b)(iv)[?]").
16
"Title ``III imports the Fourth Amendment’s probable cause standard: the
authorizing court must ‘make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before it, including the veracity and basis of knowledge of
persons supplying hearsay information, there is a fair probability that contraband or evidence of
997
a crime will be found.in a particular place, United States v. Scurry, 2016 WL l39l995, at * 12
(quoting United States v. Eiland, 738 F.3d at 338, 347 (D.C. Cir. 20l3)), or, more precisely, that
there was "a ‘fair probability’ that the target phone was being and would be used to commit the
specified narcotics offenses." E. The Court must restrict its probable cause inquiry to the four
corners of the law enforcement agent’s affidavit. United States v. Johnson, 332 F. Supp. 2d 35,
39 (D.D.C. 2004). “Even if the affidavit does contain some general language, applications are
not to be read in a piecemeal fashion," United States v. Eiland, 738 F.3d at 347 (intemal
quotation marks omitted).
a. Probable Cause of a Conspz``racy
Defendants’ argument that Agent Wolford first affidavit falsely alleged that
Simmons had co-conspirators is without merit. At least two circumstances set forth in Agent
Wolford’s first affidavit provided a substantial basis to believe that wiretap interception of
Simmons’s phone would reveal evidence of a conspiracy to distribute PCP. First, while it is "an
"established proposition that a government agent cannot be a conspirator," §§ United States v.
Sitzmann, 74 F. Supp. 3d 96, 105 (D.D.C. 20l4) (citing United States v. Iennaco, 893 F.2d 394,
397 n.3 (D.C .Cir. 19``90)), Agent Wolford’s first affidavit describes how a "black male later
identified as ANTHONY DAVIS" _ admittedly not a government agent - was present when
the government’s confidential source conducted a controlled purchase of PCP from Simmons on
October 28, 2013, for which the confidential source recorded both audio and video. First
17
Wolford Aff. 111 38, 40. Ford responds that Davis was incarcerated at the time of this purchase
for a District of Columbia felony c0nviction. _Sg Ford Reply at 8 (citing 2013-CF3-21997 (D.C.
Sup. Ct.)). The District of Columbia Superior Court docket reveals, however, that Davis did not
enter custody until December 16, 2013 for that offense, nearly six weeks later than the date of
the controlled purchase.
Second, Agent Wolford’s first affidavit mentions that law enforcement executed a
search warrant in early 2013 for "crew members that worked with SIMMONS to operate stash
houses" and obtained a cellphone with "[t]ext messages . . . corroborat[ing] that [six] individuals
. . . were conspiring to control the sale of narcotics in their territory." First Wolford Aff. 11 21. A
reliable govemment confidential source identified those six persons "as crew members that
worked with SIMMONS to operate stash houses." E. "Taken as a whole, then, [Agent
Wolford’s] affidavit satisfies Title lII’s probable cause requirernent." _S_e§ United States v.
s¢urry, 2016 WL 1391995, ar *12 wing 18 U.s.c. §2518(1)(1>),(3)(¢1)).9
b. Staleness
Defendants’ staleness challenge to the probable cause for the first wiretap also
lacks merit.l° "Because probable cause must exist at the time that law enforcement applies for a
warrant, the freshness of the supporting evidence is critical." United States v. Washington, 775
F.3d 405, 408 (D.C. Cir. 2014). "The likelihood that the evidence sought is still in place is a
9 Because the Court finds that Agent Wolford’s first affidavit established probable
cause to believe that Simmons was engaged in a conspiracy to distribute PCP, it does not
consider the governm``ent’s alternative argument that Agent Wolford’s affidavits needed only to
establish probable cause of PWID PCP. _Seg Second Opp. at 5-6.
'° Defendants do not challenge the probable cause for the second affidavit, because
Agent Wolford’s second affidavit (dated April 24, 201) detailed as support for probable cause
the evidence that the FBI had just obtained from the first wiretap (which operated for 30 days
beginning on March 7, 2014). Second Wolford Aff. 1111 17-26.
18
function not simply of watch and calendar but of variables that do not punch a clock: the
character of the crime (chance encounter in the night or regenerating conspiracy?), of the
criminal (nomadic or .entrenched?), of the thing to be seized (perishable and easily transferable or
of enduring utility to its holder?), of the place to be searched (mere criminal forum of
convenience or secure operational base?), etc." United States v. Matthews, 753 F.Sd 1321, 1325
(D.C. Cir. 2014) (quoting United States v. Bruner, 657 F.2d l278, 1298 (D.C. Cir. l98l)
(quotation marks and``citation omitted)). "Courts have sometimes been more ‘lenient’ in
evaluating the freshness of evidence in extended conspiracies than for single-incident crimes."
United States v. Washington, 775 F.3d at 408 (quoting United States v. Webb, 255 F.3d 890, 905
(D.C. Cir. 2001)).
The way in which freshness of information is analyzed in the unique context of
wiretap orders is somewhat different because the question is not probable cause to believe that
drugs, guns, or other contraband is still located at a particular place, but probable cause to
believe that the content of telephone calls will yield evidence of criminal activity. Decisions in
drug conspiracy cases nationwide assessing whether information in a wiretap affidavit has gone
stale typically focus on whether the affidavit as a whole demonstrates that the owner of the target
phone is engaged in ongoing drug trafficking. §e_e_, ;g, United States v. liland, 254 F.3d 1264,
l269 (l0th Cir. 2001)_ (finding probable cause for wiretap based on three-month-old evidence
where "the affidavit also contains facts demonstrating that the alleged drug trafficking activity
was ongoing"); United States v. Diaz, l76 F.3d 52, 109-10 (2d Cir. 1999) (finding probable
cause for wiretap because, "to the extent that there are acts of past criminal activity that in and of
themselves might be stale, such acts can be sufficient if an affidavit also establishes a pattern of
continuing criminal activity so there is reason to believe that the cited activity was probably not a
19
one-time occurrence") (internal quotation marks omitted); United States v. Tallman, 952 F.2d
164, 166 (8th Cir. l991) ("Notwithstanding this [four month] delay, [] we conclude that the on-
going nature of the conspiracy was sufficiently established by the affidavit to support the finding
that probable cause existed for the issuance of the wiretap authorization."); United States v.
R_ov§ll, 903 F.2d 899, 903 (2d Cir. 1990) ("Given the continuous nature of narcotics
conspiracies . . . , the approximately lS-month delay between procuring the informants’
statements and seeking the wiretap warrant did not render the information stale.").
Here, the evidence that Agent Wolford proffered in his first affidavit on March 7,
2014 "demonstrates that there was a ‘fair probability’ that the target phone was being and would
be used to commit the specified narcotics offenses." §§ United States v. Scugy, 2016 WL
1391995, at *12 (internal quotation marks omitted). Agent Wolford explained that, beginning in
early October 2013, the government obtained an order authorizing the use of a pen register on
Simmons’s prior cell phone. First Wolford Aff. 1111 44-48. Later that month, the govemment’s
confidential source communicated with Simmons via text messages and telephone calls to and
from that prior cell phone before conducting two controlled purchases from Simmons on October
16, 2013, Q. 1111 32-35, and October 28, 2013, Lc_l. 1111 38-42. The pen register revealed that
"[b]etween October 11, 2013, and December 6, 2013" Simmons exchanged l7,352 text messages
and 6,3 79 telephone calls, ic_l. 11 45, including 16 calls with a person "identified by an MPD
cooperating source [] as a member of the 23rd [S]treet [C]rew, who has sold PCP in the crew’s
territory." M. 11 46(b)``. Agent Wolford also observed that, "[b]ased upon [his] training and
experience[,] this high call volume is consistent with phone use for the purpose of narcotics
trafficking." I;d_. 11 45.
20
by the affidavit of FB``I Special Agent Timothy B. Wolford, which detailed, i_ri_t§; a_liz_t, law
enforcement’s probable cause to believe that Simmons was involved in PCP trafficking, Q.
1111 24-50, and an explanation of why a wiretap was necessary to bring all of the members of the
23rd Street Crew and not just Simmons to justice. § 111 5 l-80. Agent Wolford’s affidavit did
not identify as "target subj ects" any of the defendants in this case except for Simmons. l_d.
1111 l l-l8. Judge Reggie B. Walton reviewed the application and affidavit, and signed the wiretap
order, finding both probable cause and necessity. First Wiretap Order.
On April 24, 2014, the FBI submitted a second application supported by a second
affidavit of Agent Wolford and proposed order, for a 30-day extension of the wiretap on
Simmons’s cell phone. Second Wolford Aff. This time, the FBI detailed the evidence that it had
obtained from the first wiretap as support for probable cause and necessity. Second Wolford
Aff. 111 17-26. Agent Wolford’s second affidavit identified defendants Ford, Sanders, Hager,
Fenwick, and Grant as additional "target subjects," id il l2(b), (c), (d), (h), & (l), and cited
interceptions involving each one of them as a basis for probable cause. ld. ‘|Hl 17-26. Judge
Walton signed the order extending the wiretap, finding again that Agent Wolford’s affidavit
amply demonstrated probable cause and necessity. Second Wiretap Order.
Based``on evidence obtained from the controlled purchases and Simmons’s many
phone calls overheard on the wiretaps, the grand jury returned an indictment charging all seven
defendants with one count of participating in a conspiracy to distribute PCP, in violation of 21
U.S.C. § 846. Accord Superseding indictment at l-4 (changing the drug quantity alleged for one
defendant in Count One, the conspiracy count, but not adding or subtracting counts). Based on
additional physical evidence law enforcement obtained while executing arrest warrants, the
indictment also charges Simmons, Fenwick, and Leach with one or more counts of possession
In January 20l4, the government obtained a second order authorizing the use of a
pen register on Simmons’s new cell phone, the target phone for the instant wiretap orders. First
Wolford Aff. 11 49; see als_o i_d. il 48 (explaining that a reliable confidential source confirmed that
Simmons was using the new cell phone). The pen register again revealed a "high call volume"
of 13,382 text messages and 9,092 calls between January 24, 2014 and February 25, 2014, i_d.
il 49, but this time indicated only that Simmons communicated several times with a person who
"is a suspect in two armed robberies" and "has a criminal history." § 11 50.
There is no doubt that law enforcement’s October 2013 controlled purchases of
PCP from Simmons would have provided them with the probable cause necessary for a wiretap
application at that time. The question here is whether the October 2013 controlled purchases
became stale by the time of Agent Wolford’s first affidavit in March 2014 and, if so, whether the
more recent pen register data provides the necessary freshness to create a "fair probability" that
evidence of PCP distribution would be found by wiretapping calls made from Simmons’s cell
phone beginning in March 20l4. Judge Walton’s order authorizing the first wiretap does not
indicate what evidence he relied on to find probable cause. §§ First Wiretap Order. But two
pieces of evidence situate the present case among those wiretap drug conspiracy cases from other
circuits, §§ §1_1;&1 at 19-20, that reject staleness challenges to probable cause based on the fact
that the owner of the target phone is engaged in ongoing drug trafficking: (l) between October
2013 and December 2014, Simmons communicated actively with a person law enforcement
knew, on the basis of a reliable confidential source, to be a PCP dealer, First Wolford Aff.
il 46(b); and (2) in October 20l3, Simmons used his cell phone to call and send text messages to
the government’s confidential source in order to facilitate his sale of PCP to the source. lc_l.
1111 32-35. ln reviewing the wiretap applications and Agent Wolford’s first affidavit, Judge
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Walton was entitled to credit the government’s reliable confidential source for the proposition
that Simmons was actively communicating with known PCP dealers as recently as three months
before the government sought the wiretap. _C_f. United States v. Savoy, 889 F. Supp. 2d 78, 89
(D.D.C. 20l2) (collecting D.C. Circuit staleness cases in the context of probable cause to search
for physical evidence that approve of reliance on information as old as five months). Likewise,
the confidential sourc``e’s text messages and telephone calls with Simmons’s prior cell phone in
order to facilitate the controlled purchases of PCP supplied a fair probability that Simmons was
using the target phone to conduct drug trafficking. 11 The Court therefore concludes that the
evidence supporting probable cause in Agent Wolford’s first affidavit was not stale.
2. Omissions
The court next addresses two alleged omissions in Agent Wolford’s affidavits that
the defendants argue entitle them to a f__ran§ hearing: (l) that he omitted the fact that law
enforcement conducted a controlled purchase on October lO, 2013 that involved Simmons, s_e§
Ford Reply at 8-l0; and (2) that he omitted the fact that a cooperating witness had provided
untrue information in the past. §§ i_c_l. at 11-l2. In order to support an entitlement to a Franks
hearing, a defendant must make a substantial preliminary showing that "‘(l) the affidavit
contained false statements or omitted certain facts; (2) the [false] statements [or omitted facts]
were material to the issue of probable cause; and (3) the false statements [or omissions] were
made knowingly and intentionally, or with reckless disregard for the truth."’ United States v.
Becton, 601 F.3d 588, 594 (D.C. Cir. 2010)) (quoting United States v. Richardson, 861 F.2d 291,
ll Judge Walton was also entitled to credit Agent Wolford’s conclusion that, based
on his experience, the extremely high volume of phone calls and text messages on Simmons’s
prior phone and the target phone were indicative of drug trafficking. S_e§ First Wolford Aff.
1111 45, 49.
22
293 (D.C. Cir. 1988) (per curiarn)). Upon making this showing _ which must be "more than
conclusory" and "accompanied by an offer of proof," Franks v. Delaware, 438 U.S. at 171 _
"the Fourth Amendment requires that a hearing be held." E. at 156.
Defendants’ argument that Agent Wolford omitted the October 10, 2013
controlled purchase from his affidavit fails prong two (the materiality prong) because _ as the
Court just determined, § s_up@ at § ll(D)(l)(a)-(b) _ Agent Wolford’s first affidavit
established probable cause even in the absence of the October 10, 2013 controlled purchase.
Under prong two, false statements are only material if, "set to one side, the affidavit’s remaining
content is insufficient to establish probable cause," Franks v. Delaware, 438 U.S. at 156, or, by
corollary, omitted statements are material if "their inclusion in the affidavit would defeat
probable cause."’ United States v. Spencer, 530 F.3d 1003, 1007 (D.C. Cir. 2008) (interna1
quotation marks omitted). Because including the October 10, 2013 controlled purchase would
only strengthen the probable cause in Agent Wolford’s affidavit, his decision to omit it is cannot
be grounds for a Franks hearing.
Defendants’ second argument, that Agent Wo1ford omitted the fact that a
cooperating witness had provided untrue information, fails prong one because there was no such
omission. Agent Wolford testified at the motions hearing that the confidential source "who had
that statement providing one-time false information was not used in the first two affidavits, and
we didn't have his information at the time that 1 wrote that -- the initial wiretap affidavit." Tr.
12-11-15 at 73. Defendants do not dispute this testimony. Because there was no omission, this
issue does not provide a basis for a Franks hearing.
23
3. Outrageous Government Conduct
Defendants’ fifth alleged basis for a Franks hearing is "outrageous" government
conduct, namely that law enforcement had an extrajudicial wiretap on Ford’s cell phone. §ee
Ford Mot. at 2-6; Ford Reply at 2-5. Ford alleged in his motion that he had _ at that time _
"consulted with a wiretap expert who would testify" that the "audible ringing" heard on several
wiretap recordings is proof of such an extrajudicial wiretap, Ford Mot. at 5. At the motions
hearing, the Court stated that Ford’s allegation was a "serious" one, the resolution of which
required "an expert report or an expert affidavit" to resolve whether incoming calls to a target
phone include an audible "ringing" before a call to the target phone is answered. l2/ l l/ l 5 Tr. at
30, 33. Ford noticed its expert, §§ Dkt. 178, and propounded six discovery requests concerning
wiretap information on the govemment in order to aid its expert. _S§§ Dkt. 199 11 4. Eventually,
Ford narrowed his request to two discrete sets of information about the wiretaps: (l) pen register
data and (2) monitor notes. §e_e Levitan Aff. 11 l2. The govemment complied with Ford’s
request to provide that information lc_l.
Ford’s expert ultimately reached no conclusion about the "audible ringing" issue.
In fact, the expert entirely refutes the position that Ford took in his motion by stating that a
"recording must start before the two parties are connected" and, "[a]s such, . . . ringing [] which
may occur prior to a call being answered is recorded." Levitan Aff. il ll. The expert’s only
conclusion is that, "[w]ithout full and proper discovery if [sic] cannot be determined if the
wiretaps in this matter were performed via the J-STD-025 CALEA wiretap system of the target’s
carrier and a complete analysis cannot be properly performed." I_d_. 11 l3. Ford therefore has no
evidence that an "audible ringing" on the wiretap recordings is indicative of an extrajudicial
wiretap, and this argument provides no basis for a Franks hearing.
24
The Court notes that Ford’s "audible ringing" argument has transformed over the
course of the briefing'that followed the filing of his expert’s affidavit. Ford’s expert identified
three problems with the wiretap discovery the defense received from the govemment: (l) pen
register data is missing for five calls; (2) one recording demonstrates "clipping," @, "the audio
recordings started late"; and (3) the government modified the pen register data from its original
forrn. Levitan Aff. m 10-12. Ford filed a subsequent memorandum of law arguing that these
problems provide two additional bases to suppress the wiretap evidence in this case: (l) the
"clipping" suggests the recording was "derived from a separate unauthorized wiretap"; and
(2) "l\/IPD has wiretap equipment" named a "Sting Ray" that "can perform wiretaps without a
court order." g Dkt. 219 at 2-3. Indeed, Ford contends, "the legitimacy or illegitimacy of the
wiretap does not depend solely on the ‘audible ringing’ issue." E.
These new bases for suppression are waived because Ford raised them for the first
time in his reply brief. _Sg ln re Asemani, 455 F.3d 296, 300 (D.C. Cir. 2006) (finding argument
"waived because it was made for the first time in his reply brief"); Rollins Envtl. Servs. v. EPA,
937 F.Zd 649, 653 n.2 (D.C. Cir. 1991) ("Issues may not be raised for the first time in a reply
brief."). In any event, they lack merit. Ford’s expert explained that the allegedly "clipped" call
was a call from Simmons’s target cell phone to Ford and therefore was recorded pursuant to the
authorized wiretap. § Levitan Aff. 11 ll ("The [allegedly clipped] call is apparently from the
target phone to Mr. Ford’s phone. . . . [T]his is an outgoing call from the target."). Likewise,
defendants present absolutely no evidence that law enforcement used a String Ray in this case, or
that doing so would violate either Title III or the Fourth Amendment. The court therefore finds
no basis to hold a Franks hearing because of "outrageous" government conduct.
25
The government also asks the Court to "strike any allegations that" Agent
Wolford "mis1ed the Court regarding any unauthorized wiretaps," Dkt. 211 at 7 n.3, but the
Court declines to do so because it is sufficient that this Opinion rejects defendants’ allegations in
their entirety.
III. CONCLUSION
F0r the foregoing reasons, the Court denies defendants’ motions to suppress the
wiretap evidence. An Order consistent with this Opinion shall issue this same day.
SO ORDERED.
\
».¢»--
PAUL L. FRIEDMAN
United States District Judge
DATE; ;.f tab \\;,
26
with intent to distribute PCP ("PWID PCP"), in violation of 21 U.S.C. § 84l(a)(l); charges
Simmons and Fenwick with one count each of using a firearm in furtherance of a drug trafficking
crime, in violation of l8 U.S.C. § 924(0)(1); and charges Simmons with one count of felon in
possession of a firearm, in violation of l8 U.S.C. § 922(g)(l). M. at 4-6.
Defendants challenge the wiretap evidence on three primary grounds: (1) Agent
Wolford’s affidavits fail to demonstrate necessity under 18 U.S.C. § 2518(1)(0); (2) the FBI and
the MPD failed to minimize wiretap interceptions; and (3) Agent Wolford’s affidavits contain
reckless false statements or material omissions, entitling defendants to a hearing under Franks v.
Delaware, 438 U.S. 154 (1978) ("F ranks hearing"). The defendants suggest that, if any of these
challenges is meritorious, the Court must suppress all "fruits" of the wiretap evidence, such as
statements or physical evidence that the government obtained when executing arrest warrants for
which the wiretap evidence provided probable cause. §_e_e Ford Mot. at 8; Sanders Mot. at 2;
Simmons Mot. 2.3 Af``ter discussing some of the background principles underlying the federal
wiretap statute, the Court will address each of these challenges in turn.
II. DISCUSSION
A. Statutory Background
Title III of the Omnibus Crime Control and Safe Streets Act of l968, Pub. L. No.
90-351, 82 Stat. 197, 21 1-25 (codified as amended at 18 U.S.C. §§ 2510 §t_ §e_g.), established the
detailed procedures for the interception of wire, oral, or electronic communications. Among
3 Simmons’s motion argues only that, if the Court suppresses the wiretap evidence,
the Court must also suppress physical evidence and statements as "fruit of the poisonous tree."
§ee Simmons Mot. at 2. The Court previously reserved deciding this issue. §§ United States v.
fo_rd, No. 15-cr-0025, 2016 WL 362370, at *2 (D.D.C. Jan. 28, 2016). Grant, Hager, and Leach
join Simmons’s motion, Dkt. l45, 158 & 165, but it is moot as to Grant and Leach because they
have entered pleas of guilty. §§ United States v. Ramirez, 54 F. Supp. 2d 25, 27 (D.D.C. 1999)
(motions filed by defendants who "entered guilty pleas . . . therefore became moot").
other requirements, the statute requires that the government’s affidavit in support of the wiretap
application must contain an explanation of the facts and circumstances that the officer applying
for the wiretap believes justify the wiretap and a statement explaining the necessity of the
wiretap to the government's investigation. 18 U.S.C. § 25l8(l)(b)-(c). Before issuing the
wiretap order, a judge must determine that the wiretap is necessary for the investigation and that
there exists probable cause to believe that the target phone is or soon will be used in connection
with particular enumerated criminal offenses. 18 U.S.C. § 25l8(3)(c)-(d). Title III requires that
the court order authorizing the wiretap specify the nature and location of the communications
facilities to be wiretapped and contain a provision mandating that law enforcement minimize the
interception of communications that fall outside the scope of the wiretap order. 18 U.S.C.
§§ 25 1 8(4)(b), 25l8(5).
Norrnal Fourth Amendment search and seizure principles and "the judicially
fashioned exclusionary rule" developed by the case law do not describe the outer bounds of the
legitimacy of a wiretap. §§ United States v. Scurry, No. 12-3104, 2016 WL 1391995, at *8
(D.C. Cir. Apr. 8, 2016) (quoting United States v. Giordano, 416 U.S. 505, 524 (1974)). Title III
is more restrictive than the Fourth Amendment; it contains "its own exclusionary mandate." I_d.
at *3. The statute provides:
Whenever any wire or oral communication has been intercepted, no part of the
contents of such communication and no evidence derived therefrom may be
received in evidence in any trial, hearing, or other proceeding in or before any
court, grand jury, department, offrcer, agency, regulatory body, legislative
committee, or other authority of the United States, a State, or a political
subdivision thereof if the disclosure of that information would be in violation of
mae 111].
18 U.S.C. § 2515.
A defendant seeking to exclude wiretap evidence under this section "must have
Title III ‘standing,’ which Title III defines as ‘[a]ny aggrieved person in any trial, hearing, or
proceeding,’ 18 U.S.C. § 251 8(10)(a), who was a target of the wiretap or a person party to a
wiretap intercept, i_d. § 2510(11)." United States v. Scurry, 2016 WL 1391995, at *3. Any
"aggrieved person . . . may move to suppress" wiretap evidence and its fruits "on the grounds
that (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval
under which it was intercepted is insufficient on its face; or (iii) the interception was not made in
conformity with the order of authorization or approval." 18 U.S.C. § 25 IS(IO)(a)(i)-(iii); _s@
§§ United States v. Brodie, 742 F.3d 1058, 1062~63 (D.C. Cir. 2014).4 But "[s]uppression [of
the wiretap evidence] is required only when the government fails to comply with ‘those statutory
requirements that directly and substantially implement the congressional intention to limit the
use of intercept procedures to those situations clearly calling for the employment of this
extraordinary investigative device."’ United States v. Scurry, 2016 WL 1391995, at *8 (quoting
United States v. Giordano, 416 U.S. at 527). Those statutory requirements that "directly and
substantially irnplement" the intent of Congress _ at least so far as are relevant here _ include
necessity, probable cause, and minirnization. "Consequently, not every failure to comply with
Title III will warrant suppression under section 25l8(lO)(a)(i).” E.
In this case, defendants do not claim that the wiretap orders are facially
insufficient Rather, their arguments fall within the first and third statutory grounds for
4 The government does not challenge defendants’ standing as "aggrieved pers0ns"
in this case, nor could it. While Grant, Hager, and Sanders were "a party" to only some
interceptions and therefore have standing to suppress only those interceptions, § 18 U.S.C.
§ 2510(11), Simmons was "a party" to every interception and therefore has standing to suppress
the wiretap evidence in total. §§ Bill of Particulars at 3-70 (listing Simmons as a party to each
of the interceptions among the 624 over arts).
suppression. Defendants’ arguments that Agent Wolford’s affidavit (1) failed to demonstrate
necessity under 18 U.S.C. § 2518(1)(c) and (2) contained reckless falsehoods or material
omissions that entitle defendants to a I_``~_rLk_§ hearing both fall within 18 U.S.C. § 2510(a)(i) as
allegations that "the communication was unlawfully intercepted." Their argument that the F B1
and the MPD failed to minimize recordings under 18 U.S.C. § 2518(5) falls within 18 U.S.C.
§ 2510(a)(iii) as an allegation that "the interception was not made in conformity with the
[wiretap] order." The Court addresses the necessity and minimization arguments first before
tuming to probable cause and the request for a F ranks hearing.
B. Necessily
Tit1e III’s necessity requirement demands that the government’s affidavit in
support of a wiretap include "a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they reasonably appear to be unlikely
to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1)(c). The necessity requirement
applies equally to applications to extend a wiretap for additional 30-day periods. 18 U.S.C.
§ 2518(5); _s_e§ als_o 18 U.S.C. § 2518(3).
Defendants contend that Agent Wolford’s affidavits lack 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."’ Ford Mot. at 9
(quoting 18 U.S.C. § 2518(1)(0)); §e_€_: a_l§c_) Fenwick Mot. at 1-9; Sanders Mot. at 3-4.5 On
defendants’ view, Agent Wolford’s affidavits contained "boilerplate" recitations of what "would
5 Fenwick’s motion makes only the necessity argument It is moot as to him,
Leach, and Grant because they have all entered pleas of guilty. _S__eg United States v. Ramirez, 54
F. Supp. 2d at 27. The Court still considers the arguments raised in Fenwick’s motion, however,
because Simmons, Hager, and Sanders adopted it. §§ Dkt. 113, 145, 158 & 159.
be true in most narcotics investigations" and failed to show that law enforcement had "exhausted
all other possible investigative techniques before seeking approval" of a wiretap. Ford Mot. at
lO. They propose a number of investigative methods short of a wiretap that they allege could
have achieved the same results: (l) confidential sources and undercover officers, (2) controlled
purchases; (3) physical surveillance or searches; (4) flipping cooperating witnesses from an
earlier prosecution; (5) grand jury subpoenas; and (6) pen registers. Ford Mot. at 9-14; Ford
Reply at 20-23.
In assessing necessity, courts will "reject[] generalized and conclusory statements
that other investigative procedures would prove unsuccessful." United States v. Williarns, 580
F.2d 578, 588 (D.C. Cir. 1978). “Although intended to prevent over-reliance on wiretapping
authority, Title IIl's necessity requirement ‘was not designed to foreclose electronic surveillance
until every other imaginable method of investigation has been unsuccessfully attempted."’
United States v. Scurry, 2016 WL 1391995, at *13 (quoting United States v. Carter, 449 F.3d
1287, 1293 (D.C. Cir; 2006)). "[T]he government will meet its burden of demonstrating
necessity if it shows that other techniques are impractical under the circumstances and that it
would be unreasonable to require pursuit of those avenues of investigation." United States v.
Carter, 449 F.3d at 1293.
"In the conspiracy context, the necessity requirement ‘is satisfied when traditional
investigative techniques have proved inadequate to reveal the operation's full nature and scope,"’
United States v. Scurry, 2016 WL 1391995, at *13 (quoting United States v. Glover, 681 F.3d
411, 420 (D.C. Cir. 2012)), or "the government tried to gather information about the defendant in
other ways." United §tates v. Glover, 583 F. Supp. 2d 2l, 36-37 (D.D.C. 20()8). ln United
States v. Scurry, the D.C. Circuit explained that it "has repeatedly upheld necessity
determinations" in drug conspiracy cases where the affidavit in support of the wiretap detailed
the investigative steps that law enforcement took and why those steps "failed to disclose the full
nature and scope of the narcotics-trafficking enterprise." 2016 WL 1391995, at *13; ge a_ls_g
United States v. Carte``r, 449 F.3d at 1293-94 (affidavit describing only physical surveillance met
necessity requirement because it contained a detailed explanation of why other investigative
techniques "would be inadequate to reveal the ‘full nature and scope’ of the drug conspiracy");
United States v. Sobamowo, 892 F.Zd 90, 93 (D.C. Cir. 1989) (affidavit describing undercover
work, records examination, and physical surveillance in drug conspiracy investigation met
necessity requirement because "the govemment . . . was not required to enumerate every
technique or opportunity missed or overlooked").
Here, Agent Wolford’s first and second affidavits enumerate every technique that
defendants charge that the government should have pursued and amply demonstrate that the
wiretaps were necessary by explaining why each of defendants’ proffered alternative
investigative methods would be either ineffective or unsafe. Opp. at 14-23.
l. Confidential Sources Undercover Officers and Controlled Purchases
In his first affidavit, Agent Wolford stated that the further use of confidential
sources, undercover officers, and controlled purchases "would not . . . result in a successful
prosecution of all members" of the conspiracy because "narcotics distributors . . . do not reveal
their source of supply to customers for fear of being cut out of future drug sales," "[n]or do
[they] reveal their stash locations to customers for fear of having their drugs or proceeds stolen,
or the location being given to law enforcement officers." First Wolford Aff. 1111 55, 67. Agent
Wolford explained that law enforcement’s best confidential source in this case, "CS #l" was
"not in a position to deal directly with SIMMONS’ suppliers," and "[t]o task CS #l to inquire as
to the identity of SIMMONS’ source of PCP supply would arouse suspicion and potentially place
CS #l in danger." Q. 11 56. Agent Wolford also identified a unique limitation on further use of
CS #l in this investigation: "the suspected PCP from the Znd controlled narcotics purchase did
not test positive at the DEA laboratory. This indicated that SIMMONS sold CS #l fake PCP.
To attempt another controlled purchase from SIMMONS with CS#l would arouse SIMMONS’
suspicion that CS #l was working with law enforcement." E. He further explained that
"[a]nother serious obstacle" to using cooperating sources or informants is that the narcotics
distribution business is "stratified," meaning Simmons does not "deal with [his] customer’s
customers" in order to prevent "his customers [from] cut[ting] him, the ‘middle man,’ out of the
deal." l_c_l. 11 58. Confidential sources, undercover officers, and controlled purchased therefore
could not yield information about "other purchasers, sources of supply, shipment of drugs, stash
locations, and methods of operation used by SIMMONS and his organization." j_.
Agent Wolford affirmed that the limitations of confidential sources, undercover
officers, and controlled purchases continued to exist in April 2014 at the time of his affidavit in
support of the second_order authorizing wiretap interceptions. Second Wolford Aff. 111 3()-31.
He explained that the wiretap interceptions "indicate[d] that SIMMONS deals with the same
customers he has known and trusts, or individuals who are referred (or sponsored) to him from
very close and reliable individuals," and that "agents have been unable to conduct [additional]
controlled purchases from SIMMONS." I_d. il 3 l.
2. Physical Surveillance or Searches
In his first affidavit, Agent Wolford stated that physical surveillance cannot
succeed in isolation because it "leaves the investigators with insufficient evidence to prove the
purpose of the meetings or other activity" that they observe. First Wolford Aff. 1[ 60. Agent
10