United States v. Gordon
2017 U.S. App. LEXIS 17423
| 1st Cir. | 2017Background
- DEA-led task force investigated a Lewiston, Maine drug ring (leaders: Romelly Dastinot and Jacques Victor); controlled buys and cooperating sources implicated Dimitry Gordon as a lower-level seller.
- After conventional techniques (controlled buys, surveillance, phone records, confidential sources, subpoenas) failed to identify suppliers, organization, and assets, the government sought and obtained multiple wiretap orders (targeting TT1, TT2, TT5) based on affidavits by DEA Agent Joey Brown.
- Wiretap orders tracked phones by ESN/IMEI (to capture number changes) and authorized interception of background conversations; minimization procedures and monitoring protocols were set and statistical reports were filed with the court.
- The wiretaps produced ~23,000 intercepted communications (many in Haitian Creole); the government reported that 14% of calls longer than two minutes were minimized in some way.
- Gordon moved to suppress the wiretap evidence and requested (1) a general evidentiary hearing on minimization and (2) a Franks hearing alleging false statements in the affidavits; the district court denied suppression and both hearing requests; Gordon pleaded guilty conditionally and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Particularity of wiretap orders under 18 U.S.C. § 2518(4) | Orders too broad: authorized interception by ESN/IMEI and background conversations; agency identification was vague | Orders tracked specific serial numbers and identified DEA as executing agency; background-language is standard and permissible | Affirmed: orders were sufficiently particular; any loose agency wording was not a substantial statutory violation requiring suppression |
| Necessity of wiretaps under Title III | Wiretaps unnecessary; government failed to exhaust or adequately try alternatives | Government conducted wide-ranging, good-faith investigation and reasonably rejected other techniques (e.g., undercover placement, camera installation, cell-site data limitations) | Affirmed: affidavits were minimally adequate to show necessity in context; wiretapping was reasonable next step |
| Minimization compliance under 18 U.S.C. § 2518(5) | Government failed to minimize irrelevant conversations (high percentage of unminimized calls) | Complex conspiracy, foreign language/code usage, and procedural safeguards justified broader monitoring; no specific examples of prejudicial failures identified | Affirmed: minimization practices and supervision were adequate; no blanket suppression warranted |
| Requests for evidentiary hearings (general and Franks) | Needed hearings to resolve disputed facts about minimization and alleged false statements in affidavits | District court had sufficient paper record; challenged affidavit statements were opinions or reasonably based factual judgments | Affirmed: no abuse of discretion denying a general hearing; no substantial showing for a Franks hearing |
Key Cases Cited
- Gelbard v. United States, 408 U.S. 41 (1972) (Title III protects privacy and prescribes conditions for interceptions)
- United States v. Giordano, 416 U.S. 505 (1974) (suppression required only for failures that directly and substantially implement congressional limits)
- Scott v. United States, 436 U.S. 128 (1978) (minimization requirement and flexibility in oversight)
- United States v. Santana, 342 F.3d 60 (1st Cir. 2003) (wiretap application must be minimally adequate)
- United States v. Villarman-Oviedo, 325 F.3d 1 (1st Cir. 2003) (necessity and exploration of investigative alternatives)
- United States v. Hoffman, 832 F.2d 1299 (1st Cir. 1987) (wiretapping is the exception; latitude allowed in complex conspiracies)
- United States v. Rodrigues, 850 F.3d 1 (1st Cir. 2017) (approval of wiretap orders based on good-faith necessity assertions)
- United States v. Uribe, 890 F.2d 554 (1st Cir. 1989) (practical, commonsense necessity standard)
- United States v. López, 300 F.3d 46 (1st Cir. 2002) (minimization procedures and civilian monitors disclosure)
- United States v. Martinez, 452 F.3d 1 (1st Cir. 2006) (permissible broad investigatory goals in wiretap affidavits)