United States v. Happy Asker
676 F. App'x 447
| 6th Cir. | 2017Background
- Happy Asker founded and expanded Happy’s Pizza into a multi-state franchise; investigators suspected franchises were used to launder drug proceeds and underreport income/payroll.
- DEA obtained a wiretap on Arkan Summa’s phone (June 2010) based on an affidavit by Agent Swincicki that relied on intercepted calls, informants, surveillance and a trash pull of corporate HQ.
- Wiretap intercepts and follow-up evidence led to a search warrant for Happy’s Pizza corporate offices (August 2010); agents seized extensive financial records showing dual sets of books and cash distributions.
- Asker was indicted on conspiracy, filing false tax returns, and obstructing IRS administration; co-defendants pleaded guilty but Asker proceeded to trial.
- Asker moved to suppress: (1) wiretap evidence (arguing misrepresentations about drug quantities and code words), and (2) search-warrant evidence (arguing reliance on the wiretap and overbroad “all-records” scope).
- At trial Asker sought a one-day continuance after late disclosure of Exhibit 597 (a spreadsheet from his own seized hard drive) and objected to a deliberate-ignorance jury instruction; he was convicted on all counts and sentenced to 50 months.
Issues
| Issue | Plaintiff's Argument (Asker) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Validity of wiretap (probable cause & necessity) | Affidavit mischaracterized Chaldean term “bisla” and references to “half” to inflate trafficking scope; misrepresentations vitiate probable cause and necessity | Affidavit contained abundant corroborating evidence (many intercepts, CI reports, surveillance, trash pull); necessity concerns investigative alternatives, not drug quantity; magistrate had substantial basis | Affirmed: magistrate had probable cause; necessity requirement satisfied; any error in admitting Asker’s one tapped call was harmless |
| Suppression of search-warrant evidence | Warrant affidavit relied on tainted wiretap and misstated drug quantities; warrant was overbroad (all-records seizure) | Even excluding challenged statements, affidavit contained independent CI, surveillance, trash-pull and tax data supporting probable cause; warrant targeted records tied to laundering; good-faith exception applies if overbroad | Affirmed: probable cause stood absent challenged statements; warrant was adequately particular or, alternatively, good-faith exception applies |
| Denial of continuance for late-disclosed Exhibit 597 | One-day continuance needed to prepare to address spreadsheet showing cash splits for stores not in indictment; denial prejudiced defense | Exhibit came from Asker’s own seized hard drive and hard-drive image had been previously produced; Asker did not identify witnesses or new evidence he would have obtained | Affirmed: denial not an abuse of discretion and Asker failed to show prejudice |
| Jury instruction — deliberate ignorance | Instruction inappropriate because record shows mere lack of knowledge, not conscious avoidance; would dilute government’s burden | Evidence supported inference Asker deliberately avoided learning about fraudulent finances (control over corporate office, receipt of cash splits, hiring accountants); instruction follows Circuit pattern and is harmless if erroneous | Affirmed: instruction permissible under Sixth Circuit (facts supported instruction); any error would be harmless given alternative evidence of actual knowledge |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (requires strong preliminary showing of intentional or reckless falsehood in affidavit to obtain evidentiary hearing and possible suppression)
- United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to exclusionary rule for objectively reasonable reliance on a warrant)
- Dalia v. United States, 441 U.S. 238 (1979) (necessity requirement preserves wiretapping for genuine need and limited scope)
- United States v. Alfano, 838 F.2d 158 (6th Cir. 1988) (probable cause and magistrate deference; necessity need not show exhaustion of every technique)
- United States v. Bennett, 905 F.2d 931 (6th Cir. 1990) (Franks burden described as a heavy burden requiring allegations and offer of proof)
- United States v. Poulsen, 655 F.3d 492 (6th Cir. 2011) (wiretap necessity analysis and use of other investigative techniques)
- United States v. Mitchell, 681 F.3d 867 (6th Cir. 2012) (deliberate-ignorance instruction to be used sparingly; requires evidence supporting deliberate avoidance)
- United States v. Rayborn, 491 F.3d 513 (6th Cir. 2007) (deliberate-ignorance instruction unsupported by evidence is harmless error)