UNITED STATES of America, Appellee v. Eric SCURRY, also known as E, Appellant.
Nos. 12-3104, 12-3105, 12-3109, 13-3055, 13-3068.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 3, 2015. Decided April 8, 2016.
Daniel J. Lenerz, Attorney, U.S. Attorney’s Office, argued the cause for appellee. On the brief were Vincent H. Cohen Jr., Acting U.S. Attorney, and Elizabeth Trosman, David B. Goodhand, and Arvind K. Lal, Assistant U.S. Attorneys. Elizabeth H. Danello, Assistant U.S. Attorney, entered an appearance.
Before: ROGERS and PILLARD, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge:
The principal question presented in this appeal is whether Title III of the
I.
In July 2009, the Federal Bureau of Investigation (“FBI”) began an investigation
On April 2, 2010, the FBI submitted an application and proposed order, which was signed by the district court, for a 30-day wiretap on Scurry’s cell phone, an order later extended for another 30-day period. Based on evidence obtained from Scurry’s tapped calls, the FBI on June 11, 2010, applied for and received court authorization to tap two cell phones associated with Terrance Hudson, whom investigators had identified as part of the same narcotics-trafficking conspiracy as Scurry. Hudson’s phone calls, in turn, suggested that Robert Savoy was one of his cocaine suppliers, and on July 22, 2010, the FBI obtained a wiretap court order for two cell phones associated with Savoy. Those
Appellants were indicted for various drug-trafficking offenses. After the district court denied their motions to suppress the wiretap evidence against them, United States v. Savoy, 883 F.Supp.2d 101 (D.D.C.2012), and Savoy’s motion for reconsideration, appellants entered conditional guilty pleas pursuant to
II.
Title III of the
The wiretap authorization process here entails four steps. First, the wiretap application must be pre-approved by one of the statutorily identified high-level Justice Department officials; specifically including the Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, or any acting Assistant Attorney General, aswell as certain Deputy Assistant Attorneys General specially designated by the Attorney General. See
Second, the government must submit the application, under oath or affirmation, to a judge of competent jurisdiction and state the applicant’s authority to make such application.
Third, before issuing the ex parte wiretap order, as requested or modified, a judge must make certain determinations based on the facts submitted by the applicant,
Fourth, the judge issues an order approving the wiretap. Title III limits the length of the interception period to that “necessary to achieve” the wiretap’s objective, with an initial maximum 30-day period subject to renewal upon submission of a new application.
Title III includes its own exclusionary mandate. Section 2515 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, officer, 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 [Title III].
A.
No party disputes that the court orders authorizing the wiretaps on Hudson andJohnson’s cell phones fail to identify the officials who pre-approved the underlying applications. The orders specify a type of official authorized to pre-approve wiretap applications, namely, a Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General. See
1. To determine whether a wiretap order is facially insufficient, a reviewing court must examine the four corners of the order and establish whether, on its face, it contains all that Title III requires it to contain. See United States v. Chavez, 416 U.S. 562, 573-74 (1974); United States v. Giordano, 416 U.S. 505, 525 n. 14 (1974). If the order complies with the requirements of Title III, it is “[s]ufficient on its face”; if it does not comply with those requirements, it is “insufficient on its face.” See
There can be little question that each of the Hudson and Johnson orders is “insufficient on its face,” see
In resisting suppression, the government views the interpretation of subsections 2518(4)(d) and (10)(a)(ii) compelled by the text as adopting an overly formalistic approach. It urges the court to hold that a court wiretap order is not facially insufficient where essential information required by Title III is missing from the order so long as other materials submitted to the judge who issued the order supply the missing detail. Here, the application for the Hudson wiretap states that “Bruce C. Swartz, Deputy Assistant Attorney General of the Criminal Division, has authorized this Application” and includes as an attachment a copy of Deputy Swartz’s signed letter approving the application. Similarly, the Johnson application includes as an attachment a signed letter of Kenneth A. Blanco, whom the letter identifies as a Deputy Assistant Attorney General in the Criminal Division, approving the application.
But, as noted, Title III’s facial sufficiency inquiry is limited to the four corners of the wiretap order. See Chavez, 416 U.S. at 573-74; Giordano, 416 U.S. at 525 n. 14. There is something incongruous about an interpretation that would let extrinsic documents transform an order that is “insufficient on its face” into one that is sufficient “on its face.” See
To the extent Title III’s two identification requirements are functionally redundant, it is clear that “Congress could sensibly have seen some practical value in the redundancy.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 445 (1995) (Souter, J., dissenting); cf. Nat’l Ass’n of Clean Water Agencies v. EPA, 734 F.3d 1115, 1126 (D.C.Cir.2013). The deliberations leading up to the passage of Title III reveal deep unease over the risk to privacy interests inherent in granting wiretapping authority to law enforcement. With telecommunications technology—and alongside it eavesdropping technology—evolving rapidly, members of Congress feared that “if [Title III] is successful, today’s narrowing enclave of individual privacy will shrink to the vanishing point.” S.Rep. No. 90-1097, at 171 (1968) (additional views of Sen. Hart). The President and the Attorney General expressed serious misgivings about a wiretap statute, with the Attorney General testifying that wiretaps posed a risk to privacy “too great to permit their exploitation even by Government agents acting in the name of law enforcement.” Anti-Crime Program: Hearings Before Subcomm. No. 5 of the H. Comm. on the Judiciary, 90th Cong. 209 (1967).
The identification requirements buttress this core bulwark against unwarranted intrusions into private conversations. As the Supreme Court has observed, “[t]here is little question that [the identification requirements] were intended to make clear who bore the responsibility for approval of the submission of a particular wiretap application.” Chavez, 416 U.S. at 571-72; see also S.Rep. No. 90-1097, at 101, 103. This ex post check on the misuse or overuse of wiretaps, in turn, also operates as an ex ante constraint on executive branch conduct. Congress could reasonably conclude that a high-level Justice Department official, who is already prone to caution given the level of responsibilities attendant to the high position, will tread even more cautiously when reviewing proposed wiretap applications if the official is individually identified as having approved the application. Insisting on individual identification in both the application and the order accords with Congress’s intent “to make doubly sure that the statutory [wiretap] authority be used with restraint.” Giordano, 416 U.S. at 515.
Furthermore, in functional terms, Title III’s doubled identification requirements are not redundant. Title III contains evidence of Congress’s intent that the order—independent of the application—be the operative document in the field. One sign of this intent is that all the information contained in the order is also contained in the application. Compare
Each identification requirement, then, has a distinct audience in the Title III process. “Requiring identification of the authorizing official in the application facilitates the court’s ability to conclude that the application has been properly approved under
The government also contends that the Hudson and Johnson orders are facially sufficient because they identified the title of the person or the general category of official who authorized the underlying application. Alternatively, the government resorts to grammatical niceties. Each order states that the government sought the order “pursuant to an application authorized by ... [a] Deputy Assistant Attorney General of the Criminal Division ... pursuant to the power delegated to that official by special designation of the Attorney General” (emphasis added). In the government’s view, the use of the demonstrative adjective “that” before the noun “official” makes it reasonably believable that a single, individual Deputy Assistant Attorney General authorized the application.
The same reasoning undercuts both of the government’s arguments. Title III requires that the wiretap order provide the “identity ... of the person” who authorized the application.
Finally, the government contends that “[a]t worst, the authorizing orders’ typographical errors rendered them ‘imperfect’ ... but not facially insufficient.” Appellee’s Br. 26-27 (citing Glover, 736 F.3d at 515). The government is correct that Glover, 736 F.3d at 515, left open the possibility that a “technical defect” in a wiretap order might not rise to the level of facial insufficiency, but rather would render the order “imperfect.” But the omissions in the Hudson and Johnson orders are not merely technical defects. The government failed to include in the proposed orders information expressly required by Title III. See
For these reasons, we agree with the district court that the Hudson and Johnson orders are facially insufficient under
2. The question remains whether suppression pursuant to section 2515 is the appropriate remedy here. “The issue does not turn on the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights, but upon the provisions of Title III.” Giordano, 416 U.S. at 524. Title III sets out three grounds for suppression,
The Supreme Court, however, pursued an altogether different methodological tack in analyzing the scope of the facial-insufficiency ground of section 2518(10)(a)(ii). As this court recently explained, in Giordano and Chavez,
The government objects that the omissions in the Hudson and Johnson orders do not warrant suppression because the wiretap orders satisfy the functional “core concerns” test for suppression under the unlawfully intercepted ground of section 2518(10)(a)(i). That is, the record accompanying the wiretap applications submitted to the district court shows that a Deputy Assistant Attorney General in fact approved each of the applications. The Hudson and Johnson wiretaps therefore were not “unlawfully intercepted” within the meaning of section 2518(10)(a)(i). See Chavez, 416 U.S. at 574-80; cf. Giordano, 416 U.S. at 527-28. But that is irrelevant to the suppression inquiry under the facial-insufficiency ground of section 2518(10)(a)(ii). Title III provides for suppression in any one of three different circumstances, set forth in three separate subparagraphs separated by the disjunctive conjunction “or.”
The government’s reliance on out-of-circuit cases declining to suppress wiretap evidence in circumstances like those here, see Appellee’s Br. 20-22 n. 11, is misplaced. In those cases, courts have reasoned that section 2518(10)(a)(i)’s “core concerns” test can excuse orders that are facially insufficient under section 2518(10)(a)(ii). See, e.g., Traitz, 871 F.2d at 379-80; United States v. Robertson, 504 F.2d 289, 291-92 (5th Cir.1974); United States v. Gray, 521 F.3d 514, 524-28 (6th Cir.2008); United States v. Callum, 410 F.3d 571, 574-76 (9th Cir.2005); United States v. Radcliff, 331 F.3d 1153, 1161-63 (10th Cir.2003). This panel is bound by the rejection of this approach in Glover, 736 F.3d at 513, where the court declined to import the “core concerns” test into the facial-insufficiency context. See Belbacha v. Bush, 520 F.3d 452, 457 (D.C.Cir.2008); LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996) (en banc). The Glover court’s reasoning is, in any event, faithful to both Supreme Court precedent and the text of Title III.
For these reasons, we reverse the district court’s denial of the motions to suppress
B.
Next, appellants contend that the district court erred by not interpreting the word “facilities” in sub-sections
Title III requires that ordinary wiretap applications include “a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted.”
Title III does not define what is meant by the “facilities” targeted by the wiretap. But three considerations, based on the structure, purpose, and legislative history of Title III, see N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995), persuade us that Congress intended the word “facilities” in sub-sections
Here, the information in the wiretap applications and orders at issue is sufficient to identify the “nature and location” of the targeted cell phones. Although Title III does not establish a minimum quantum of information necessary to identify the “nature and location” of a telephone targeted by a wiretap, the particularity requirement under the Fourth Amendment provides a useful guide to Congress’ intent. See S.Rep. No. 90-1097, at 101-03. Each application and order specified the telephone number of the targeted cell phone, a serial number identifying the physical device associated with the target phone number, the identity of the service provider, and the name and address of the subscriber. With all of that information in hand, there is no basis to conclude an officer or service provider would find it difficult to identify the target phone or tap the wrong phone. Cf. Johnson, 437 F.3d at 73. Our sister circuits are in accord. See United States v. Oliva, 705 F.3d 390, 400-01 (9th Cir.2012); United States v. Goodwin, 141 F.3d 394, 403 (2d Cir.1997). Appellants’ strained readings of Title III’s definitions and case law interpreting other statutes are unavailing. It would be difficult to conclude from their arguments that Congress would resort to minor grammatical distinctions and subtle statutory alterations—with no accompanying explanation or comment—in order to institute as dramatic a change as a cell-phone carve out from Title III’s ordinary requirements. Because the applications and orders satisfied the facility-identification requirements of sub-sections
C.
Finally, appellants’ challenges to the Scurry wiretaps are unpersuasive.
1. Appellants maintain that the application for the initial Scurry wiretap did not establish probable cause to believe the target phone was being or would be used to commit specified drug offenses. See Savoy, 883 F.Supp.2d at 108-09. This challenge arises from the government’s efforts to keep current on Scurry’s cell phone habits. FBI Special Agent Christopher Fiorito had originally prepared an affidavit seeking a wiretap on a phone whose number ended in 9231 (the “9231 phone”). Fiorito abandoned that wiretap request, however, after he learned that Scurry had stopped using the 9231 phone. The wiretap application that was authorized was for a phone whose number ended in 7790 (the “target phone”). Appellants concede that the Fiorito affidavit furnishes probable cause to justify a wiretap on the 9231 phone, but object that the government failed to demonstrate probable cause to believe Scurry was using or would use the target phone to further his alleged narcotics-trafficking crimes. See
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 a crime will be found in a particular place.” Eiland, 738 F.3d at 347 (alterations omitted) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). A reviewing court gives deference to the authorizing court’s probable cause determinations. Johnson, 437 F.3d at 71.
The evidence proffered in the 56-page Fiorito affidavit demonstrates that there was a “fair probability” that the target phone was being and would be used to commit the specified narcotics offenses. Scurry and one of the government’s cooperating witnesses (“Witness 2”) had a months-long history of coordinating drug transactions by phone, including the 9231 phone. In February 2010, after federal agents had been investigating Scurry for several months, they learned from Witness 2 that Scurry had acquired a new phone, which they identified as the target phone. On March 11, Witness 2 received five calls from the target phone. During one of those calls, Scurry arranged to sell crack to Witness 2, a sale that took place the next day through one of Scurry’s associates, acting at Scurry’s behest. Around the same time Scurry began calling Witness 2 on the target phone, he largely stopped using the 9231 phone. Fiorito attests that, based on his experience, drug traffickers frequently switch phones to avoid police detection. Toll records revealed that the target phone was in contact with 75 phone numbers with which the 9231 phone had also been in contact. Of those, several numbers belonged to known associates of Scurry. According to Witness 2, another cooperating witness (“Witness 1”), and law enforcement surveillance, three of these associates were involved in selling drugs with or in the same area as Scurry. Although Witness 2 has had some veracity problems, Fiorito swore that Witness 1 was reliable and had never provided false information over three years of cooperating with the FBI.
Appellants hinge their challenge on a repeated error in the Fiorito affidavit.
2. Appellants maintain that the district court erred when it determined that the Fiorito affidavit satisfied Title III’s necessity requirement,
The Fiorito affidavit demonstrates that the authorizing judge did not abuse his discretion when he found that the first Scurry wiretap was necessary. Fiorito lists the investigative tools the FBI had already deployed, including physical surveillance, the use of confidential informants, analysis of pen-register and GPS-tracking data, and controlled narcotics purchases. But, he adds, these tools had failed to disclose the full nature and scope of the narcotics-trafficking enterprise operating in the Second Court. Physical surveillance, GPS tracking, and pen registers let the FBI know that Scurry was in contact with other potential suspects, but those tools told investigators little about the nature of Scurry’s interactions. Confidential informants, for their part, had limited access to co-conspirators. Fiorito also attests to the insufficiency of investigative techniques short of a wiretap. A number of techniques risked revealing the existence of the investigation to its targets and putting government cooperators in harm’s way: interviews with Scurry’s associates, a search of one of Scurry’s stash houses,
Appellants’ counterarguments amount to little more than second-guessing how the government ought to run its investigations and prosecute drug crimes. They maintain that the government could have searched Scurry’s known stash house or prosecuted Scurry on the evidence of controlled narcotics transactions alone. That assertion runs counter to the law of this circuit on the scope of Title III’s necessity requirement in the conspiracy context. See (Ernest) Glover, 681 F.3d at 420. Appellants also challenge the Fiorito affidavit on the ground that it failed to mention an earlier, unsuccessful prosecution of Scurry on drug charges. The fact of the earlier prosecution, they contend, might have led the authorizing judge to take a different view of whether the wiretap was necessary. Moreover, appellants suggest, it might have led the judge to worry that a desire for retribution—rather than necessity—lay behind the government’s wiretap application. Appellants never raised this argument in the district court. See Scurry Mot. to Suppress at 5-6 (Oct. 14, 2011); Savoy, 883 F.Supp.2d at 109-10. Although our precedent is unclear as to the appropriate standard of review in these circumstances, compare Eiland, 738 F.3d at 350, with United States v. Peyton, 745 F.3d 546, 551 (D.C.Cir.2014), under any standard appellants’ challenge fails. If anything, the government’s loss in the first case—a comparably simple case involving two counts of distribution—underscores the need for additional investigative tools. As for evidence suggesting retributive motivation or bias on the government’s part, appellants point to none.
3. Appellants maintain that the agents executing the Scurry wiretaps failed to comply with Title III’s minimization requirement,
Accordingly, we reverse the denial of the motions to suppress the Hudson and Johnson wiretap evidence, remand the case for further proceedings, and otherwise affirm.