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United States v. Wilson

United States District Court, D. Delaware

March 13, 2018

BRIAN WILSON, et al., Defendants.



         At Wilmington this 13th day of March, 2018, having considered Defendant Brian Wilson a/k/a "Fudayl Wakim" a/k/a "B-Wills"'s ("Wilson")[1] Motion to Suppress Intercepted Wire and Electronic Communications and All Evidence Adduced from Interception of Wire and Electronic Communications (D.1.100) and Motion to Quash the Indictment (D.I. 101); Defendant Robert Shepherd a/k/a "Manny" a/k/a "Jig" a/k/a "Majid'"s ("Shepherd") Motion to Suppress (D.I. 98), Motion to Quash the Indictment (D.I. 98), and Motion to Transfer (D.I. 98); and Defendant Mark Bower a/k/a "Kenneth Flowers'"s ("Bower")[2] Motion to Suppress Evidence (D.I. 39), IT IS HEREBY ORDERED that Wilson's suppression motion (D.I. 100) and motion to quash (D.I. 101) are DENIED; Shepherd's suppression motion (D.I. 98), motion to quash (D.I. 98), and transfer motion (D.I. 98) are DENIED; and Bower's suppression motion (D.I. 39) is DENIED.

         Wilson's Suppression Motion

          1. Wilson is charged with conspiracy to distribute and to possess with intent to distribute cocaine (Count 1) and conspiracy to distribute and to possess with intent to distribute heroin (Count 2). (See D.I. 64 at 1-3) On October 13 and 14, 2016, Judge Robinson authorized the interception of three Target Telephones ("TT") belonging to Wilson ("TT1, " "TT2, " and "TT3"). (See D.I. 118 at 2; see also, e.g., D.I. 118 Ex. 2 at2-ll of 96 ("Initial Intercept Orders")) The government's applications for TT1, TT2, and TT3 were each accompanied by the same 67-page affidavit by FBI Special Agent Shawn Haney ("SA Haney"). (See D.I. 118 at 2 n.3; see also, e.g., D.I. 118 Ex. 2 at 25-91 of 96 ("Initial Affidavit")) The Initial Affidavit explained that the FBI had been investigating an alleged drug-trafficking organization in Delaware known as the "B WILLS Crew" and had developed a number of suspects, the "Target Subjects." (See Initial Affidavit ¶¶ 24-33, 47) Additionally, the Initial Affidavit listed nine "Target Objectives" for the wiretaps, including obtaining evidence of "[t]he nature, extent, and methods of operation" of the B WILLS Crew, "[t]he locations where the controlled substances are stored, " "[t]he identities of co-conspirators" and "sources of supply, " and "[t]he location and source of resources used to finance the illegal activities." (Id. ¶ 35)

         2. On October 31, 2016, Judge Robinson issued two additional intercept orders, one for Wilson's fourth telephone ("TT4") and one for the telephone of Wilson's co-defendant, Thomas Brooks ("Brooks") ("TT5"). (See D.I. 118 at 2; see also, e.g., D.I. 118 Ex. 3 at 73-82 of 87 ("Second Intercept Orders")) The government's applications for TT4 and TT5 included an updated affidavit from SA Haney. (See D.I. 118 at 2 n.3; see also D.I. 118 Ex. 3 at 2-72 of 87 ("Second Affidavit")) Like the Initial Affidavit, the Second Affidavit included information about its Target Subjects and Target Objectives. (See Second Affidavit ¶¶ 23-28, 30) The wiretaps lasted approximately six weeks, concluding around November 24, 2016. (See D.I. 100 at 3)

         3. Wilson moves to suppress wiretap evidence collected from TT1-TT5[3] pursuant to Title in of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-22, on four grounds: (1) the wiretaps were not supported by probable cause; (2) the government failed to show necessity; (3) the wiretaps were required to cease no later than October 24, 2016; and (4) the government failed to reasonably minimize. (See generally D.I. 100) The Court heard argument on Wilson's motion on January 12, 2018. ("Tr.")

         Probable Cause

          4. Wilson contends that the wiretap evidence must be suppressed because the government's applications relied on stale and uncorroborated confidential informant information, thereby failing to establish probable cause. (See D.L 100 at 3-4; D.L 125 at 1-3)

         5. Under Title III, a judge may authorize interception of wire and electronic communications if, based on the government's application, the judge determines there is probable cause (1) "that an individual is committing, has committed, or is about to commit" an enumerated offense; (2) "that particular communications concerning that offense will be obtained through such interception;" and (3) that the "facilities" or "place" where the intercepts are to occur - that is, the phone - are connected to the offense or associated with the individual. See 18 U.S.C. § 2518(3)(a)-(b), (d); United States v. Urban, 404 F.3d 754, 774 (3d Cir. 2005). The probable cause requirements of Title III are governed by the same law as traditional Fourth Amendment searches. See United States v. Tehfe, 722 F.2d 1114, 1118 (3d Cir. 1983). Whether probable cause exists is a "flexible" standard that requires "practical, common sense" decisionmaking by the issuing court. See Illinois v. Gates, 462 U.S. 213, 238-39 (1983). The issuing judge's probable cause determination is entitled to "great deference" and will be upheld so long as the judge had a "substantial basis" for concluding probable cause existed as to the Title III requirements. See Id. at 236 (internal quotation marks omitted).

         6. Here, the issuing court had a substantial basis for concluding each wiretap application established probable cause for each Title III requirement. For TT1-TT3, the Initial Affidavit contains information from seven confidential sources ("CS-l-CS-7") and ten controlled purchases of heroin and/or cocaine. (See Initial Affidavit ¶¶ 50-78) The confidential sources provided information about Wilson's involvement in drug trafficking, including the types of drugs Wilson was selling (heroin and cocaine), the suspected locations of Wilson's suppliers (Philadelphia, PA) and customers (south of Wilmington), his preferred quantities of distribution, and common meet-ups for drug transactions. (See, e.g., Id. ¶¶ 54-56) The Initial Affidavit also details the execution of the ten controlled purchases, all of which were coordinated using TT1-TT3. (See Id. ¶¶ 60-78) First-hand observation by federal agents of FaceTime calls, toll record analysis, pen register information, and physical surveillance revealed Wilson using TT1 and TT3 to arrange the majority of the controlled purchases. (See Id. ¶¶ 61-70, 75-77; see also, e.g., Id. ¶¶ 68, 76 (explaining, in SA Haney's opinion, callers' use of coded language)) As to TT2, the Initial Affidavit explains that CS-5 informed federal agents that Wilson had acquired a new phone, and a subsequent controlled purchase and an attempted controlled purchase were arranged by Wilson using TT2. (See id ¶¶72, 75, 79) Based on this information, the issuing court had more than a substantial basis to conclude Wilson was engaged in drug trafficking activity and was using TT1-TT3 to do so.

         7. Wilson's probable cause challenge fares no better for TT4 and TT5. The Second Affidavit incorporates the Initial Affidavit by reference and includes new evidence of Wilson arranging, carrying out, and following up on drug sales by phone. (See Second Affidavit ¶¶ 46, 53-76) For TT4, the Second Affidavit details calls from Wilson (using TT3 and TT4) to others informing them that he has a new phone number, TT4, and to no longer use TT3. (See id ¶¶ 89-90) (recounting Target Subject saying to Wilson, "I'm ready for our situation" and Wilson responding, "Alright. . . . I'm getting ready to call you from my new number [TT4].") As to TT5, toll record analysis, pen register information, and agent-monitored phone calls revealed Brooks using TT5 during both an attempted and a successful controlled purchase. (See id ¶¶ 51-52) Additionally, the Second Affidavit describes multiple intercepted calls from Wilson (on TT3) to Brooks (on TT5) discussing heroin sales. (See Id. ¶¶ 77-84) (explaining coded conversations) Given that information, the issuing court had a substantial basis to conclude Wilson and Brooks were engaged in drug-trafficking activity and were using TT4 and TT5 to that end.

         8. Wilson's staleness contentions do not defeat these conclusions. Where, like here, a wiretap application alleges continuous criminal activity, the concept of staleness is less easily applied and carries less force. See Tehfe, 722 F.2d at 119-20. Though Wilson is correct that the government's first confidential source dates back to October 2013 (see Initial Affidavit ¶ 40), that fact simply indicates the long-running nature of Wilson's alleged drug-trafficking activity. Moreover, the October 2013 interview is far from the only information in the Affidavits that establishes probable cause. Indeed, the overwhelming majority of the information in the Initial Affidavit was developed between May and late September 2016, just weeks before the Initial Intercept Orders were authorized. (See Id. ¶¶ 50-79) That information, particularly in the context of this long-running investigation, was not stale. See Tehfe, 722 F.2d at 1120 (requiring staleness to be construed liberally when alleged criminal operation is "one of several years standing"). Likewise, the Second Affidavit, which was updated with information collected during the two weeks between the Initial and Second Affidavits, was not outdated. (See, e.g., Second Affidavit ¶¶ 77-89)

         9. Wilson's contention that the Affidavits relied on uncorroborated confidential source information is also unavailing. While an informant's reliability and knowledge are important considerations in determining probable cause, they must be considered under the totality of the circumstances. See Gates, 462 U.S. at 238 (overruling two-prong test of Spinelli v. United States, 393 U.S. 410 (1969)). Important to that analysis is the "corroboration of details of an informant's tip by independent police work." Id. at 241. Though Wilson contends the government "advanced its investigation" with information from CS-1-CS-4 "without any proof of corroboration, " the Initial Affidavit, in fact, lists the efforts used to corroborate each informant's information, including "analysis of subpoenaed records; debriefings of other confidential informants; surveillance, and government records." (See Initial Affidavit ¶¶ 40-43) Moreover, the information provided by each confidential source aligned with that provided by the others[4] and was also corroborated by ten controlled purchases. See United States v. King, 2006 WI 1489064, at *90-91 (3d Cir. May 31, 2006) (finding confidential source information corroborated by controlled buy).


         10. Wilson also contends that the wiretaps were not necessary given the success of the government's previous investigative techniques. (See D.I. 100 at 5-7)

         11. When applying for a wiretap, the government must make a showing of necessity. See 18 U.S.C. § 2518(3)(c). To do so, the affidavit 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." § 2518(1)(c). The government's burden in this regard is "not great." United States v. Armocida, 515 F.2d 29, 38 (3d Cir. 1975). It need only lay a "factual predicate" explaining why other investigative methods are inadequate. Id. While the Court reviews whether the application contains the requisite statement of necessity de novo, if the application contains such a statement, the issuing court's determination of necessity is reviewed only for abuse of discretion. See United States v. Heilman, 377 Fed.Appx. 157, 175 (3d Cir. 2010). The Initial and Second Affidavits each contain statements of necessity. (See Initial Affidavit ¶¶ 87-122; Second Affidavit ¶¶ 100-40) Thus, the Court reviews the issuing court's necessity determination for abuse of discretion.

         12. Both the Initial and Second Affidavit satisfy the necessity requirement. The Initial Affidavit contains a 17-page description of the limitations of the government's previous investigative techniques and an explanation of why others were likely to fail. (See Initial Affidavit ¶¶ 87-122) For example, the Initial Affidavit explained that physical surveillance did not allow officers to "confirm the purpose or substance" of the Target Subjects' meetings, increased the risk of the investigation being compromised, could jeopardize informants' safety, and was often thwarted by counter-surveillance techniques employed by the Target Subjects. (See Initial Affidavit ¶¶ 90-93, 102) The Initial Affidavit provides similar explanations with respect to eight other investigative techniques. (See Initial Affidavit ¶¶ 103-21) The Second Affidavit is substantially similar to the Initial Affidavit in relation to necessity, detailing the limitations of pole cameras, GPS tracking, cell phone location data, use of the grand jury, and many other techniques. (See Second Affidavit ¶¶ 104-39; see also, e.g., Id. ¶ 112) (explaining GPS tracking had failed because Wilson's car was "driven into the Christiana River with the GPS still attached" before government could retrieve tracker) This was sufficient to show necessity. See United States v. Cannon, 685 Fed.Appx. 114, 116 (3d Cir. 2017) (finding necessity requirement satisfied where affidavit discussed target subjects' ability to "spot surveillance and flee, " confidential informants' "fear of reprisal, " and difficulty infiltrating drug-trafficking organization hierarchy); United States v. Vento, 533 F.2d 838, 849 (3d Cir. 1976) ("It is sufficient that the government show that other techniques are impractical under the circumstances and that it would be unreasonable to require pursuit of those avenues of investigation." (emphasis added)).

         13. Wilson's contention that the government's previous investigative success rendered the wiretaps unnecessary misses the mark. "The Third Circuit has repeatedly held that, even where traditional investigative techniques have been successful in implicating one or more members of a large-scale conspiracy, wiretaps are permissible where traditional investigative measures will not meet the government's objectives of ascertaining the scope of an alleged conspiracy and identifying all of its participants." United States v. Cannon, 2015 WL 6391096, at *2 (D. Del. Oct. 22, 2015) (collecting cases), affd, 685 Fed.Appx. 114 (3d Cir. 2017). When the Initial Intercept Orders were authorized, the government did not know the identity of all the BWILLS Crew members or its suppliers, where the drugs were stored, how the drugs were transported and distributed, or how the drug proceeds were laundered. (See Initial Affidavit ¶ 88; see also Tr. at 82-83) These Target Objectives remained unmet as of the date of the Second Affidavit. (See Second Affidavit ¶ 101) These were crucial objectives of the investigation, and the Initial and Second Affidavits adequately explained the limitations of other investigative methods to achieving them. Thus, the issuing court did not abuse its discretion in determining that wiretaps were necessary to uncover the full extent of the alleged conspiracy.

         Termination of the Wiretaps

          14. Wilson contends the government was required to stop intercepting his communications after October 24, 2016, when communications implicating Wilson in the arrangement and execution of a drug deal were intercepted. (See D.I. 100 at 7)

         15. Under Title III, the issuing court must include "a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained." § 2518(4)(e). Wiretaps need not terminate once the government has collected "minimal evidence of guilt of the party subject to the interception." Vento, 533 F.2d at 852-53.

         16. The Intercept Orders state that "such interception(s) shall not terminate automatically after the first interception that reveals the manner in which the alleged co- conspirators ... conduct their illegal activities." (Initial Intercept Orders at 3; Second Intercept Orders at 3) (emphasis added) Rather, the intercepts were to "continue until all communications are intercepted which reveal fully the manner in which the [Target Subjects]... are committing the TARGET OFFENSES ..., and which reveal folly the identities of their confederates, their places of operation, and the nature of the conspiracy." (Id.) Interception was to terminate only "upon the attainment of the authorized TARGET OBJECTIVES, " subject to a 30-day limit. (Initial Intercept Orders at 8; Second Intercept Orders at 8)

         17. As of October 24, 2016, the date Wilson contends the intercepts were required to stop, law enforcement still did not know the identity of Wilson's supplier, the identity of all coconspirators, how the drugs were being distributed, or where the drugs were being stored. (See Second Affidavit ¶ 101) Thus, many of the Target Objectives - which were aimed at the drug trafficking organization as a whole, and not simply Wilson ...

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