FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE Hon. Jon D. Levy, U.S. District Judge
S. MacColl, with whom Thompson, MacColl & Bass, LLC, P.A.
was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney,
with whom Richard W. Murphy, Acting United States Attorney,
and Margaret D. McGaughey, Assistant United States Attorney,
Appellate Chief, were on brief, for appellee.
Torruella, Selya and Kayatta, Circuit Judges.
Dimitry Gordon strives to persuade us that the district court
erred in denying his motion to suppress wiretap evidence
and/or in refusing to hold one or more evidentiary hearings
in connection therewith. We are not convinced and, therefore,
we affirm the challenged orders (that is, the order denying
the motion to suppress and the orders denying the two
requests for evidentiary hearings).
September of 2012, a joint task force spearheaded by the
federal Drug Enforcement Administration (DEA), and including
state and local law enforcement officers, began investigating
a drug-distribution ring centered in Lewiston, Maine. This
probe led investigators to identify Romelly Dastinot and
Jacques Victor as the likely leaders of the
ring. The task force came to believe that the
two regularly pooled their resources to buy drugs in bulk
quantities in Boston and transport them to Maine. Once the
drugs arrived in Maine, the pair apparently peddled them
through separate distribution channels.
course of its investigation, the task force obtained
Dastinot's and Victor's telephone records. That trove
of information yielded several text-message exchanges
detailing drug transactions.
addition, the task force implemented a gallimaufry of other
investigative strategies. To cite one example, it executed
controlled buys from both Dastinot and Victor. Some of the
controlled buys implicated the appellant as a lower-level
member of the conspiracy, who sold drugs (either oxycodone
pills or crack cocaine) on Dastinot's behalf. To cite
another example, the task force partnered with confidential
sources and turncoat members of the drug ring.
its investigative efforts, the task force was unable to learn
either the identity or specific location of the drug
ring's suppliers. Nor was the task force able to get a
handle on the drug ring's organizational structure. In
hopes of catching bigger fish, the government submitted a
series of wiretap applications to the district court between
February and May of 2014, seeking to monitor a total of five
telephones. Only three of the target telephones, known as
TT1, TT2, and TT5, are relevant to this appeal (Dastinot used
TT1 and TT5, while Victor used TT2). The appellant was
identified as a target-subject of the wiretaps even though
his own telephone was never tapped.
agent, Joey Brown, prepared supporting affidavits for the
wiretap applications. All of these applications were approved
by the district court and renewed as needed. See 18
U.S.C. § 2518(5) (limiting wiretap authorization to
thirty days). In Agent Brown's first affidavit (dated
February 24, 2014), he spelled out investigative techniques
that the task force had used up to that point. For instance,
investigators had worked extensively with cooperating
sources, executed controlled purchases, analyzed telephone
data (obtained through pen registers, telephone toll records,
historical text-message records, and trap-and-trace devices),
conducted physical surveillance, examined public records, and
used available subpoena powers (both administrative and grand
affidavit identified the objectives of the wiretap
investigation as obtaining:
a. The identity of the sources of supply for Dastinot and
Victor, their locations, and the manner in which they
acquire[d] and transport[ed] drugs to Maine and elsewhere for
b. The precise roles of the Target Subjects [including the
appellant] in this drug conspiracy and the methods being
utilized by the Target Subjects to distribute illegal drugs;
c. The identity of all persons receiving drugs from Dastinot
and Victor for further distribution;
d. Identification of the site(s) being utilized for the
storage and concealment of illegal drugs;
e. The existence, location and disposition of proceeds
(including currency, real estate, motor vehicles, and
personal property) derived from the Target Subjects'
involvement in drug distribution;
f. The precise date(s), time(s) and location(s) of shipments
of illegal drugs to/from this organization and the manner of
affidavit revealed that the task force had learned very
little about the drug ring's sources of supply, finances,
organizational structure, or the roles of its members.
to Brown, the task force had mulled a number of additional
investigative strategies, but had rejected them as either too
risky or too unlikely to yield worthwhile results. In this
vein, the task force had decided against conducting more
aggressive physical surveillance, attempting to install
cameras in selected public locations, obtaining search
warrants for known drug-distribution venues, collecting
target-subjects' trash, widening the use of grand jury
interviews, or attempting to introduce undercover agents into
the ring. Brown added that he did not believe that further
controlled purchases would yield more information about the
drug ring. Nor did he think that either approaching or
arresting the target-subjects and asking them to reveal their
sources of supply was apt to prove fruitful.
also noted that the task force had considered obtaining
cell-site location information for at least some of the
telephones. This option was rejected because "the range
of error in this type of data prevents narrowing down a
precise residence (especially in dense places like Boston and
Lewiston)." What is more, the location data are often
several minutes behind the actual location of the telephone.
And location data alone, he reasoned, whether from cell-site
records or from vehicle trackers, would not reveal the
identity of the person with whom a target-subject meets or
the nature of the encounter.
concluded that wiretapping was "the only available
technique that ha[d] a reasonable likelihood of securing the
evidence necessary to accomplish the goals of th[e]
investigation." His affidavit chronicled minimization
procedures that would be instituted if the wiretaps were
approved. At the outset, the monitors (the persons
intercepting calls) would be provided with a minimization
memorandum, the wiretap applications, and the authorizing
orders. In pertinent part, the memorandum instructed that
monitors should stop listening to conversations that did not
relate to the criminal enterprise (though they could
periodically check on seemingly innocuous discussions to see
if the conversation had shifted). Each monitor would sign a
form indicating that he had read the documents.
the district court granted the first of the wiretap
applications, the task force set up a wire room to serve as a
central location for intercepting and monitoring calls. The
room was staffed from 8:00 a.m. to midnight, and any calls
not monitored by staff in real time were not recorded.
Through the duration of the wiretaps, the authorities
intercepted approximately 23, 000 completed calls and text
messages, many of which were in Haitian Creole (the language
of choice for members of the drug ring). Along the way, the
government compiled and submitted periodic statistical
summaries to the district court.
with, inter alia, the fruits of the wiretapping, a federal
grand jury sitting in the District of Maine indicted the
appellant and eleven codefendants. The indictment charged the
appellant with conspiracy to distribute and possess with
intent to distribute controlled substances, see 21
U.S.C. §§ 841(a)(1), 846, and conspiracy to commit
money laundering, see 18 U.S.C. §
course, the appellant moved to suppress the evidence obtained
through the wiretaps and requested two kinds of evidentiary
hearings. First, he requested a general evidentiary hearing
as to the adequacy of the government's minimization
procedures. Second, he requested a Franks hearing on the
ground that Brown's affidavits in support of the wiretap
applications included false statements. See Franks v.
Delaware, 438 U.S. 154, 155-56 (1978).
district court heard arguments on these motions on January
28, 2015, but reserved decision. It later ordered the
government to submit additional information regarding the
statistical makeup of the intercepted conversations. In
response, the government submitted Brown's supplemental
affidavit dated February 13, 2015, which clarified and
corrected the double-counting of some intercepted calls and
reported that 14% of the calls lasting more than two minutes
had been minimized in some way.
further briefing, the district court denied not only the
motion to suppress but also the twin requests for evidentiary
hearings. The appellant thereafter entered a conditional
guilty plea to the drug conspiracy count, see Fed.
R. Crim. P. 11(a)(2), preserving his right to appeal the
denial of both his motion to suppress and his related
requests for evidentiary hearings. The district court
accepted the conditional plea and subsequently sentenced the