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United States v. Gordon

United States Court of Appeals, First Circuit

September 8, 2017

DIMITRY GORDON, Defendant, Appellant.


          Edward 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.

          Before Torruella, Selya and Kayatta, Circuit Judges.


         Defendant-appellant 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).

         I. BACKGROUND

         Around 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.[1] 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.

         In the 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.

         In 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.[2]

         Despite 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.

         A DEA 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 jury).

         The 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 distribution;
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 delivery.

         The 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.

         According 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.

         Brown 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.

         Brown 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.

         After 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.

         Armed 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. § 1956(a)(1)(B)(i).

         In due 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).

         The 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.

         After 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 appellant ...

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