The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
This matter comes before this Court on several defendants' motions to suppress evidence obtained via electronic surveillance. Several active defendants have moved to join or adopt the substantive suppression motions of their co-defendants. Still other defendants who have since pled guilty moved to join or adopt the substantive suppression motions of their co-defendants. The United States filed a Consolidated Response, to which two defendants replied. One defendant who has since pled guilty moved to join those replies. All parties participated in a hearing before this Court on October 11, 2005.
Upon consideration of all parties' filings, the applicable law and the entire record herein, motions by active defendants to join or adopt shall be GRANTED; motions by inactive defendants to join or adopt shall be DENIED as moot; and all defendants' motions to suppress electronic surveillance evidence shall be DENIED.
Over a period of 18 months beginning April 2004, defendants filed a succession of 31 motions relating to the wiretap evidence against them. The evidence at issue resulted from surveillance conducted between February and May of 2004 pursuant to applications approved by judges of this Court and one other court. The following applications and affidavits are at issue: (1) February 13, 2004 application for a wiretap on defendant Miller's telephone including an affidavit by Special Agent Sparks ("Sparks 2/13/04 Affidavit"); (2) March 17, 2004 application for an extension of the Miller wiretap including an affidavit by Special Agent Sparks ("Sparks 3/17/04 Affidavit"); (3) April 15, 2004 application for a second extension of the Miller wiretap including an affidavit by Special Agent Sparks ("Sparks 4/15/04 Affidavit"); (4) April 27, 2004 application for a wiretap on defendant Eiland's telephone based on an affidavit by Special Agent Sparks ("Sparks 4/27/04 Affidavit); (5) May 28, 2004 application for an extension of the Eiland wiretap based on an affidavit by Special Agent Sparks ("Sparks 5/28/04 Affidavit"); (6) May 13, 2004 application for a wiretap on defendant Bryant's telephone including an affidavit by Special Agent Young ("Young Affidavit"); and (7) May 19, 2004 application for video and oral communications surveillance including an affidavit by Special Agent Hall ("Hall Affidavit"). Defendants seek suppression of all intercepted communications and all evidence derived therefrom. Gaskins' Mem. Supp. 7; Gaskins' Mot. 1; Miller's Suppl. Mot. 3-4; Moore's Mem. Supp. 13; Thomas' Mot. 12-13.
Defendants assert that they are "aggrieved persons" with standing to challenge the evidence. Gaskins' Mem. Supp. 5-6. Defendants claim to meet the "aggrieved person" standard because they were targeted by the surveillance (Gaskins' Mem. Supp. 6; Gaskins' Reply 2-3; Miller's Mot. 1; Simon's Mot. 3-4; Thomas' Mot. 2-3; Thomas' Reply 9-11), intercepted by it (Eiland's Mot. ¶ 2; Gaskins' Mem. Supp. 6; Gaskins' Reply 2-3; Miller's Mot. 3; Moore's Mem. Supp. 3; Simon's Mot. 3-4; Thomas' Mot. 2-3), implicated by the resulting evidence (Gaskins' Mem. Supp. 6; Moore's Mem. Supp. 3-4), or some combination thereof. The United States disputes standing as to those defendants whose conversations were not captured in the contested recordings. Opp'n 10-16.
B. Statutory Requirements
Defendants assert that statutory law and case law establishes that "the probable cause standard for seizing telephone conversations is high for Fourth Amendment purposes." Gaskins' Mem. Supp. 7; Moore's Mem. Supp. 5; cf. Eiland's Mot. ¶ 11. The probable cause standard is even higher for video surveillance. Thomas' Mot. 18-19. The gravamen of defendants' complaints is that the applications, and especially the affidavits, contained similar or identical language, and were conclusory and incomplete. Eiland's Mot. ¶ 14; Moore's Mem. Supp. 8-10, 17; Simon's Mot. 5; Thomas' Mot. 12-15; Thomas' Suppl. Mot. 2-4. As such, they are alleged to have insufficiently satisfied the probable cause standard and failed to meet all statutory requirements. Gaskins' Mem. Supp. passim; Miller Mot. 2-3. If there were no probable cause, the judge could not have "made an independent factual determination regarding the necessity of [the] wiretaps." Butcher's Suppl. Mot. 1. The Government defends its use of similar language in succeeding affidavits. Opp'n 13. The practice is not prohibited as long as the key requirement of probable cause is satisfied; namely, that "the affidavit supports probable cause for the target facilities the application seeks to make interceptions." Id.; id. at 14.
Defendants also argue that the affidavits contained falsehoods. The Sparks 2/13/04 Affidavit allegedly contains material false statements concerning defendant Gaskins, entitling him to a Franks Hearing. Gaskins' Mem. Supp. 12. Specifically, two assertions are identified as false: that Gaskins committed identity fraud and that his bank accounts routinely reflected daily balances exceeding $9,000, indicating that he laundered Miller's illicit drug proceeds. Gaskins' Mem. Supp. 12-15; Gaskins' Reply 4-5. Even worse, the alleged misstatements were included with at least reckless disregard for the truth because the Government did not take steps to corroborate the information, some of which was provided by a cooperating witness the government knew to be incredible. Gaskins' Mem. Supp. 15-16; Gaskins' Reply 6-7.
Defendant Thomas also argues that he is entitled to a hearing because the affidavits contained "many misleading, false, and reckless statements." Thomas' Mot. 20. He cites the omission of the previous application for interceptee Ballard, discussed infra Parts I.B.4 and II.B.5. Thomas' Mot. 20-22. Thomas argues that the allegation that he had plans to rob a bank or harm a cooperating witness was baseless. Thomas' Mot. 22; Thomas' Reply 13-14. He notes that several affidavits include errors that might have misled the judge into finding probable cause where there was none. Thomas' Mot. 22-23.
Defendant Moore echoes arguments that the affidavits contain falsehoods. Moore's Mem. Supp. 10-12, 14-16. He points to unsupported implications that he was somehow involved with the conspiracy and had previously committed criminal acts. Moore's Mem. Supp. 10-12. These implications render the affidavits intentionally misleading because they "attempt to create the appearance of a criminal conspiracy" and "Corey Moore's association." Id. at 14. These material statements were made with at least reckless disregard because they relied on a cooperating witness whose reliability police had reason to mistrust. Id. at 15.
The Government asserts that probable cause was amply established in its applications. Opp'n 21-22. The applications provided factual details supporting the finding of probable cause, such as identification of co-conspirators and premises used in furtherance of the conspiracy. Opp'n 22. In regard to the allegedly false statements included in the affidavits, the United States contends that defendants' arguments fail to meet the legal standard. Opp'n 29-40. They have not established that the affidavits contained materially false statements, nor have they provided any basis to believe that unsupported statements were included intentionally or with reckless disregard for the truth. Opp'n 32-40.
Defendants claim the applications for the electronic surveillance were deficient in another respect: they failed to demonstrate why less intrusive investigative procedures were unable to achieve the goals of the investigation. Butcher's Suppl. Mot. ¶¶ 7-8, 15, 17; Eiland's Mot. ¶¶ 4-5, 13-14; Gaskins' Mem. Supp. 7-8; Miller's Mot. 2-5; Moore's Mem. Supp. 13-14; Simon's Mot. 5-8; Thomas' Mot. 4-7; Thomas' Reply 6. One of the affidavits, defendants contend, indicated that law enforcement might have had access to the information from confidential sources. Eiland's Mot. ¶ 6; Gaskins' Mem. Supp. 8-9; Simon's Mot. 6; Thomas' Mot. 6. Further, leads had not been exhausted by traditional investigative methods such as physical surveillance and the empaneling of a grand jury. Eiland's Mot. ¶¶ 7-8; Gaskins' Mem. Supp. 11; Simon's Mot. 6-8; Thomas' Suppl. Mot. 1-2. The Government responds that the grand jury was in fact used, as described in the Sparks affidavit, to corroborate testimony of cooperating witness ("CW") 5. Opp'n 24.
The failure to exhaust, defendants contend, reveals that the Government did not seek wiretaps as a last resort as required by the statute and case law, but instead used it as a more convenient way to obtain evidence that could have been obtained through less intrusive means. Eiland's Mot. ¶¶ 9, 15; Thomas' Mot. 4-6. Butcher also argues that the investigative goals were deliberately stated in broad terms so as to compel the result that normal procedures would not be sufficient to attain them, resulting in the judge's approval being predetermined. Butcher's Suppl. Mot. 10, ¶¶ 10-14. Finally, even if the initial applications were justified, defendants claim that the electronic surveillance should have been discontinued once sufficient leads were obtained by the end of March 2004. Eiland's Mot. ¶ 10. The new leads should have been pursued by means of traditional investigation before resorting to continued eavesdropping. Eiland's Mot. ¶ 16.
The United States contends that the applications explained why less intrusive methods of investigation were deemed to be insufficient. Opp'n 22. The initial applications and extension applications explain how each of several methods produced inadequate results, or why they were not used at all. Opp'n 22-25.
Defendants argue that the Government failed to follow the minimization requirements of the statute, as articulated in case law. Moore's Suppl. Mot. 2-4; Thomas' Mot. 15-17; Thomas' Reply 11. Communications unrelated to the criminal investigation should not have been intercepted. Moore's Suppl. Mot. 3; Thomas' Reply 11.
The United States avers that the surveillance was consistent with the minimization standard. Opp'n 40-43. Surveillance will be found insufficiently minimized when agents have not used reasonable efforts to minimize innocent interceptions as part of overall surveillance procedures. Opp'n 43-44. The Government believes that, under the circumstances of investigating a wide-ranging conspiracy, it made reasonable efforts to minimize, Opp'n 45-49, and that this showing of reasonable minimization efforts is not changed by the fact that some of the interceptions were later determined to consist of non-criminal communications. Opp'n 49-51.
4. Other Statutory Requirements
Defendants contend that the statutory requirement of presenting the application for surveillance to a Department of Justice ("DOJ") official for approval was violated because several of the applications changed after being approved by the DOJ but before being submitted to a judge. Thomas' Mot. 7-9; Thomas' Reply 2. As such, defendants argue that neither the statute nor the internal U.S. Attorney's manual were strictly followed, bringing into question the accuracy and validity of the application. Thomas' Mot. 9-11; Thomas' Reply 2-6.
The United States disputes the assertion that it did not follow internal DOJ policy with regard to obtaining approval of an application before submitting it to a judge. Opp'n 53-54. Any changed information merely reflected the addition of information gained after the application was initially completed, and in any case, it was not a change significant enough to have affected the judge's determination of probable cause or necessity. Opp'n 54.
Defendants' final argument that the wiretap applications were inadequate rests on the requirement that the application list all previous applications for persons targeted or intercepted. Ballard, an interceptee on one or more of the Miller calls, was the target of a prior application. That fact was disclosed. An interceptee named Clipper, however, was the subject of a prior application that was not disclosed. The omission, defendants contend, constitutes a violation of the statute. Gaskins' Mem. Supp. 17-18; Gaskins' Reply 3; Thomas' Mot. 20-22. Furthermore, the affidavits contained inconsistencies with regard to Ballard. Thomas' Suppl. Mot. 5. The Government contends that defendants misunderstand the requirement to list prior applications. Prior applications for interceptees who were not targeted interceptees need not be included, Opp'n 15-16, and Clipper was never a targeted interceptee in this investigation. Id. Thus, the United States maintains, defendants' arguments are misplaced.
Defendants suggest that the Government engaged in "forum shopping" by submitting an application for electronic surveillance authorization to a court in Virginia rather than from this Court, which had issued the previous authorizations. Thomas' Mot. 24-25; see also Gaskins' Reply 4. Thomas also suggests that the wiretap extensions, allegedly not typical in the District of Columbia, reveal an "impermissibl[e] exten[sion] of the invasion of privacy" in violation of Title III. Thomas' Mot. 28; id. at 25-28; Thomas' Suppl. Mot. 5.
The Government claims that the forum shopping argument is without merit. Opp'n 26-27. Given the nature of the surveillance at issue, there were legitimate reasons to seek authorization from the Virginia court. Details of the Virginia hotel room operation were carefully planned, including selection of the location, to maximize its success and minimize safety concerns. Opp'n 26-27; Hall Aff. ¶¶ 23, 25. Similarly, the United States submits that Thomas' arguments regarding ...