United States District Court, District of Columbia
C. LAMBERTH UNITED STATES DISTRICT JUDGE.
before this Court is defendant Eric Scurry's motion to
dismiss the indictment against him [ECF No. 379]. For the
reasons stated below, the Court will deny this motion.
2009, the FBI embarked on an investigation into narcotics
trafficking in the 4200 block of 4th Street SE in Washington,
D.C. As a result of information obtained from two cooperating
witnesses, the FBI concluded that Scurry was a crack (cocaine
base) dealer. On April 2, 2010, the FBI was granted
authorization to wiretap Eric Scurry's cell phone. This
tap ultimately lasted from April 2, 2010 until May 31, 2010.
Based on evidence obtained in the Scurry tap, the FBI was
granted authorization to tap to cell phones associated with
co-defendant Terrance Hudson from June 14, 2010 to July 13,
2010. The Hudson taps then pointed to co-defendant Robert
Savoy, and the FBI was granted authorization to tap two cell
phones associated with Savoy from July 23, 2010 to August 21,
2010. Information obtained from the Savoy taps implicated
co-defendant James Brown, and the FBI obtained authorization
to tap Brown's cell phone from September 13, 2010 to
October 12, 2010.
result of the evidence obtained in the wiretaps, the
defendants were indicted in 2010 for various drug-trafficking
offenses. In 2011, defendants Scurry, Hudson, Savoy, Johnson,
and Brown moved to suppress the evidence obtained from the
wiretaps on the grounds that the affidavits in support of the
government's applications for interception of
communications did not establish probable cause, did not
satisfy the necessity requirements of 18 U.S.C. §
25l8(3)(c), did not meet the "minimization"
requirements under Title III, and that the taps were not
properly authorized. This Court denied those motions on
August 3, 2012. See United States v. Savoy, 883
F.Supp.2d 101 (D.D.C. 2012). The defendants thereafter
entered into plea agreements. Defendant Scurry pleaded guilty
to a two count superseding information charging him with
conspiracy to distribute 280 grams or more of cocaine based
and conspiracy to commit money laundering. He agreed that he
was responsible for more than 280 grams but less than 840
grams of cocaine base and that a sentence of 144 months was
appropriate. On December 3, 2012, he was sentenced to 144
appeal, the Court of Appeals for the D.C. Circuit found that
"each of the Hudson and Johnson [wiretap] orders is
'insufficient on its face,' because each fails to
include information expressly required by Title III,"
namely, the identity of "the individual high-level
Justice Department official who, as required by section
2516(1), authorized the underlying wiretap application."
United States v. Scurry, 821 F.3d 1, 8 (D.C. Cir.
2016) (internal citation omitted). The Court of Appeals found
that suppression of the evidence collected or derived from
the Hudson and Johnson wiretaps was the appropriate remedy.
Id. at 13-14. With respect to the Scurry wiretaps,
however, the Court of Appeals found that the applications
were supported by probable cause and satisfied the necessary
requirements. Id. at 16-18. It therefore affirmed
this Court's denial of Scurry's motion to suppress.
Id. at 18.
the case was remanded for further proceedings, the government
determined that evidence from the Savoy taps was derived from
the Hudson taps, and was therefore subject to suppression. It
thus moved to dismiss the cases against defendants Hudson,
Johnson, Savoy, and Brown. Those motions were granted on
September 28, 2016, and the defendants were released from
prison. Defendant Eric Scurry thereafter filed the instant
motion to dismiss, arguing that the indictment against him
must be dismissed based on the Court of Appeals' decision
and the subsequent dismissal of the indictments against his
Court finds that dismissal of the indictment against Scurry
is not warranted. As the government notes, the Scurry
wiretaps were the first in this case. They did not stem or
derive from information revealed in any of the other,
subsequent wiretaps. The D.C. Circuit's opinion-which
expressly upheld this Court's decision not to suppress
the Scurry wiretaps-has no effect on the evidence against
Scurry. Moreover, Scurry specifically agreed in his plea
agreement that he was responsible for 280 grams of cocaine
base. Although he challenges his guilty plea as not knowing
or voluntary in a separate § 2255 motion, which will be
addressed in a separate opinion, nothing in the D.C. Circuit
opinion, or the government's subsequent decision to ask
for the dismissal of the indictments against Scurry's
co-defendants, affects this agreement. Finally, although
Scurry argues that he was sentenced solely based on the
quantities of narcotics alleged in the indicted conspiracy
initially charged against Savoy, Hudson, and Johnson, and
because those indictments have been dismissed, his must be as
well, this is simply untrue. Scurry was sentenced based on
his own plea agreement, in which he both agreed that he was
responsible for 280 grams of cocaine base, and that a
sentence of 12 years imprisonment was appropriate.
the Court concludes that there is no basis upon which to
dismiss the indictment against Scurry. Scurry's motion
shall be denied. A ...