United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE.
the Court are Defendants' Motions to Suppress evidence
from Title III wiretaps authorized on June 17th,
2016, for Defendant Coker's cellphone
(“TT1”) and on July 1st, 2016, for
Defendant Brown's cellphone (“TT2”), Docs.
1124, 1125, 1133, 1134. See Orders Authorizing
Interception, Docs. 1191-2 (TT1) and 1191-4
(TT2). Defendants Brown and Potts move to
suppress TT1 and TT2 intercepts because they were allegedly
outside the territorial jurisdiction of the Western District
of Oklahoma; they also challenge content allegedly
intercepted from TT1 before that wiretap was authorized.
See 18 U.S.C. § 2518(3), (10)(a)(ii)-(iii);
Docs. 1133, 1134. Additionally, Defendants Yargee, Brown, and
Potts challenge the sufficiency of the TT1 and TT2 wiretap
applications in complying with Title III's necessity
requirement-inclusion of “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.” 18 U.S.C.
§ 2518(1)(c); see 18 U.S.C. §
2518(10)(a)(ii); Docs. 1124 and 1125. The Court finds that
the Government made a sufficient necessity showing, obtained
valid authorization orders, and conducted wiretaps in
conformity with those orders. Accordingly, the Court denies
Defendants' Motions for the following reasons.
Brown, Potts, and Yargee are charged with conspiracy to
possess and distribute methamphetamine and heroin and various
other crimes related to the Irish Mob gang's alleged
drug-trafficking operation. See Second Superseding
Indictment, Doc. 601. According to the Indictment, Mob
leaders incarcerated in an Oklahoma state prison, including
Defendants Brown and Potts, used contraband cellphones to
direct suppliers, couriers, and distributors to move cash,
methamphetamine, and heroin between various stash houses
around the Oklahoma City area; Defendant Yargee was allegedly
one of these couriers. See Id. at 3-8.
Brown, Potts, and Yargee challenge the sufficiency of two
wiretap orders and seek to suppress any resulting
incriminating content. On June 17, 2016, Chief United States
District Judge for the Western District of Oklahoma, Joe
Heaton, authorized the TT1 wiretap of Richard Coker's
cellphone while he was incarcerated in McAlester State
Penitentiary in the Eastern District of
Oklahoma. See Doc. 1192. The order relied
on FBI Special Agent (“SA”) Jamie Walker's
affidavit, which described the Government's investigation
until that point and why traditional non-wiretap
investigative techniques were unlikely to uncover the
conspiracy's full scope. See Doc. 1191-1. Then
on July 1, 2016, U.S. District Judge for the Western District
of Oklahoma, Timothy DeGiusti, ordered the TT2 wiretap of
Defendant Brown's cellphone, relying on another affidavit
by SA Walker that similarly outlined the investigation and
necessity for a wiretap. See Docs. 1191-3; 1191-4.
Standing and Applicability of Title III
III of the Omnibus Crime Control and Safe Streets Act of
1968, codified at 18 U.S.C. §§ 2510-22,
“generally forbids the intentional interception of wire
communications, such as telephone calls, when done without
court-ordered authorization.'” United States v.
Faulkner, 439 F.3d 1221, 1223 (10th Cir. 2006) (quoting
United States v. Workman, 80 F.3d 688, 692 (2d Cir.
1996)). Communications intercepted in violation of Title III
are subject to suppression, 18 U.S.C. § 2515, but only
an “aggrieved person” has standing to move for
suppression. Id. § 2518(10)(a); see
Faulkner, 439 F.3d at 1223. An “‘aggrieved
person' means a person who was a party to any intercepted
wire, oral, or electronic communication or a person against
whom the interception was directed.” Id.
§ 2510(11). Moreover, “[a] defendant bears the
burden of proving that a wiretap is invalid once it has been
authorized.” United States v.
Ramirez-Encarnacion, 291 F.3d 1219, 1222 (10th Cir.
Yargee is not an aggrieved person with standing to move for
suppression of intercepted TT1 content. Id. He makes
a conclusory assertion otherwise, Doc. 1125, at 2-3, but the
Government notes that it only directed the TT1 wiretap at
Richard Coker and Gary Schneider; Yargee also fails to show a
TT1 intercept to which he was a party. See id.; Doc.
1191-2, at 1. Nonetheless, the Government concedes that Brown
and Potts are aggrieved persons with respect to TT1
intercepts and that Brown, Potts, and Yargee are aggrieved
persons with respect to TT2 intercepts. See United States
v. Dewitt, 946 F.2d 1497, 1499-1500 (10th Cir. 1991)
(“[T]he government has waived this [standing] issue by
failing to raise it below.”).
Government makes two arguments that despite maintaining
standing to challenge one or both wiretap authorization
orders, Defendants are not entitled to Title III protection
of communications through a contraband cellphone in
prison. First, Title III excludes instances where
“a person acting under color of law . . . intercept[s]
a wire . . . communication” and “one of the
parties to the communication has given prior consent to such
interceptions.” 18 U.S.C. § 2511(2)(c). The
Government argues that Oklahoma state prisoners implicitly
consent to wiretap interception. See Doc. 1191, at
8-10. In the context of prison-run telephones, the question
is settled. See United States v. Verdin-Garcia, 516
F.3d 884, 895 (10th Cir. 2008) (“[W]e agree with the
other circuits having considered the question that where the
warnings given and other circumstances establish the
prisoner's awareness of the possibility of monitoring or
recording, his decision to take advantage of that [telephone]
privilege implies consent to the conditions placed upon
it.”). Defendants' consent is implied from repeated
warnings regarding phone-monitoring in the Oklahoma
Department of Corrections' (“ODOC”) Offender
Orientation Manual and Policy Statement distributed to
inmates like Brown and Potts upon arrival. See Docs.
the ODOC documents' repeated references to monitoring by
“facility staff officials” of “general
telephone calls” clarifies that Defendants Brown and
Potts' implied consent to monitoring was limited to
prison-run telephones, not to contraband cellphones.
Id. Otherwise, why would inmates allegedly use
contraband cellphones to conduct drug-trafficking business,
if not to evade monitoring by prison staff? The Government
fails to show how consent in one context necessarily supplies
consent in another.
the Government argues that even if the Court declines to find
consent as prescribed by the statute, there is an implicit
Title III exception for intercepts involving contraband
cellphones. Title III “protects an individual from all
forms of wiretapping except when the statute specifically
provides otherwise.” Faulkner, 439 F.3d at
1223 (quoting United States v. Hammond, 286 F.3d
189, 192 (4th Cir. 2002)). The statute also explicitly lists
various exceptions at 18 U.S.C. § 2511(2), none of which
directly speak to this issue. Because the Government makes a
proper showing of territorial jurisdiction and wiretap
necessity below, the Court assumes for purposes of the
Motions that Title III applies and does not reach the
contraband exception issue. But see United States v.
Ballesteros, No. 13-CR-4514-BEN, 2015 WL 468373, at *4
(S.D. Cal. Feb. 3, 2015).
Brown and Potts argue that the TT1 and TT2 wiretaps were
facially insufficient because Chief Judge Heaton and Judge
DeGiusti lacked territorial jurisdiction over the intercepts.
See 18 U.S.C. § 2518(3), (10)(ii); Doc. 1133.
An “‘intercept' means the aural or other
acquisition of the contents of any wire, electronic, or oral
communication through the use of any electronic, mechanical,
or other device.” Id. § 2510(4). An
authorizing court has jurisdiction where Title III
interception occurs-“both where the tapped telephones
are located and where law enforcement officers put their
listening post.” United States v. Dahda, 853
F.3d 1101, 1112 (10th Cir.), cert. granted on other
grounds, 138 S.Ct. 356 (2017); see also United
States v. Tavarez, 40 F.3d 1136, 1138 & n.2 (10th
Cir. 1994) (finding the same definition of
“interception” in the “Oklahoma counterpart
to Title III, ” Dahda, 853 F.3d at 1112, the
Oklahoma Security of Communications Act). Because
interception occurs in both places, the Government can show
proper territorial jurisdiction by merely satisfying one of
the two requirements. See id.
undisputed that the Government targeted TT1 and TT2
cellphones located in the Eastern District of Oklahoma,
outside the authorizing jurisdiction. However, Chief Judge
Heaton and Judge DeGiusti ordered that “all
interceptions conducted” on TT1 and TT2 must be at the
FBI's Oklahoma City office within the Western District of
Oklahoma. Docs. 1191-2, at 7; 1191-4, at 6-7. In other words,
the “listening ...