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United States v. Hudson

United States District Court, W.D. Oklahoma

January 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHAD NATHAN HUDSON, et al., Defendants.

          ORDER

          DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE.

         Before the Court are Defendants' Motions to Suppress evidence from Title III wiretaps authorized on June 17th, 2016, for Defendant Coker's cellphone (“TT1”[1]) 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).[2] 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.

         I. Background

         Defendants 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.

         Defendants 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.[3] 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.

         II. Standing and Applicability of Title III

         Title 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. 2002)

         Defendant 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.”).

         The 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.[4] 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. 1191-5; 1191-6.

         However, 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.

         Second, 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).

         III. Territorial Jurisdiction

         Defendants 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.

         It is 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 ...


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