United States v. Brown

41 F. App'x 866
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 20, 2002
DocketNo. 01-2319
StatusPublished
Cited by1 cases

This text of 41 F. App'x 866 (United States v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brown, 41 F. App'x 866 (7th Cir. 2002).

Opinion

ORDER

A jury found Macklin Brown guilty of conspiracy to distribute one kilogram or more of heroin, 21 U.S.C. §§ 841(a)(1) and 846, and the district court sentenced him to 360 months’ imprisonment, five years’ supervised release, and a $2,000 fine. Brown appeals, but his appointed counsel have filed a motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because they believe all potential appellate issues 'are frivolous. Pursuant to Circuit Rule 51(b) Brown has supplemented the issues identified in counsel’s facially adequate brief but has not identified any non-frivolous arguments. As we agree that the issues identified by counsel are frivolous, we grant counsel’s motion and dismiss the appeal.1

[868]*868Counsel initially consider whether Brown might argue that the district court erred in refusing to suppress evidence obtained through a wiretap on a co-conspirator’s cell phone, which heroin users called to get their heroin delivered to the various Indianapolis street corners where Brown and his fellow conspirators dealt. The first potential theory is that the government failed to establish necessity in its wiretap application. See 18 U.S.C. § 2518. But as counsel note, this case is indistinguishable from United States v. Adams, 125 F.3d 586 (7th Cir.1997). As in Adams, the application included an exhaustive recital of the government’s investigative failures thus far, including its inability to discover the source of Brown’s heroin. In addition, the application depicted the organization’s insular and violent character, which made it both dangerous and difficult for a government agent to successfully infiltrate. Finally, the FBI believed that agents would stand out in the neighborhood in which the organization operated, thus making physical surveillance of limited usefulness, if not harmful. Considering the detail of the government’s application in light of Adams, we agree with counsel that arguing the wiretap was not reasonably necessary would be frivolous.

Counsel next weigh whether Brown could pursue the suppression theory that the government violated the wiretap statute by failing to obtain a new intercept authorization immediately after the co-conspirator switched his cellular phone number to a new cellular telephone. The original authorization specified not only the” phone number, but also the electronic serial number-a unique number hardwired into every cell phone-of the original phone. Brown would have to argue that continuing to monitor the phone number after the co-conspirator had it reassigned to the new phone was unlawful because the initial authorization no longer described with particularity the tapped communication facility: the co-conspirator’s new cell phone. See 18 U.S.C. § 2518(3)(d).

This theory is frivolous unless the district court would have been precluded from authorizing the wiretap if it had known the co-conspirator was going to switch phones. Only if the court would have been so precluded by the dictates of § 2518 is suppression required. See United States v. Donovan, 429 U.S. 413, 433-35, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). Counsel directs us to United States v. Duran, 189 F.3d 1071 (9th Cir.1999), which is the only circuit precedent on this issue. Confronted with a situation strikingly like the one in this case, the Duran court followed Donovan in reasoning that “in no meaningful sense can it be said that the presence of that information as to additional [phones] would have precluded judicial authorization of the intercept.” Id. at 1085-86 (citation omitted). Furthermore, in Duran it was clear from the intercept authorization, which allowed continued monitoring of any changed telephone numbers traceable to the original target number, that the authorizing judge had intended to permit surveillance of any communication traceable to the number in the original order. The court therefore refused to suppress evidence gathered after a suspect had changed his cell phone but not his phone number, even though the authorization was precise as to both phone number and ESN.

Here, as in Duran, the court would have acted well within its authority under § 2518 had it included language authorizing continued eavesdropping on calls placed to and from the co-conspirator’s [869]*869phone number regardless of changes in the telephone to which it was assigned. And the original authorization contained language-almost exactly the same language as in Duran -evidencing the judge’s intent to authorize continued interception of any communication traceable to the original target number. In fact, later intercept orders did include such authority. The novelty of the question in this circuit does not preclude us from determining that an appeal on this ground would be frivolous, see United States v. Lopez-Flores, 275 F.3d 661, 662 (7th Cir.2001), and considering the persuasive force of Duran we agree with counsel that pursuing this suppression theory would indeed be so.

Before moving beyond the wiretap, counsel consider a final potential suppression theory: that suppression was required because the government did not immediately seal the tapes, as is mandated upon expiration of the wiretap authority. See 18 U.S.C. § 2518(8). That authority ends on the date specified in the intercept order or when surveillance has achieved its objectives, whichever is sooner. See 18 U.S.C. § 2518(5). The wiretap’s objectives in this case, as described in the authorizing order, included revealing “fully” the identities of Brown’s “confederates.” Although it had yet to identify an important confederate-Brown’s heroin source-the government’s last intercept occurred on April 19, 1999, eighteen days before the stated May 7 expiration date. The government sealed the tapes on April 28, 1999. At a suppression healing, the agent in charge of the conspiracy investigation explained that he ceased monitoring the phone because use by targets had declined, though he did not immediately seal the tapes after April 19 because the objectives of the investigation had not been achieved and he still contemplated periodically checking the phone to determine if the conspirators had resumed using it. Counsel conclude that these facts show that the government indeed sealed the tapes before it even needed to, and we agree that arguing otherwise would be frivolous. See United States v. Wong, 40 F.3d 1347

Free access — add to your briefcase to read the full text and ask questions with AI

Related

BROWN v. United States
S.D. Indiana, 2020

Cite This Page — Counsel Stack

Bluebook (online)
41 F. App'x 866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brown-ca7-2002.