United States v. Holland

• Court: District Court, District of Columbia
• Decided: May 30, 2014
• Docket: Criminal No. 2013-0033
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA : : v. : Criminal Action No.: 13-cr-33(RC) : KEVIN HOLLAND, : Re Document No.: 15,18-22,26 : Defendant. :

MEMORANDUM OPINION

DENYING GOVERNMENT’S MOTIONS TO ADMIT EVIDENCE PURSUANT TO FEDERAL RULES OF EVIDENCE 404(B) AND 609(A)(1); DENYING DEFENDANT’S MOTION FOR SUPPRESSION OF ELECTRONIC INFORMATION OBTAINED PURSUANT TO WIRETAP; DENYING DEFENDANT’S MOTION FOR DISCLOSURE OF BRADY, GIGLIO, AND JENCKS INFORMATION; DENYING DEFENDANT’S MOTION TO DISCLOSE IDENTITIES OF EACH CONFIDENTIAL INFORMANT; DENYING DEFENDANT’S MOTION TO SUPPRESS TANGIBLE EVIDENCE; AND DENYING DEFENDANT’S MOTION FOR DISCOVERY OF CO-DEFENDANT AND CO-CONSPIRATOR STATEMENTS

I. INTRODUCTION

Defendant Kevin Holland is charged with three counts of unlawful distribution of

cocaine, one count of conspiracy to distribute and possession with intent to distribute cocaine,

and one count of unlawful distribution of heroin, pursuant to 21 U.S.C. §841(a)(1). Superseding

Indictment, Jan. 30, 2014, ECF No. 17. Defendant has filed motions in limine prior to trial, for

the: 1) disclosure of identities of each confidential informant, regardless of whether they will

testify at trial, 2) disclosure of any co-defendant or co-conspirator statements in advance of trial,

3) disclosure of Brady and Giglio information, and the early production of Jencks material, 4)

suppression of electronic information obtained from wiretaps, and 5) suppression of tangible

evidence obtained pursuant to a search warrant. The Government has filed motions seeking the

admission of Defendant’s prior drug offense, pursuant to Fed. R. Evid. 404(b), and admission of Defendant’s prior assault and theft conviction, pursuant to Fed. R. Evid. 609(a)(1). The Court

addresses each of these motions below.

II. LEGAL STANDARD

“While neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence

expressly provide for motions in limine, the Court may allow such motions ‘pursuant to the

district court’s inherent authority to manage the course of trials.’” Barnes v. District of

Columbia, 924 F. Supp. 2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States, 469 U.S. 38, 41

n. 4 (1984)). “Motions in limine are designed to narrow the evidentiary issues at trial.” Williams

v. Johnson, 747 F. Supp. 2d 10, 14 (D.D.C. 2010). “Rule 103(d) of the Federal Rules of

Evidence mandates that the court must conduct a jury trial to the extent practicable so that

inadmissible evidence is not suggested to the jury by any means.” Daniels v. District of

Columbia, No. CV 11-1331 (BAH), 2014 WL 535213, at *2 (D.D.C. Feb. 11, 2014) (citing Fed.

R. Evid. 103(d)). Importantly, a trial judge’s discretion “extends not only to the substantive

evidentiary ruling, but also to the threshold question of whether a motion in limine presents an

evidentiary issue that is appropriate for ruling in advance of trial.” Barnes, 924 F. Supp. 2d at 79

(quoting Graves v. District of Columbia, 850 F. Supp. 2d 6, 11 (D.D.C. 2011)).

“In evaluating the admissibility of proffered evidence on a pretrial motion in limine the

court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to

Federal Rules of Evidence 401 and 402.” Daniels, 2014 WL 535213, at *3. A court “may

exclude relevant evidence if its probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Unfair

prejudice within its context means an undue tendency to suggest [making a] decision on an

2 improper basis, commonly, though not necessarily, an emotional one.” United States v. Ring,

706 F.3d 460, 472 (D.C. Cir. 2013), cert. denied, 134 S. Ct. 175 (2013) (quoting Advisory

Committee’s Note Fed. R. Evid. 403); see also Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.

1980) (explaining that evidence is unfairly prejudicial “if it appeals to the jury’s sympathies,

arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base

its decision on something other than the established propositions in the case.”) (citations

omitted). Under Rule 403, “the court must ‘engage in on-the-spot balancing of probative value

and prejudice and. . . exclude even factually relevant evidence when it fails the balancing test.”

Daniels, 2014 WL 535213, at *3 (quoting United States v. Moore, 651 F.3d 30, 63 (D.C. Cir.

2011)).

III. ANALYSIS

A. Rule 404(b) evidence

The Government seeks the admission of the Defendant’s 1996 conviction for a

conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base,

pursuant to Rule 404(b). Govt.’s Mot. for Evid. Pursuant to 404(b), Jan. 24, 2014, ECF No. 15.

Rule 404(b) of the Federal Rules of Evidence governs the admission of other crimes, wrongs, or

bad acts of a defendant. The D.C. Circuit has described Rule 404(b) as one “of inclusion rather

than exclusion,” United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000), and has explained

that it excludes only evidence that “is offered for the sole purpose of proving that a person's

actions conformed to his or her character,” United States v. Long, 328 F.3d 655, 661

(D.C.Cir.1993).

Evidence of other crimes, wrongs, or bad acts is admissible under Federal Rule of

Evidence 404(b) if offered for a permissible purpose. Such permissible purposes include “proof

3 of intent, motive, opportunity, plan, knowledge, identity or absence of mistake or accident.”

United States v. Morrow, 2005 WL 3159572 at *3 (D.D.C. Apr. 7, 2005); see also United States

v. Pindell, 336 F.3d 1049, 1056 (D.C. Cir. 2003); United States v. Miller, 895 F.2d 1431, 1436

(D.C. Cir. 1990). This Circuit has made clear that Rule 404(b) “was intended not to define the set

of permissible purposes for which bad-acts evidence may be admitted but rather to define the one

impermissible purpose for such evidence.” Miller, 895 F.2d at 1436. “Rule 404(b) thus is not so

much a character rule as a special aspect of relevance” because it “does not prohibit character

evidence generally, only that which lacks any purpose but proving character.” United States v.

Douglas, 482 F.3d 591, 596 (D.C. Cir. 2007) (citing Bowie, 232 F.3d at 930).

The Court must conduct a two-part analysis to determine admissibility in the Rule 404(b)

context. See Miller, 895 F.2d at 1435. First, the Court considers whether the evidence is

“probative of some material issue other than character.” United States v. Clarke, 24 F.3d 257,

264 (D.C. Cir. 1994); Fed. R. Evid. 404(b). Second, if the Court deems the evidence to be

relevant, the Court should exclude the evidence only if its probative value “is substantially

outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403; Long, 328 F.3d at 662. In

close cases, the rule tilts toward the admission of the uncharged conduct evidence. See United

States v. Johnson, 802 F.2d 1459, 1464 (D.C. Cir. 1986) (“[T]he balance should be generally

struck in favor of admission when the evidence indicates a close relationship to the event

charged.”) (quoting United States v. Day, 591 F.2d 861, 878 (D.C. Cir. 1978)).

The Government seeks to introduce evidence of facts and circumstances surrounding

Defendant’s prior drug offense. In 1996, Defendant pled guilty in the United States District

Court for the District of Columbia (Criminal Case No. 94-394-02) to conspiracy to distribute and

possess with the intent to distribute 50 grams or more of cocaine base. Def.’s Mot. at 2, ECF No.

4 15. Defendant here is charged with three counts of unlawful distribution of cocaine, one count of

conspiracy to distribute and possession with intent to distribute cocaine, and one count of

unlawful distribution of heroin. Superseding Indictment, Jan. 30, 2014, ECF No. 17.

21 U.S.C. §841(a)(1), pursuant to which Defendant is charged here, makes it unlawful for

“any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled substance.” (emphasis added). The

Government intends to introduce the evidence of Defendant’s previous drug offense to show

Defendant’s “knowing and intentional possession with intent to distribute narcotics in this case.”

Govt.’s Mot. for 404(b) evidence, Jan 24. 2014, ECF No. 15. At the motions hearing held in this

matter on May 20, 2014, the Government asserted that Defendant’s prior conviction would

establish that he knew how cocaine looked, and knew how to arrange the time, place, and

manner of a drug transaction.

In support of this, and in order to establish the probative value of the prior offense, the

Government relies largely on the factual proffer presented orally during Defendant’s 1995 plea

hearing. However, perhaps because Mr. Kevin Holland was a co-defendant in the previous

matter with his brother Andre Holland, the Government read only one, anemic factual proffer.

Tr. Plea Hearing, at 19-20, Nov. 30, 1995, Govt.’s Supp. to Mot. Seeking 404(b) Evidence, Ex.

1, ECF. No 23. As a result, the factual proffer does not sufficiently distinguish the degree of each

brother’s involvement in the conspiracy.

The proffer states, for example, that Mr. Kevin Holland scheduled deliveries, and

conducted hand-to-hand transactions on three occasions. Tr. Plea Hearing, at 20. However, the

proffer adds that the drugs being sold were Andre Holland’s, and that on other occasions, he

personally scheduled drug deliveries to be simply executed by his brother Kevin. Id. It is thus

5 unclear how involved Mr. Kevin Holland actually was when scheduling deliveries, or whether he

was in fact anything more than a simple delivery man. The proffer does not allege, for example,

that Defendant ever saw the content of his deliveries, and thus cannot establish that Defendant

knows what cocaine looks like. Similarly, although the proffer alleges that “Mr. Kevin Holland

schedule[d] a delivery,” the proffer does not explain how and with whom these transactions were

arranged, nor does it further allege that Defendant used code words when scheduling the

transactions. Id. Thus, the factual proffer cannot shed any light, other than in the most general

way, of Defendant’s knowledge concerning the drug trade and how to arrange transactions.

Notwithstanding the factual proffer, the Government additionally argues that Mr. Kevin

Holland’s prior conviction is probative as to his knowledge and intention to distribute because, in

entering a guilty plea, Mr. Holland was required to accept that he “knowingly and intentionally

distribute[d] a mixture and substance containing a detectable amount of cocaine base.” Id. at 14-

15. Although this is the element the Government intends to prove, generally speaking, it seeks to

introduce Defendant’s prior conviction for much more specific reasons —1) that the Defendant

can recognize the drug he was allegedly dealing, and 2) to show Defendant’s familiarity with the

relevant terminology and code words used to schedule drug transactions. Defendant’s mere

acceptance of guilt pursuant to the basic elements of the conspiracy charge is not, without more,

sufficiently probative on the particular issues for which the Government seeks to introduce this

evidence. And indeed, courts routinely look for factual similarities above and beyond the bare

elements of a prior conviction to determine the probativeness of a prior offense. See, e.g., United

States v. Crowder 141 F.3d 1202, 1214-15 (D.C. Cir. 1998) (finding that a previous drug offense

provided evidence of modus operandi because the Government presented evidence that the

defendant used certain colored bags for certain quantities and types of cocaine); United States v.

6 Burch, 156 F.3d 1315, 1323-24 (D.C. Cir. 1998) (admitting a prior drug conviction under 404(b)

but emphasizing that Defendant was selling the same substance (crack cocaine) and on the same

block as his previous offense). Because the factual proffer does not clearly establish Defendant’s

knowledge, the Court finds that Defendant’s prior conviction has little, if any, probative value.

The Court thus turns to the second prong of the 404(b) test—whether the probative value

of the other acts evidence is substantially outweighed by the danger of unfair prejudice. Fed. R.

Evid. 403. As the Defendant correctly notes, “[e]vidence of prior wrongful behavior. . . risks that

the jury may infer guilt simply on the basis that the accused has committed wrongful acts.”

Campbell v. United States, 450 A.2d 428, 431 (D.C. 1982). Such evidence “diverts the jury’s

attention from the question of the defendant’s responsibility for the crime charged to the

improper issue of his bad character.” Id. Courts have previously recognized the strong prejudicial

effect of prior drug convictions, “because it invites the jury to infer that [the defendant] has a

propensity for drug offenses” and that he must thus be guilty of this drug offense as well. United

States v. Watson, 171 F.3d 695, 703 (D.C. Cir. 1999); see also United States v. (Dennis)

Mitchell, 49 F.3d 769, 776–77 (D.C. Cir. 1995); United States v. (Timothy) Johnson, 27 F.3d

1186, 1193 (6th Cir. 1994); United States v. (Michael) Johnson, 970 F.2d 907, 912-14 (D.C. Cir.

1992). Although many courts have nonetheless allowed evidence of prior drug convictions

pursuant to 404(b), the probative value of the evidence was quite high in those cases. See, e.g.,

Crowder 141 F.3d at 1214-15 (finding probative value in the prior conviction because the

Government presented evidence that the defendant used certain colored bags for different

quantities and types of cocaine, thus indicating a modus operandi); Burch 156 F.3d at 1323-24

(finding probative value in the prior conviction because the government was able to establish that

in both the prior conviction and the present matter, the defendant was found selling the same

7 substance on the same street block). Because the probative value of Mr. Holland’s prior

conviction is quite minimal, and because the similarity between the two convictions is likely to

prejudice the jury into improperly inferring that because Defendant was previously a drug dealer

he probably still is one, the Court finds that the prejudicial effect of the evidence substantially

outweighs the probative value, and thus denies the Government’s motion for 404(b) evidence.

B. Federal Rule of Evidence 609(a)(1)

The Government seeks to introduce evidence of Defendant’s prior convictions pursuant

to Fed. R. Evid. 609, for the purpose of attacking Defendant’s character for truthfulness should

the Defendant choose to testify as a witness. Govt.’s Notice of Impeachment, Jan. 24, 2014, ECF

No. 16. The Government offers two prior convictions under Fed. R. Evid. 609: assault in the

second degree pursuant to Md. Code, Crim. Law §3-203, and theft under $500 pursuant to Md.

Code, Crim. Law §7-104(g)(2). The penalty for each of these convictions is over one year.

Fed. R. Evid. 609(a)(1) allows a party to attack a “witness’s character for truthfulness by

evidence of a criminal conviction for a crime that, in the convicting jurisdiction, was punishable

by death or by imprisonment for more than one year.” Fed. R. Evid. 609(a)(1). Such evidence

“must be admitted in a criminal case in which the witness is a defendant, if the probative value of

the evidence outweighs its prejudicial effect to that defendant.” Fed. R. Evid. 609(a)(1)(B)

(emphasis added). This Circuit has previously held that “all felonies have some probative value

on the issue of credibility.” United States v. Lipscomb, 7902 F.2d 1049, 1062 (D.C. Cir. 1983).

Nevertheless, the Court must still determine whether the probative value of admitting this

8 evidence is outweighed by the prejudicial effect to the Defendant. Id. at 1058; Fed. R. Evid.

609(a)(1)(B).1

The Court balances several factors in determining whether the probative value of the

proffered prior convictions is outweighed by unfair prejudice to the Defendant: “(1) the kind of

crime involved; (2) when the conviction occurred; (3) the importance of the witness’ testimony

to the case; (4) the importance of the credibility of the defendant; and (5) generally, the

impeachment value of the prior crime.’” United States v. Pettiford, 238 F.R.D. 33, 41 (D.D.C.

2006) (citing United States v. Butch, 48 F. Supp. 2d 453, 464 (D.N.J. 1999). “This list does not

exhaust the range of possible factors, but it does outline the basic concerns relevant to the

balancing under Rule 609(a)(1).” United States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir.

1980)).

The Court first considers the type of crime involved, and whether that crime is

particularly probative of the Defendant’s truthfulness. Under Rule 609(a)(1), a court “may admit

evidence of a witness’s felony convictions that do not constitute crimen falsi, subject to

balancing pursuant to Rule 403,” United States v. Estrada, 430 F.3d 606, 615 (2d Cir. 2005)

(emphasis in original), because “all felonies have some probative value on the issue of

credibility.” Lipscomb, 702 F.2d at 1062. Thus, “[w]hile many felonies exemplifying untruthful

1 Fed. R. Evid. 609(a)(2) mandates that the Court allow a “witness’s character for truthfulness to be attacked by evidence of a criminal conviction. . . for any crime regardless of the punishment…if the court can readily determine that establishing the elements of the crime required proving–or the witness’s admitting–a dishonest act or false statement.” Fed. R. Evid. 609(a)(2). Under Rule 609(a)(2), the Court would not be permitted to balance the probative value of the prior conviction against the prejudice to the Defendant. Instead, Rule 609(a)(2) “creates a per se rule that probativeness outweighs prejudice for crimes” involving a dishonest act or false statement, and thus, such acts must be admitted into evidence. United States v. Lipscomb, 702 F.2d 1049, 1064 (D.C. Cir. 1983). Neither party here argues that the Defendant’s prior convictions fall under this mandatory provision. As a result, the Court only analyzes this motion under 609(a)(1).

9 behavior fall within the ambit of Rule 609(a)(2), many crimes that do not fit that provision are

nonetheless quite probative of veracity.” Estrada, 430 F.3d at 618.

Nevertheless, courts have held that certain types of felonies are not particularly probative

of a witness’s credibility under 609(a)(1), especially when they do not require plaintiffs to make

a false statement. See, e.g., United States v. Rosales, 680 F.2d 1304, 1306–07 (10th Cir. 1981)

(excluding convictions for forgery, burglary, conspiracy, illegal possession of a firearm, and

violation of narcotics laws as “not normally suggest[ive of] the special probative value on the

issue of credibility contemplated by Fed. R. Evid. 609(a)(1)”); Furtado v. Bishop, 604 F.2d 80,

93–94 (1st Cir. 1979) (finding convictions for armed robbery, burning a building, and assault and

battery were “not particularly probative of credibility”).

“An influential case from the Court of Appeals for the District of Columbia. . .

distinguished between crimes that reflect adversely on a persons integrity, and which therefore

bear on honesty—such as those involving deceit, fraud, and theft—and acts of violence, ‘which

may result from a short temper, a combative nature, extreme provocation, or other causes, [and]

generally have little or no direct bearing on honesty and veracity.’” Estrada, 430 F.3d at 617-18

(citing Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967)). In essence, this Circuit

stated in Gordon that “convictions which rest on dishonest conduct relate to credibility whereas

those of violent or assaultive crimes generally do not.” Gordon, 383 F.2d at 940.

Defendant’s prior conviction for assault pursuant to Md. Code, Crim. Law §3-203(a) did

not require an individual to make a false statement in order to be found guilty. Indeed, the statute

simply states that “[a] person may not commit an assault.” Md. Code, Crim. Law §3-203(a). Nor

did the Government present any additional evidence at the motions hearing that this assault

involved dishonest conduct or false statements. Instead, the assault charge allegedly arose out of

10 a “stick-up” involving Defendant and his brother Andre Holland. As a result, the Court finds that

Plaintiff’s previous assault is not particularly probative in regards to Defendant’s character for

truthfulness.

Theft pursuant to Md. Code, Crim. Law §7-104(g)(2) similarly does not require

Defendant to make a false or dishonest statement as an element of the crime. And indeed,

Defendant’s conviction for theft allegedly arose out of the same facts as the assault—a mugging.

According to the facts presented during the motions hearing, Defendant did not make any false

or dishonest statements in connection with his conviction for theft. Of course, crimes such as

robbery still “show[ ] conscious disregard for the rights of others” and thus “reflect[ ] more

strongly on credibility than, say, crimes of impulse, or simple narcotics or weapons possession.”

Lipscomb, 702 F.2d at 1071. Nevertheless, this Circuit has previously held that crimes of theft

not involving the use of false statements are not particularly probative as to the Defendant’s

character for truthfulness. See, e.g., United States v. Smith, 551 F.2d 348, 364 (D.C. Cir. 1976)

(finding that armed robbery is not a crime of dishonesty or false statement); United States v.

Dorsey, 591 F.2d 922, 935 (D.C. Cir. 1978) superseded by statute as stated in United States v.

Fennell, 53 F.3d 1296, 1300 (D.C. Cir. 1995) (holding that shoplifting is not a crime of

dishonesty or false statement); United States v. Fearwell, 595 F.2d 771, 776 (D.C. Cir. 1978)

(same for petit larceny). Given the nature of the theft and its factual connection to the conviction

for assault, which is otherwise considered a crime of violence, the Court finds that the theft has

only minimal probative value into Defendant’s character for truthfulness.

The Court thus turns to the prejudicial effect of the prior convictions. Generally, prior

convictions have at least some prejudicial effect on a Defendant, as a jury could “generaliz[e] a

defendant’s earlier bad act into bad character and tak[e] that as raising the odds that he did the

11 later bad act now charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997). Moreover, this

Circuit has recognized that impeachment through use of prior convictions has a greater

prejudicial effect where, as here, the impeached witness is also the Defendant. Lipscomb, 702

F.2d at 1063 (noting that “[t]here is less risk of prejudice when a defense witness other than the

defendant is impeached through a prior conviction because the jury cannot directly infer the

defendant’s guilt from someone else’s criminal record”). Moreover, as the Government has

stated, in impeaching Defendant with these prior convictions, it can do no more than to ask

whether he was convicted of the crime. See, e.g., United States v. Morrow, 537 F.2d 120, 141

(5th Cir. 1976). It cannot further explore the facts surrounding the crimes. Id. As a result, the jury

will only know that Defendant was convicted of “assault” and “theft,” but will not know the

seriousness of those alleged crimes, and thus their general probative value of Defendant’s

character for truthfulness. As the Supreme Court recognized, “evidence of the name or nature of

the prior offense generally carries a risk of unfair prejudice to the defendant.” Old Chief, 519

U.S. at 185.

Finally, this Circuit has recognized that a limiting instruction would not be particularly

effective in this scenario. When “[t]he jury is told to consider the defendant's prior conviction

only on the issue of credibility and not on the overall issue of guilt. . .the jury [is required] to

perform ‘a mental gymnastic which is beyond, not only their powers, but anybody else’s.’”

Lipscomb, 702 F.2d at 1062 (citing Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932)

(Hand, J.)). The Court thus finds that the prior convictions’ probative value of Defendant’s

character for truthfulness is quite minimal, and is outweighed by the prejudicial nature of the

evidence. As a result, evidence of Defendant’s prior Maryland convictions is inadmissible for

purposes of impeachment.

12 C. Motion to Suppress Electronic Information Obtained from Wiretap

Defendant next moves to suppress the contents of all intercepted wire communications

and seized electronic communications. Def.’s Mot. to Suppress Electronic Communications, Feb.

5, 2014, ECF No. 18. The legal standards that govern an application for a court order authorizing

the interception of wire, oral, or electronic communications are defined by statute:

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., authorizes the district court to approve an application for the interception of certain wire, oral, or electronic communications. 18 U.S.C. § 2518. The wiretap statute requires that an application for a wiretap shall be in writing, under oath, and shall contain certain information including “a full and complete statement of the facts and circumstances relied upon by the applicant[ ] to justify his belief that an order should be issued.” Id. § 2518(1). On the basis of the facts submitted by the applicant, the district court may authorize a wiretap upon finding that (1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that “particular communications concerning that offense will be obtained” through an interception; (3) “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried”; and (4) probable cause exists to believe that the communication facility sought to be wiretapped “[is] being used, or [is] about to be used, in connection with the commission of [the] offense.” Id. § 2518(3)(a-d); see United States v. Donovan, 429 U.S. 413, 435 (1977). The determination that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(3)(c), is referred to as the “necessity requirement,” and it is the “keystone of congressional regulation of electronic eavesdropping.” United States v. Williams, 580 F.2d 578, 587–588 (D.C. Cir. 1978).

The wiretapping statute also requires that “[e]very [wiretap] order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable [and] shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception....” 18 U.S.C. § 2518(5). This is referred to as the “minimization requirement.” Although “[t]he statute does not forbid the interception of all nonrelevant conversations,” the government must make reasonable efforts to “minimize” the interception of such conversations. Scott v. United States, 436 U.S. 128, 139–40 (1978). The statute also provides that an order authorizing an interception cannot extend “for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days.” 18 U.S.C. §2518(5).

13 The wiretap statute provides that “no part of the contents of [intercepted] communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding ... if the disclosure of that information would be in violation of this chapter.” Id. § 2515. The “aggrieved person” may move to suppress the introduction of wiretap evidence or its fruits if “the communication was unlawfully intercepted,” the “order of authorization or approval under which it was intercepted is insufficient on its face,” or if “the interception was not made in conformity with the order of authorization or approval.” Id. § 2518(10)(a)(i-iii); see Donovan, 429 U.S. at 433–34.

United States v. Carter, 449 F.3d 1287, 1292–93 (D.C. Cir. 2006).

On December 16, 2011, the Honorable Judge Bates approved a wiretap warrant over

telephone number 704-277-7076, which the FBI had identified as a number connected to the

Defendant. Def.’s Opp’n. at 6. Judge Bates further authorized a “roving wiretap” for the

interception of changing cellphones used by the Defendant for a 30-day period. Id. Judge Bates

extended this roving wiretap for an additional 30-day period on January 26, 2012 and again on

February 25, 2012. Id. at 6-9.

Between December 16, 2011, and March 25, 2012, the FBI began to tap cellphone

numbers not specifically listed in the wiretap warrant. The Government believes that it was able

to intercept these cellphone conversations and text messages pursuant to Judge Bates’s roving

wiretap authorization. Def.’s Opp’n, at 7-9. To cover its bases, the Government provided Judge

Bates with additional memoranda detailing the new cell numbers it intended to track. Id. at 7-10.

Judge Bates signed these memoranda. Id. Pursuant to the Court’s request at the motions hearing,

the Government has submitted these materials to the Court ex parte. See Govt’s Ex Parte

Supplement, May 22, 2014, ECF No. 34. The Court now orders the Government to produce these

documents for defense counsel.

Defendant now seeks to suppress evidence obtained pursuant to the Government’s

wiretap of four cellphone numbers. He argues that these numbers could not be subsumed under

Judge Bates’s initial roving wiretap because the Government did not submit evidence describing

14 the manner in which they obtained those new numbers. Defendant further seeks to suppress

evidence obtained from all of the Government’s wiretaps, arguing that the Government failed to

demonstrate the necessity for electronic surveillance in general, and failed to comply with the

statute’s minimization requirement.

1. Probable Cause.

To determine whether probable cause exists for a wiretap courts apply the same legal

standards used to determine whether probable cause exists for a search warrant. See, e.g., United

States v. Diaz, 176 F.3d 52, 110 (2d Cir. 1999). Accordingly, a federal judge must “simply. . .

make a practical, common-sense decision whether, given all the circumstances set forth in the

affidavit. . . including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay

information, there is a fair probability that. . . evidence of a crime” will be obtained by the

interception of wire, oral, or electronic communications.” Illinois v. Gates, 462 U.S. 213, 238

(1983). “While each fact standing alone may be insufficient, the combination of all the facts can

establish probable cause.” United States v. Gilliam, 167 F.3d 628, 633 (D.C. Cir. 1999). It is the

duty of a reviewing court “to ensure that the [judge issuing the wiretap order] had a ‘substantial

basis for ... conclud[ing]’ that probable cause existed.” Gates, 462 U.S. at 238–39.

Defendant does not dispute that Judge Bates had probable cause in issuing the original

wiretap warrant on December 16, 2011. Nor does the Defendant contest the general validity of

the roving wiretap. Defendant only argues that, before the Government intercepted cellphone

conversations pursuant to the roving wiretap, it was required to submit proof to the authorizing

Judge describing how it obtained the new numbers, and how it verified that Defendant was

connected to those numbers.

15 Although no Circuit has addressed this particular issue, other courts have upheld the

constitutionality of Section 2518(11)(b) of Title III of the Omnibus Crime and Control Safety

Act’s (“Title III”). Section 2518(11)(b) of Title III, authorizing the use of roving wiretaps,

states, in relevant part:

(11) The requirements of subsections (1)(b)(ii) and (3)(d) of this section relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if….

(b) in the case of an application with respect to a wire or electronic communication--

(i) the application is by a Federal investigative or law enforcement officer and is approved by the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an acting Assistant Attorney General;

(ii) the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing that there is probable cause to believe that the person's actions could have the effect of thwarting interception from a specified facility;

(iii) the judge finds that such showing has been adequately made; and

(iv) the order authorizing or approving the interception is limited to interception only for such time as it is reasonable to presume that the person identified in the application is or was reasonably proximate to the instrument through which such communication will be or was transmitted.

18 U.S.C. §2518(11)(b). In contrast, to obtain a non-roving wiretap, the investigative officer

must submit:

(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including:

(i) details as to the particular offense that has been, is being, or is about to be committed,

16 (ii) except as provided in subsection (11), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted,

(iii) a particular description of the type of communications sought to be intercepted,

(iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted

18 U.S.C. §2518(1)(b) (emphasis added). Section 2518(1)(b)(ii) specifically exempts roving

wiretap authorization obtained pursuant to §2518(11) from the “particularity” requirement. Thus,

§2518(11) acts as a substitute to §2518(1)(b)(ii) for situations in which the Government cannot

easily identify the facility used for communication, such as a cell phone number. This is

precisely why authorization for a roving wiretap requires the Judge to make a finding that the

“person's actions could have the effect of thwarting interception from a specified facility.” 18

U.S.C. §2518(11)(b)(ii). Because the parties do not dispute that the roving wiretap was properly

issued by Judge Bates, the roving wiretap covers other additional cell phone numbers linked to

Defendant, even if no additional proof is submitted for those numbers.

Other courts have similarly upheld the constitutionality of the roving wiretap provision,

albeit on a slightly different issue. Nevertheless, these courts have specifically noted that “[t]he

conditions imposed on ‘roving’ wiretap surveillance. . . satisfy the purposes of the particularity

requirement.” United States v. Petti, 973 F.2d 1441, 1445 (9th Cir. 1992); see also United States

v. Gaytan, 74 F.3d 545, 553 (5th Cir. 1996); United States v. Bianco, 998 F.2d 1112, 1120-25

(2d Cir. 1993) (abrogated on other grounds by Groh v. Ramirez, 540 U.S. 551 (2004)); United

States v. Jackson, 207 F.3d 910, 914 (7th Cir. 2000) (reconsidered on other grounds); United

States v. Savoy, 883 F. Supp. 2d 101, 116-18 (D.D.C. 2012). Moreover, these courts have

recognized that, in enacting the roving wiretap provision, “Congress contemplated the roving

surveillance of suspects who. . . use cloned cellular phone numbers and changed numbers

17 frequently to avoid detection.” Savoy, 883 F. Supp. 2d at 116. The roving wiretap thus authorizes

the Government to intercept any number connected to a particular individual, even if they cannot

identify the number that they are tracking. Id.

Defendant’s argument seeks to limit the scope of the roving wiretap by arguing that the

Government must first inform the judge of the facts surrounding its acquisition of the number—

which is essentially what the Government is otherwise required to do under 18 U.S.C.

§2518(1)(b)(ii) when obtaining a non-roving warrant. Practically speaking then, the government

would be required to return to the authorizing judge each time the suspect changes cell phones,

and obtain new authorization to intercept communications from that phone. This would impose a

burden on the government, especially in cases such as this one. In the instant case, Mr. Holland

employed six different cellphone numbers in the time period between January 2011 and

December 2011, and an additional seven numbers between December 16, 2011 and March 25,

2012. Govt.’s Omnibus Opp’n at 4–9, n.2. Defendant’s proposed requirement would thus

eviscerate the purpose of the roving wiretap, which was specifically adopted to remedy the

challenges the government faces when investigating sophisticated individuals seeking to thwart

surveillance. See United States v. Hermanek, 289 F.3d 1076, 1087 (9th Cir. 2002); Savoy, 883 F.

Supp. 2d at 116. If the government has to return to the Court and obtain authorization each time

the Defendant switched numbers, there would be no purpose to the roving wiretap.

Moreover, the Court notes that the heightened procedural safeguards provided in 18

U.S.C. §2518(11)(b) allay any additional constitutional concerns. The roving wiretap does “not

permit a ‘wide-ranging exploratory search’” and requires the government to first establish that “it

is the suspect’s purpose to thwart interception” by changing communication devices. Petti, 973

F.2d at 1445. The affidavit first requesting a roving wiretap established that Defendant had “used

18 at least seven different cellular telephones” in a period of six months, while communicating with

Confidential Source 1 (CS-1). Affidavit in Support of Application, at ¶15, Feb. 10, 2014, ECF

No. 24, Ex. 1. The Affidavit further notes that Defendant had “previously been intercepted in a

T-III investigation” and “was made aware of his intercepted telephone calls during the discovery

process and at trial” in the previous case. Id. The affidavit concluded that the Defendant was

“keenly aware and mindful of law enforcement’s ability and concerted efforts to intercept

telephones.” Id. Additionally, the affidavit outlined several minimization techniques. One such

technique required all intercepted electronic communications to first be reviewed by a case

agent, who would disclose those communications to the Assistant United States Attorneys,

outside law enforcement, defense counsel, or the public, only if he or she found them to be

“pertinent.” Id. at ¶70. The Court thus finds that the affidavit met the required procedural

safeguards provided in 18 U.S.C. §2518(11)(b).

Because “the conditions imposed by the roving wiretap provision. . . and. . . the many

safeguards mandated by the statute for both roving and fixed interceptions satisfy the Fourth

Amendment requirement that ‘no greater invasion of privacy [occur] than [is] necessary’ to meet

‘the legitimate needs of law enforcement,’” Id. citing Katz v. United States, 389 U.S. 347, 355-56

(1967), and because the affidavit met the required standards here, the Court finds that the statute

does not obligate the Government to submit additional information to the authorizing judge for

cell-phone numbers obtained pursuant to a roving wiretap.

Despite not having to do so under the statute, the Government has in fact returned to the

Court each time the Defendant changed phones and submitted detailed memoranda to the

authorizing Judge. Memorandum for 804-479-5646, Dec. 28, 2011, Ex. 1; Memorandum for

864-525-9522, Feb. 7, 2014, Ex. 2; Memorandum for 202-322-5484, Feb. 9, 2012, Ex. 4;

19 Memorandum for 443-930-7339, March 19, 2012, Ex. 5. These memoranda described in detail 1)

how law enforcement officials discovered that the Defendant had stopped using the currently

tracked cell phone, 2) how law enforcement then utilized pen registers and toll records to

determine the new number Defendant began to use, and 3) how law enforcement confirmed that

it was in fact the Defendant using the new number. Id. Judge Bates accepted and signed each of

these memoranda. Id. The Court accordingly finds that the Government exceeded the

information required for a finding of probable cause.

2. Necessity

The necessity requirement in 18 U.S.C. § 2518 mandates that a wiretap application

include “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). Courts will “reject[ ] generalized and conclusory

statements that other investigative procedures would prove unsuccessful.” United States v.

Williams, 580 F.2d 578, 588 (D.C. Cir. 1978). However “[b]ecause. . . the statutory command

was not designed to ‘foreclose electronic surveillance until every other imaginable method of

investigation has been unsuccessfully attempted,’” the government will meet its burden of

demonstrating necessity if it shows that “other techniques are impractical under the

circumstances and that it would be unreasonable to require pursuit of those avenues of

investigation.” Williams, 580 F.2d at 588. Moreover, this Circuit has held that “a court may

authorize the wiretap of the phone of a member of an operation if traditional investigative

techniques have proved inadequate to reveal the operation's full ‘nature and scope.’” United

States v. Brown, 823 F.2d 591, 598 (D.C. Cir. 1987).

20 The D.C. Circuit has previously held that “the necessity requirement was met by specific

evidence in affidavits establishing that a drug trafficking operation existed, the defendants were

involved in the operation, and the government tried to gather information about the defendant in

other ways.” Glover, 583 F. Supp. 2d at 36–37 (referencing United States v. Carter, 449 F.3d

1287, 1293 (D.C. Cir. 2006); United States v. Sobamowo, 892 F.2d 90, 93 (D.C. Cir. 1989)).

Here, the Government attests that Defendant’s proposed methods (physical surveillance, use of

confidential witnesses, mail covers, search warrants, and other investigative techniques) could

not have adequately led to Defendant’s drug suppliers, because Defendant was technologically

savvy. Other courts have found the necessity exemption satisfied based on much less information

concerning exhaustion of alternative methods.

In Carter, for example, the government only attempted to use physical surveillance,

which the government found would not succeed because of the defendant's counter-surveillance

methods and “because physical surveillance alone would not generate detailed information on

the activities and associates [of the members of the operation].” 449 F.3d at 1294. Similarly, in

Sobamowo, the government attempted to use foreign sources and informers, checked federal law

enforcement agency records, and conducted physical surveillance. 892 F.2d at 93. The D.C.

Circuit found these efforts adequate and noted that the government “was not required to

enumerate every technique or opportunity missed or overlooked.” Id.

In the Government’s initial December 2011 affidavit, the Government noted that it had

employed normal investigative procedures, including: surveillance, debriefings of cooperating

witnesses, controlled purchases of narcotics by cooperating sources, consensual recordings of

conversations, review of pen register and telephone records, and review of public records.

Affidavit in support of Application for Wiretap, Dec. 16, 2011, Notice of Filing, Ex. 1, ECF No.

21 24. Although these methods had proven successful in establishing an ongoing illegal narcotics

business, the Government stated that these methods had not “yielded sufficient evidence to

ascertain the full scope of the narcotics trafficking conspiracy.” Id. Specifically, the investigators

were hoping to identify all members of the conspiracy, including co-conspirators, the sources of

funds for the drug trafficking organization, and the location of the organization’s stash houses for

narcotics and drug proceeds. Id. at ¶53.

The affidavit further explained the deficiencies in each traditional surveillance method.

Undercover agents and cooperating sources were unable to penetrate the organization and gain

access to the identity of suppliers, or the manner in which the members laundered their illegal

drug proceeds. Id. at ¶¶54, 56. The cooperating sources did not have sufficient access to the

Defendant’s suppliers and could not provide information regarding “the locations of their stash

houses, approximate quantities of cocaine being distributed by the drug organization, and what

methods/channels [we]re utilized to transport narcotics and/or drug proceeds.” Id. at ¶54.

Moreover, the affidavit concluded that even new cooperating witnesses would not have access to

the full scope of the trafficking operation. Id. “In order to thwart law enforcement” and to

“protect their own financial interest,” “a dealer would never introduce a customer to his

supplier.” Id. The dealer would be worried that “the customer would then cut the dealer, and the

dealer’s profit, out of the supply chain,” and the supplier would be worried that he or she was

“vulnerable to a customer who is ‘compromised’ by law enforcement or intent on theft from the

supplier.” Id.

Controlled drug purchases were insufficient to gather the full scope of the trafficking

operation for much the same reason. Because a dealer has no interest “in divulging the names of

his drug suppliers,” the controlled purchases could not yield sufficient evidence concerning

22 Defendant’s suppliers, their whereabouts, their drug stash locations, or the intricate details of

their narcotics operation. Id. at ¶55.

Similarly, physical surveillance, although helpful in identifying certain meeting points,

was of limited value as it could not, by itself, establish the necessary elements of a criminal

charge. Id. at ¶57. For example, although agents were able to trail Defendant to certain meeting

points through physical surveillance, they:

could not observe what HOLLAND was doing, whether or not HOLLAND was meeting with someone else, or whether or not HOLLAND’S visit was even related to his narcotics trafficking. However, even if agents had observed HOLLAND meeting with someone, the mere fact that HOLLAND met with another individual in a shopping plaza does not prove that their encounter was illicit. . . . Such an observation alone cannot provide sufficient evidence necessary for successful prosecution.

Id. at ¶58. Moreover, the affidavit noted that physical surveillance had to be used cautiously

given Mr. Holland’s vigilance in avoiding detection, as evidenced by his sophistication with

cellphone tracking. Id. Prolonged surveillance could lead to detection and could “totally nullify

the investigation to date.” Id. For example, “if physical surveillance was detected the

conspirators might radically change their modus operandi, including telephone numbers and the

persons with whom they were dealing drugs.” Id.

Use of grand jury witness subpoenas likewise would not be effective, as “the only known

witnesses who could provide evidence to a grand jury” of the full scope of the narcotics

trafficking “are the persons intimately involved in the criminal activity at the highest levels” and

thus “unlikely…to testify voluntarily or truthfully.” Id. at ¶63. The affidavit predicted that such

witnesses would likely “assert their Fifth Amendment privilege not to testify” and would further

“cause the co-conspirators to become more cautious in their activities, to flee to avoid

investigation or prosecution, to destroy evidence, to threaten the lives of the cooperating

individuals, or otherwise compromise the investigation.” Id. The use of search warrants, too,

23 would “alert the target subjects to the ongoing investigation” and thus result in many of the same

consequences already outlined above. Id. at ¶66. For example, “co-conspirators would likely

relocate their base of operations and obtain new telephone numbers,” thus mooting the

effectiveness of a physical search warrant. Id. Moreover, co-conspirators arrested pursuant to this

method generally refuse to incriminate themselves or their close working associates, unless law

enforcement is able to present solid evidence of their involvement. Id. Such evidence did not

exist at the time of the affidavit, and so a physical search warrant would not have succeeded in

ascertaining evidence of the full scope of the trafficking operation. Id.

Given the thorough explanation and analysis in its affidavit, the Court finds that the

Government sufficiently met the necessity requirement prior to obtaining the wiretap

authorization.

3. Minimization

Defendant finally argues that the Government failed to make an initial prima facie

showing that it complied with the minimization requirement. Defendant asks that the

Government first carry its prima facie burden, arguing that he will rebut that showing once it is

made.

All wiretap orders must contain a provision that requires that the wiretap “be conducted

in such a way as to minimize the interception of communications not otherwise subject to

interception.” 18 U.S.C. § 2518(5). “What the wiretapping statute forbids is failure by the

government to make reasonable efforts to minimize interceptions of non-pertinent

communications. Carter, 449 F.3d at 1295. As a result, “[b]efore the court can find that the

government failed to comply with the minimization requirement, the defendant must show that

‘some conversation was intercepted which clearly would not have been intercepted had

24 reasonable attempts at minimization been made.’” United States v. Savoy, 883 F. Supp. 2d 101,

107-8 (D.D.C. 2012) (quoting United States v. Scott, 516 F.2d 751, 757 (D.C. Cir. 1975); see

also United States v. Giacalone, 853 F.2d 470, 482 (6th Cir. 1988) (holding that the burden of

production and persuasion rests on the person seeking to suppress wiretap evidence on the basis

of improper minimization); United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985)

(holding that “[a] motion to suppress must in every critical respect be sufficiently definite,

specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is

presented” and “must allege facts which, if proven, would provide a basis for relief”); United

States v. Duarte–Rosales, 2008 WL 140665, at *3 (N.D.Ga. Jan.11, 2008) (rejecting

minimization challenge because the defendant asserted no specific facts to suggest that the

requirements were not met). “Without some showing on Defendant's part, this Court cannot

conclude that the Government did not minimize its interception of non-pertinent calls or that a

hearing should be held to require the Government to prove that it properly minimized

interception of irrelevant calls.” United States v. Maldonado, 2014 WL 61483, at *21 (N.D.Ga.

Jan. 8, 2014). Defendant has not identified conversations containing non-pertinent information

that ought to have been, but were not, minimized. Absent such identification, the Government

has not been provided information to which it is required to respond. Consequently, the Court

cannot find that the Government failed to minimize non-pertinent communications.

* * *

Because the Government’s wiretap meets all three requirements under Title III—probable

cause, necessity, and minimization—the Court denies Defendant’s motion to suppress evidence

obtained pursuant to the wiretap.

25 D. Motion for Disclosure of Brady and Giglio Information and for the Early Production of Jencks Information

Defendant next requests that the Court order the Government to provide him with Brady,

Giglio, and Jencks materials. Def.’s Mot. for disclosure of Brady, Giglio and Jencks Information,

Feb.5, 2014, ECF No. 19. In its motion, Defendant requests several types of information from

the Government, but without any specificity. For example, Defendant requests “copies of any

indictment, complaints or information” brought against “each witness the government intends to

call at trial, or any member of the family of such witness.” Def.’s Mot. ¶4,Feb. 5, 2014, ECF No.

19. Similarly, Defendant requests “any material not otherwise listed which reflects or evidences

the motivation of any witness the government intends to call at trial.” Id. at ¶6.

As the Defendant correctly notes, and the Government agrees, the information Defendant

lists in his motion should be properly disclosed by the Government. However, the Government

states that it understands its Brady and Giglio obligations, has disclosed information pursuant to

these obligations, and will continue to do so in a timely manner. At the motions hearing, defense

counsel agreed that the Government has been timely and forthcoming in its disclosure of Brady

and Giglio information.

Defendant also requests disclosure of Jencks material at this time. However, as the

Government correctly notes, this Circuit has held that “the Jencks Act directs that in a criminal

prosecution, statements made by government witnesses or prospective government witnesses are

not open to discovery or inspection by the defense until said witnesses have testified on direct

examination in the trial of the case.” Tarantino, 846 F.2d at 1414. Moreover, Tarantino has

prohibited early discovery of such information, regardless of whether early disclosure of the

Jencks material may assist the Defendant in preparing for trial. Id. at 1414-15. “In balancing a

26 criminal defendant’s need for such statements against legitimate state interests, Congress provide

for discovery of statements only after the witness has testified, out of concern for witness

intimidation, subornation of perjury, and other threats to the integrity of the trial process.” Id. at

1414. This Circuit has previously recognized that there is an inherent violence and danger that

accompanies the cocaine trade and that disclosure of an informant’s identity exposes them to the

“real potential of retaliation at the hands of cocaine traffickers.” Mays v. Drug Enforcement

Admin., 234 F.3d 1324, 1330-31 (D.C. Cir. 2000); see also United States v. Payne, 805 F.2d

1062, 1065 (D.C. Cir. 1986) (firearms “are as much tools of the [drug] trade as more commonly

recognized drug paraphernalia”); Navegar, Inc. v. United States, 192 F.3d 1050, 1058 (D.C. Cir.

1999) (Congressional Record establishes “ disproportionate link between [assault] weapons and

drug-trafficking and violent crime”); United States v. Holland, 810 F.2d 1215, 1219 (D.C. Cir.

1987) (drug transactions “contribute directly to the violent and dangerous milieu that Congress

sought to eliminate”). And the Government has indicated that Defendant has already shown a

proclivity to disclose the identities of known secret informants to the community at large. Govt.’s

Opp’n. at 22 n.3. Thus the Court finds that the informants’ safety to be a particularly sensitive

issue in this matter, which cautions against early disclosure of Jencks information.

Finally, the Government again states that it understands its obligations under the Jencks Act

and promises to disclose Jencks material in a timely manner, suggesting the Friday before the

week that the witness will testify at trial. Govt’s Opp’n at 21. This Court joins the common

standard practiced by numerous other Judges in this District, and orders the Government to

provide Defendant with the Jencks materials the Friday before the week that the witness will be

testifying.

27 E. Motion to Disclose Identities of Each Confidential Informant Regardless of Whether They Will be Called at Trial

Defendant next moves for the disclosure of the identities of the Government’s

confidential informants, citing to Roviaro v. United States, 353 U.S. 53 (1957), for the

proposition that disclosure is necessary to ensure fundamental fairness and due process. Def.’s

Mot. to Disclose Identities, Feb. 5, 2014, ECF No. 20. The government argues that “the

disclosure of informants names, to the extent that the Defendant does not already know them,

would expose those informants to danger in the violent drug community.” Govt.’s Opp’n., 22.

Moreover, the Government has promised to make any informant who does not testify at trial

available to the Defendant.

The “informant’s privilege” is a well-established doctrine recognizing the “government’s

right to withhold the identity of confidential informants in furtherance of the public’s interest in

encouraging citizens to share with law enforcement officers any knowledge they have about

crimes.” Glover, 583 F. Supp. 2d at 11 (citing to Roviaro, 353 U.S. at 59). Nevertheless, this

privilege is not absolute and must give way if disclosure “is relevant and helpful to the defense

of an accused, or is essential to a fair determination of a cause. . . .” Roviaro, 353 U.S. at 60-61.

It is the Defendant who bears the “heavy burden. . . to establish that the identity of an informant

is necessary to his defense.” United States v. Skeens, 449 F.2d 1066, 1070 (D.C. Cir. 1971).

In assessing whether disclosure is warranted, “the Court must take into consideration the

particular circumstances of the case, including the charged crime, the [d]efendants’ possible

defenses, the potential significance of the informant’s testimony, and other relevant factors.”

Glover, 583 F. Supp. 2d at 12. Defendant argues that fundamental fairness warrants the early

disclosure of confidential informants, “in order to investigate bias, motives to fabricate and to

28 cast doubt upon the credibility of certain witnesses.” Def.’s Mot. to Disclose Identities, 2.

However, the Defendant does not go further to identify any defenses or other arguments of

significance that the early disclosure of an informant’s identity might advance. Id.; see also

United States v. Gaston, 357 F.3d 77, 85 (D.C. Cir. 2004). Moreover, the Government has

indicated that Defendant has already shown a proclivity to disclose the identities of known secret

informants to the community at large. Govt.’s Opp’n., 22 n. 3. Thus, as described further above,

the Court finds the informants’ safety to be a particularly sensitive issue in this matter.

Additionally, it appears that Rovario is not even applicable here. The Government has

represented to this Court that there will only be a small number of cooperating witnesses called

to testify, and that at this time, there are no cooperating witnesses that the Government does not

intend to call to testify. However, as the Government correctly notes, Roviaro and its progeny

only apply when the informant does not testify at trial. See United States v. Palfrey, 515 F. Supp.

2d 120, 126 (D.D.C. 2007); Glover, 583 F. Supp. 2d at 12. Thus, there appear to be no

cooperating witnesses to which the logic of Rovario applies. 2

Regardless, the Court does not believe that the Defendant shall be prejudiced by a denial

of this motion. To the extent that the Defendant does not already know the identities of the

Government’s cooperating witnesses, he shall have adequate time to investigate the biases for

such a small group of individuals when he receives such information closer to the time of their

proposed testimony. Moreover, the Government has promised to make non-testifying informants

available to the Defendant at the commencement of trial, and the Court presumes that such

2 The Court notes that Rovario v. United States, 353 U.S. 53, 65 (1957), involved a case in which the Government’s informer was the sole participant, other than the accused, in the transaction charged. In the matter at hand however, it is unclear whether the Government has employed any cooperating witnesses who were not also participants in, or witnesses of, the charged crime.

29 informants will be made at a “time that affords the defendants a meaningful opportunity to

ascertain whether these individuals have any information that is material to the defense.” Glover,

583 F. Supp. 2d at 13. Accordingly, Defendant’s motion to disclose the identities of confidential

informants is denied.

F. Motion to Suppress Tangible Evidence

Defendant moves to suppress tangible evidence obtained pursuant to the Government’s

warranted search of 8801 Lottsford Road, Apt. 155 in Largo, MD. Def.’s Mot. to Suppress

Tangible Ev., Feb. 5, 2014, ECF No. 21. During that search, it is alleged that mail matter,

receipts, tax information, bank documents, and other miscellaneous records were recovered.

Defendant argues that these tangible items must be suppressed, as the warrant to search the

property was not supported by probable cause.

As already stated above, in determining whether probable cause for a warrant exists, a

federal judge must “simply. . . make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit. . . including the ‘veracity’ and ‘basis of knowledge’ of

persons supplying hearsay information, there is a fair probability that. . . evidence of a crime”

will be obtained. Illinois v. Gates, 462 U.S. 213, 238 (1983). “While each fact standing alone

may be insufficient, the combination of all the facts can establish probable cause.” United States

v. Gilliam, 167 F.3d 628, 633 (D.C. Cir. 1999). It is the duty of a reviewing court “to ensure that

the magistrate had a ‘substantial basis for. . . conclud[ing]’ that probable cause existed.” Gates,

462 U.S. at 238–39.

Defendant makes only one argument in arguing that the affidavit did not establish

probable cause—that the affidavit provides only a “tenuous nexus between the alleged narcotics

transaction and the target location.” Def.’s Mot. to Suppress Tangible Ev. at 5, Feb. 5, 2014, ECF

30 No. 21. This Circuit, however, has rejected such an argument in the past, instead finding

sufficient probable cause where an affidavit relied on expert testimony that “drug dealers

frequently keep business records, narcotics, proceeds from sales, and firearms in their houses.”

United States v. Johnson, 437 F.3d 69, 72 (D.C. Cir. 2006); see also, United States v. Thomas,

989 F.2d 1252, 1254 (D.C. Cir. 1993) (“observations of illegal activity outside of the home can

provide probable cause for the issuance of a search warrant…even in the absence of an allegation

that any illegal activity occurred in the home itself.”).

In his affidavit, investigator Derek Starliper stated that he had participated in

investigations of criminal activity, including those pertaining to drug trafficking activities.

Affidavit in support for Search Warrant of Physical Property, at ¶2, Jan. 31, 2013, Govt.

Supplement, Ex. 1, ECF No. 30. He has previously worked in the Organized Crime and Drug

Enforcement Task Force and has experience investigating individuals who “as a part of their

narcotics trafficking, also commit money laundering offenses and use a variety of means to hide

the true source of their narcotics income.” Id. at ¶3. Mr. Starliper further attests that, based on

this training and experience, he knows that “individuals who deal in illegal controlled substances

keep such substances, as well as paraphernalia, in their residences.” Id. at ¶5a. Moreover, Mr.

Starliper attests that Mr. Kevin Holland had executed a lease in his name for the identified target

location. Finally, Mr. Starliper observed Defendant’s car parked in the garage at this location

immediately following observed narcotics transactions. Id. at ¶ 12. Pursuant to these facts, the

Court finds that there was a fair probability that the Defendant, who had been adequately

described as having engaged in drug transactions, would keep contraband or other evidence of

his crime in his residence, despite the fact that he had not been alleged to have engaged in drug

31 transactions there. Thus, the Court finds there to be sufficient probable cause for the warrant

authorizing a search of 8801 Lottsford Road, Apt. 155.

Defendant also argues that the affidavit establishing probable cause to search 8801

Lottsford Road, Apt. 155, should be suppressed pursuant to Franks v. Delaware, 438 U.S. 154,

155-56 (1978), because it relied on misleading material statements, and omitted critical facts that

would have undermined the basis for the issuing Judge’s finding of probable cause. Def.’s Mot.

to Suppress Tangible Ev. At 6. In order to challenge an affidavit pursuant to Franks, the

Defendant must show that “(1) the affidavit contained false statements; (2) the statements were

material to the issues of probable cause; and (3) the false statements were made knowingly and

intentionally, or with reckless disregard for the truth.” United States v. Richardson, 861 F.2d

291, 293 (D.C. Cir. 1988). Franks has also been held to apply to material omissions—“‘material’

meaning that their ‘inclusion in the affidavit would defeat probable cause.’” United States v.

Spencer, 530 F.3d 1003, 1007 (D.C. Cir. 2008) (quoting United States v. Colkley, 899 F.,2d 297,

301 (4th Cir. 1990)). As a general rule, there is a “presumption of validity with respect to the

affidavit supporting the search warrant.” Franks, 438 U.S. at 171.

Defendant argues that the affidavit omitted that, in the Government’s three-year

investigation of Defendant’s drug activities, law enforcement officers never stopped Defendant

“while he purportedly was in possession of either drugs or money.” Def.’s Mot. at 6. The

Defendant concludes that this omission was material because it evidenced the Government’s

failure, or inability, to corroborate its position that Mr. Holland was selling drugs to confidential

informants. Id. However, this omission simply cannot defeat probable cause because, despite the

omission, the affidavit describes with particularity the process by which investigators determined

32 that the Defendant sold drugs to confidential informants. See Affidavit for Search Warrant, ¶8,

Jan 1, 2013. The Affidavit states in relevant part:

Between July 2011, and November 2011 , CW-1 arranged and conducted four narcotics-related transactions with HOLLAND during which HOLLAND sold amounts totaling over 300 grams of cocaine to CW-1. Each quantity of narcotics purchased from HOLLAND in the above-mentioned drug transaction was submitted to the DEA's Mid-Atlantic Laboratory and found to contain cocaine hydrochloride. CW-1 was equipped with an audio/video recording device for each transaction. Through surveillance and the down loaded recordings obtained from the audio/video recording device law enforcement was able to positively identify the individual that CW-1 had met with as HOLLAND. Prior to each transaction, CW-1 called HOLLAND using a telephone number previously supplied by HOLLAND in order to arrange a time and location to meet. Before and after conducting each of the controlled purchases of cocaine, law enforcement searched CW-1 and the undercover vehicle for contraband and money with negative results. Prior to each transaction, CW-1 was also provided an amount of pre-recorded law enforcement funds in order to purchase a quantity of cocaine from HOLLAND. After each of the controlled cocaine purchases by CW-1 from HOLLAND (which were monitored by law enforcement agents), CW-1 turned over a quantity of narcotics to law enforcement agents which field tested positive for the presence of cocaine.

Id.

Moreover, as already analyzed above, the Government presented several other facts,

including the affiant’s experience in narcotics trafficking, to support probable cause to search the

target property. Following controlled purchases, Defendant’s car was parked in the target

property’s garage and the lease on the property was registered in his name. Id. at ¶¶12,13.

Moreover, a reasonable judge reviewing the application at issue would assume that, if the

affidavit did not state that the defendant had been stopped while in possession of either drugs or

money, such an event did not occur. After all, had such an event occurred, any reasonable agent

would have included it as contributing to probable cause, if not outright arrest. Accordingly,

omitting information that a reviewing judge would have assumed anyway could not be material

to the probable cause determination. Hence, the Court denies the Defendant’s motion to suppress

tangible evidence, and for a Franks hearing.

33 G. Motion for Discovery of Co-Defendants and Co-Conspirator Statements

Defendant moves for an order, pursuant to Fed. R. Crim. P. 801(d)(2)(E), mandating that

the Government disclose in advance of trial any co-defendant or co-conspirator statements that

the Government plans to admit against him. Def.’s Mot. for Discovery of Co-Defendant and Co-

Conspirator Statements, Feb. 5, 2014, ECF No. 22. However, this Circuit has made clear that

“the government is not required to provide pre-trial discovery of co-defendant and co-conspirator

statements.” Govt.’s Omnibus Brief in Opp., 29, March, 7, 2014, ECF No. 29. Indeed, the D.C.

Circuit has “decline[d] to extend the defendant’s right to discovery beyond that required by

statute or the Constitution,” and has found that neither the Jencks Act nor the Federal Rules of

Evidence mandate such disclosures. United States v. Tarantino, 846 F.2d 1384, 1418 (D.C. Cir.

1988) (per curiam). As a result, “courts in this jurisdiction have no authority to order the pre-trial

discovery of co-conspirator [or co-defendant] statements, regardless of whether [such

individuals] will testify at trial.” United States v. Glover, 583 F. Supp. 2d 5, 11 (D.D.C. 2008);

see also United States v. Edelin, 128 F. Supp. 2d 23, 33 (D.D.C. 2001) (“Criminal defendants are

only entitled to statements of non-testifying witnesses or co-conspirators if those statements

qualify as Brady material.”). Accordingly, the Court denies Defendant’s motion for pre-trial

disclosure of co-conspirator and co-defendant statements.

IV. CONCLUSION

For the foregoing reasons, Government’s Motions to Admit Evidence Pursuant to Federal

Rules of Evidence 404(b) and 609(a)(1) are DENIED, and Defendant’s Motion for Suppression

of Electronic Information Obtained Pursuant to Wiretap, Defendant’s Motion for Disclosure of

Brady, Giglio, and Jencks Information, Defendant’s Motion to Disclose Identities of Each

Confidential Informant, Defendant’s Motion to Suppress Tangible Evidence, and Defendant’s

34 Motion for Discovery of Co-Defendant and Co-Conspirator Statements are DENIED. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: May 30, 2014 RUDOLPH CONTRERAS United States District Judge