UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-4245
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN ROBINSON, a/k/a H,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, Chief District Judge. (3:16-cr-00050-GMG-RWT-1)
Submitted: April 23, 2019 Decided: April 30, 2019
Before GREGORY, Chief Judge, NIEMEYER and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth W. Ravenell, RAVENELL LAW, Baltimore, Maryland, for Appellant. William J. Powell, United States Attorney, Shawn M. Adkins, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Steven Robinson appeals the district court’s denials of his motions to recuse, to
suppress evidence obtained via wiretaps, and for a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), and his subsequent conviction for conspiracy to possess
with intent to distribute and to distribute heroin in violation of 21 U.S.C. §§ 841, 846
(2012).
Robinson sought to recuse the district judge, pursuant to 28 U.S.C. § 455, from
ruling on his motion to suppress the evidence obtained from three wiretap orders.
Robinson asserted that the judge could not be impartial because the district judge granted
the wiretap authorizations that were the subject of his motion to suppress. Section 455(a)
provides that “[a]ny justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” In considering recusal under subsection (a), “what matters is not the reality
of bias or prejudice but its appearance.” Liteky v. United States, 510 U.S. 540, 548
(1994). Disqualification also is required when the judge “has a personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(b)(1) (2012).
“We review a judge’s recusal decision for abuse of discretion.” Kolon Indus. Inc.
v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 167 (4th Cir. 2014). Generally, “courts
have only granted recusal motions in cases involving particularly egregious conduct.”
Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011). In order to disqualify a judge, the
2 “bias or prejudice must, as a general matter, stem from ‘a source outside the judicial
proceeding at hand.’” Id. at 572 (quoting Liteky, 510 U.S. at 545).
“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” And, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”
United States v. Lentz, 524 F.3d 501, 530 (4th Cir. 2008) (quoting Liteky, 510 U.S. at
555).
Our review of the record leads us to conclude that the district court did not abuse
its discretion in denying Robinson’s motion to recuse. Robinson provided no grounds for
recusal under § 455 and his sole claim of bias was based on the court’s earlier rulings.
Next, Robinson argues that the district court erred by denying his motion for a
Franks hearing, contending that the affidavit supporting the wiretap applications
contained omissions. “We assess de novo the legal determinations underlying a district
court’s suppression rulings, including the denial of a Franks hearing, and we review the
court’s factual findings relating to such rulings for clear error.” United States v. Allen,
631 F.3d 164, 171 (4th Cir. 2011).
In Franks the Supreme Court held that the Fourth Amendment requires a hearing
to be held at defendant’s request “where the defendant makes a substantial preliminary
showing that a false statement knowingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant affidavit . . . if the allegedly false
statement is necessary to the finding of probable cause . . . .” 438 U.S. at 155–56. “The
3 burden of making the necessary showing is . . . a heavy one to bear.” United States v.
Tate, 524 F.3d 449, 454 (4th Cir. 2008). This showing “must be more than conclusory”
and “must be accompanied by an offer of proof.” Franks, 438 U.S. at 171. Allegations
must be supported through affidavits or sworn witness statements, or an explanation of
why these cannot be provided. Id. Defendants may bring Franks challenges when an
affidavit contains a false statement or a material omission. United States v. Lull, 824
F.3d 109, 114 (4th Cir. 2016). “An omission is material if it is necessary to the neutral
and disinterested [court’s] finding of probable cause. Even if relevant, information is not
material unless its inclusion in the affidavit would defeat probable cause.” United States
v. Wharton, 840 F.3d 163, 168 (4th Cir. 2016) (citations, alterations and internal
quotation marks omitted).
Robinson alleges that the affiant omitted any discussion of three investigative
techniques and that use of these techniques – GPS cell phone tracking, a cell site
simulator, and pole cameras – would have negated the need for the wiretap. The affidavit
discussed pole cameras, noting these were not used because the locations for drug
purchases were not known in advance, and it sought authorization for GPS phone
tracking, noting that this technique did not reveal the nature and content of any
communication. Robinson provided no affidavits, sworn statements or other reliable
evidence to challenge the veracity of the affiant. Under these circumstances, we
conclude that Robinson failed to make the preliminary showing required for a Franks
hearing.
4 Finally, Robinson argues that the court erred in denying his motion to suppress the
evidence obtained by the wiretaps. He claims that the affidavit supporting the wiretap
applications failed to show the required necessity and that the affiant improperly omitted
the discussion of certain techniques, which, Robinson asserts would have proved the
wiretaps unnecessary.
“We review for clear error the factual findings underlying a district court’s ruling
on a motion to suppress, and we review the court’s legal conclusions de novo.” United
States v.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-4245
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN ROBINSON, a/k/a H,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, Chief District Judge. (3:16-cr-00050-GMG-RWT-1)
Submitted: April 23, 2019 Decided: April 30, 2019
Before GREGORY, Chief Judge, NIEMEYER and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth W. Ravenell, RAVENELL LAW, Baltimore, Maryland, for Appellant. William J. Powell, United States Attorney, Shawn M. Adkins, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Steven Robinson appeals the district court’s denials of his motions to recuse, to
suppress evidence obtained via wiretaps, and for a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), and his subsequent conviction for conspiracy to possess
with intent to distribute and to distribute heroin in violation of 21 U.S.C. §§ 841, 846
(2012).
Robinson sought to recuse the district judge, pursuant to 28 U.S.C. § 455, from
ruling on his motion to suppress the evidence obtained from three wiretap orders.
Robinson asserted that the judge could not be impartial because the district judge granted
the wiretap authorizations that were the subject of his motion to suppress. Section 455(a)
provides that “[a]ny justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” In considering recusal under subsection (a), “what matters is not the reality
of bias or prejudice but its appearance.” Liteky v. United States, 510 U.S. 540, 548
(1994). Disqualification also is required when the judge “has a personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(b)(1) (2012).
“We review a judge’s recusal decision for abuse of discretion.” Kolon Indus. Inc.
v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 167 (4th Cir. 2014). Generally, “courts
have only granted recusal motions in cases involving particularly egregious conduct.”
Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011). In order to disqualify a judge, the
2 “bias or prejudice must, as a general matter, stem from ‘a source outside the judicial
proceeding at hand.’” Id. at 572 (quoting Liteky, 510 U.S. at 545).
“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” And, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”
United States v. Lentz, 524 F.3d 501, 530 (4th Cir. 2008) (quoting Liteky, 510 U.S. at
555).
Our review of the record leads us to conclude that the district court did not abuse
its discretion in denying Robinson’s motion to recuse. Robinson provided no grounds for
recusal under § 455 and his sole claim of bias was based on the court’s earlier rulings.
Next, Robinson argues that the district court erred by denying his motion for a
Franks hearing, contending that the affidavit supporting the wiretap applications
contained omissions. “We assess de novo the legal determinations underlying a district
court’s suppression rulings, including the denial of a Franks hearing, and we review the
court’s factual findings relating to such rulings for clear error.” United States v. Allen,
631 F.3d 164, 171 (4th Cir. 2011).
In Franks the Supreme Court held that the Fourth Amendment requires a hearing
to be held at defendant’s request “where the defendant makes a substantial preliminary
showing that a false statement knowingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant affidavit . . . if the allegedly false
statement is necessary to the finding of probable cause . . . .” 438 U.S. at 155–56. “The
3 burden of making the necessary showing is . . . a heavy one to bear.” United States v.
Tate, 524 F.3d 449, 454 (4th Cir. 2008). This showing “must be more than conclusory”
and “must be accompanied by an offer of proof.” Franks, 438 U.S. at 171. Allegations
must be supported through affidavits or sworn witness statements, or an explanation of
why these cannot be provided. Id. Defendants may bring Franks challenges when an
affidavit contains a false statement or a material omission. United States v. Lull, 824
F.3d 109, 114 (4th Cir. 2016). “An omission is material if it is necessary to the neutral
and disinterested [court’s] finding of probable cause. Even if relevant, information is not
material unless its inclusion in the affidavit would defeat probable cause.” United States
v. Wharton, 840 F.3d 163, 168 (4th Cir. 2016) (citations, alterations and internal
quotation marks omitted).
Robinson alleges that the affiant omitted any discussion of three investigative
techniques and that use of these techniques – GPS cell phone tracking, a cell site
simulator, and pole cameras – would have negated the need for the wiretap. The affidavit
discussed pole cameras, noting these were not used because the locations for drug
purchases were not known in advance, and it sought authorization for GPS phone
tracking, noting that this technique did not reveal the nature and content of any
communication. Robinson provided no affidavits, sworn statements or other reliable
evidence to challenge the veracity of the affiant. Under these circumstances, we
conclude that Robinson failed to make the preliminary showing required for a Franks
hearing.
4 Finally, Robinson argues that the court erred in denying his motion to suppress the
evidence obtained by the wiretaps. He claims that the affidavit supporting the wiretap
applications failed to show the required necessity and that the affiant improperly omitted
the discussion of certain techniques, which, Robinson asserts would have proved the
wiretaps unnecessary.
“We review for clear error the factual findings underlying a district court’s ruling
on a motion to suppress, and we review the court’s legal conclusions de novo.” United
States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). Determinations of necessity for a
wiretap are reviewed for abuse of discretion. Id.
“To obtain authorization for a wiretap, . . . the government [must] submit an
application containing ‘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.’” United States v. Galloway, 749 F.3d
238, 242 (4th Cir. 2014) (quoting 18 U.S.C. § 2518(1)(c) (2012)). A district court may
authorize a wiretap only if it determines 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.’” United States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994) (quoting 18
U.S.C. § 2518(3)(c) (2012)). The exhaustion requirement is “designed to ensure that the
relatively intrusive device of wiretapping is neither ‘routinely employed as the initial step
in criminal investigation,’ nor ‘resorted to in situations where traditional investigation
techniques would suffice to expose the crime.’” Id. (quoting United States v. Giordano,
416 U.S. 505, 515, and United States v. Khan, 415 U.S. 143, 153 n.12 (1974)).
5 The Government’s burden in this regard “is not great, and the adequacy of such a
showing is to be tested in a practical and commonsense fashion . . . that does not hamper
unduly the investigative powers of law enforcement agents.” Id. (internal quotation
marks omitted). To show necessity, “the Government need only present specific factual
information sufficient to establish that it has encountered difficulties in penetrating the
criminal enterprise or in gathering evidence such that wiretapping becomes reasonable.”
Wilson, 484 F.3d at 281 (brackets and internal quotation marks omitted).
We conclude that the district court correctly found that the warrant affidavit
satisfied the exhaustion requirement and that the Government met its burden of
establishing that it encountered difficulties in fully investigating the conspiracy such that
the resort to wiretapping was reasonable. The affidavit noted that numerous investigative
techniques were attempted but failed to reveal the full scope of Robinson’s organization,
and provided particularized explanations of why other techniques were unlikely to
achieve all the goals of the investigation. These explanations were sufficient to establish
necessity for the wiretaps.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED