The opinion of the court was delivered by: Chief Judge Kane
In a superseding indictment filed December 8, 2005, Defendants in the above-captioned case were charged with various crimes involving the interstate transportation of adults and minors for prostitution and with money laundering. After consolidation of Defendants' pre-trial schedules, and following several continuances, the Court has scheduled jury selection and trial to begin on October 1, 2007.
Now pending before the Court are motions filed by Defendants Franklin Robinson and Derick Price to suppress evidence obtained from wiretaps on cellular telephones used by Defendants Robinson and Derek Maes that had been authorized by Judge Vanaskie, who was at that time the Chief Judge of the Middle District of Pennsylvania.*fn1 (Doc. Nos. 432, 454.) Robinson and Price have advanced an assortment of arguments in support of their motions, including the following: (1) that the affidavits offered in support of the applications for the wiretaps and extensions thereof failed to satisfy the statutory requirement of "necessity" set forth in 18 U.S.C. § 2518(3)(c); (2) that the Government failed to minimize the intercepted calls as required by 18 U.S.C. § 2518(5); (3) that the results of the wiretaps were not sealed immediately upon expiration of the extension orders authorizing the wiretaps as required by 18 U.S.C. § 2518(8)(a); (4) that the Government deliberately and advertently failed to comply with the notice and inventory provisions of 18 U.S.C. § 2518(8)(d); and (5) that Agent Stossel's affidavits failed to provide probable cause to believe that particular communications regarding the alleged offenses would be obtained through electronic interception as required by 18 U.S.C. § 2518(3)(b).
Related to their motions to suppress, Robinson and Price have requested that the Court convene a hearing in accordance with Franks v. Delaware, 438 U.S. 154 (1978) ("Franks hearing"), to allow them to examine FBI Agent John Stossel regarding his alleged intentional or reckless omission of certain facts from his supporting affidavits. Defendants maintain that had these omissions been included in the original applications, the authorizing judge would have concluded that the wiretaps were not necessary either because the Government had sufficient evidence to obviate the need for electronic surveillance, or the Government had not yet pursued traditional investigatory techniques that might have yielded evidence without the need for a wiretap. In support of their requests that the Court convene a Franks hearing, Robinson and Price have submitted information they argue was omitted from the affidavits, and they contend that the inclusion of this allegedly material information would have vitiated Judge Vanaskie's finding of necessity. (Doc. Nos. 617, 618.)
On April 7, 2005, the Government filed an application for authorization pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522 ("Title III"), to intercept wire communications of Derek Maes, Franklin Robinson, and approximately 17 other individuals over a cellular telephone used by Maes (this wiretap shall hereafter be referred to as "Maes-I").*fn2 On that same date, Judge Vanaskie of this Court entered an order authorizing the interception of calls to and from the identified telephone. On April 25, 2005, the United States sought and obtained an order from Judge Vanaskie modifying the original April 7 order. The United States filed 10-day reports with the Court on April 25, 2005 (covering the period from April 12 through April 21, 2005), May 5, 2005 (covering April 22 through May 1, 2005), and May 13, 2005 (covering May 2 through May 11, 2005).
On May 16, 2005, the Government filed an application for extension of the authorization to continue interception over the same cellular phone and named additional persons whose calls were expected to be intercepted in addition to those named in the original application (hereafter "Maes-II"). The United States filed reports with the Court summarizing the results of the investigation on June 7, 2005 (covering May 16 through May 25, 2005), June 7, 2005 (covering May 26 through June 4, 2005), and on June 16, 2005 (covering June 5 through June 14, 2005). On June 14, 2005, the Title III intercept for this cellular phone was terminated. The tapes of the recorded conversations were sealed on June 16, 2005.
On July 20, 2005, the Government filed an application for authority pursuant to Title III to intercept wire communications of Franklin Robinson, Derek Maes, and approximately 30 other individuals over a cellular phone used by Robinson, as a continuation of the Maes wiretap (hereafter "Robinson-I").*fn3 Judge Vanaskie authorized the wiretap on the same date. As with the Maes wiretap, the United States filed 10-day reports with the Court summarizing the nature of the intercepted telephone calls. On April 1, 2005, the United States filed its first such report (covering July 21 through July 30, 2005). The second 10-day report was filed on August 10, 2005 (covering July 31 through August 9, 2005). On August 17, 2005, the Government filed an application for authority to continue to intercept wire communication over this cell phone. Judge Vanaskie approved this request, authorizing the Government to continue intercepting calls to and from Robinson's cellular phone for an additional 30 days ("Robinson-II"). Following this authorization, the Government filed a third 10-day report on August 22, 2005 (covering August 10 through August 19, 2005). On August 30, 2005, the Government filed another 10-day report (covering August 20 through August 29, 2005). A fifth 10-day report was filed on September 7, 2005 (covering August 30 through September 7, 2005). The Government represents that in this report, it advised the Court that no pertinent calls had been intercepted between August 22, 2005, and September 7, 2005. On September 19, 2005, the United States filed a final report to advise that since August 22, 2005, Robinson's telephone had been shut down for non-payment of its bill. On September 22, 2005, the Court issued an order sealing the tapes of the calls intercepted from the tap of Robinson's cell phone.
Defendants' first and primary argument in support of their motions to suppress the results of the Maes and Robinson wiretaps is that the Government failed to sustain its burden of demonstrating that electronic surveillance was necessary to the investigation into the criminal and conspiratorial activity alleged in the superseding indictment. Essentially, Robinson and Price both argue that at the time it sought the first wiretap in Maes-I, the Government had already developed substantial evidence amounting to probable cause that the Defendants had committed various crimes, and that because the Government was in possession of such evidence, there could have been no need to authorize wiretaps to develop further evidence. Additionally, Robinson and Price contend that the United States failed to demonstrate that other less intrusive investigatory techniques would have been inadequate, and argue that such techniques could have been employed and would therefore have obviated the Government's stated need for the wiretaps in this case. In support of their arguments regarding necessity, Robinson and Price have requested that the Court hold a Franks hearing so that they may question Agent Stossel regarding various alleged factual omissions from his affidavits that Robinson and Price contend would have caused a reasonable jurist to conclude that the Government could not meet its burden of demonstrating necessity.
Before issuing an order authorizing a Title III wiretap, it is required that "the judge determine on the basis of the facts submitted by the applicant that . . . normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or be too dangerous." 18 U.S.C. § 2518(3)(c). Title III's requirement that the Government demonstrate necessity is intended to ensure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). The Third Circuit has emphasized that Title III's necessity requirement does not mandate that the Government exhaust all other investigative procedures before resorting to electronic surveillance. United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997). Instead, it is sufficient if there is evidence that "normal investigative techniques . . . reasonably appear to be unlikely to succeed if tried." Id. (quoting 18 U.S.C. § 2518(3)(c)). To make such a showing, "[t]he government need only lay a 'factual predicate' sufficient to inform the [authorizing] judge why other methods of investigation are not sufficient." United States v. McGlory, 968 F.2d 309, 345 (3d Cir. 1992) (quoting United States v. Armocida, 515 F.2d 29, 38 (3d Cir. 1975)). In determining whether this requirement has been satisfied, a court "may properly take into account affirmations which are founded in part upon the experience of specially trained agents." Williams, 124 F.3d at 418 (quoting United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989). In this regard, "[t]he government's showing is to be 'tested in a practical and commonsense fashion.'" McGlory, 968 F.2d at 345 (quoting United States v. Vento, 533 F.2d 838, 849 (3d Cir. 1976)).
Defendants argue that at the time Agent Stossel and the Government applied for the Maes-I wiretap, the Government already had an abundance of evidence relevant to the investigation and regarding the individual subjects of the investigation. Robinson notes that the Agent Stossel had advised the issuing judge that the investigation had been ongoing for more than one year and had allowed investigators to identify the alleged crimes and the alleged perpetrators. Price asserts that because the "intensive investigation into the alleged prostitution- related conspiracy . . . had identified virtually all of the indicted defendants[.] . . the Government had a plethora of information already at its disposal." (Doc. No. 461, at 7.) Price additionally points to the fact that the Government had received what he describes as "abundant information" regarding nearly all aspects of the investigation using traditional investigative tools, including witness cooperation and interviews, surveillance, grand jury testimony, and pen registers. (Id.)
The Government concedes that it had undertaken a broad investigation into a multi-state conspiracy, and that its traditional investigative techniques had yielded a certain degree of information regarding the participants and their alleged criminal activity. However, although Agent Stossel acknowledged that the initial investigation had been met "with some degree of success," (Maes-I at 64), he also emphasized that the chief goal of the investigation was the identification of all pimps and their prostitutes (in particular, the chief prostitutes that assist pimps in running a prostitution enterprise) and that this goal could only be achieved through the interception of wire communications. (Id. at 64-65.) As support for this assertion, Agent Stossel provided an affidavit in which he set forth detailed information regarding the secretive nature that attends the illicit business of interstate prostitution and attested that utilizing grand juries, informants, physical surveillance, review of telephone toll records, and the use of pen registers and trap-and-trace devices had thus far proven inadequate to achieve the investigation's objective. (Id. at 65.) Agent Stossel attested that investigators working the case had considered and rejected numerous traditional investigative methods as inadequate or impractical given the circumstances, including the use of search warrants at the targets' residences, the arrest and cooperation of principal suspects, and the use of confidential informants or undercover agents. (Id.)
Notably, Agent Stossel also detailed in his affidavit much of the information obtained through confidential informants, including current or former prostitutes, as well as why such information was of limited use, primarily owing to the compartmentalized and hierarchical nature of the alleged conspiracy: these informants had little or no ability to penetrate the criminal conspiracies being investigated, and they had relatively limited access to the primary targets of the investigation. (Id. at 66.) Given the particular nature of the crimes being investigated, Agent Stossel also outlined special legal, safety, and ethical concerns that precluded the use of prostitutes or other undercover personnel to commit crimes in order to infiltrate the criminal networks under investigation. (Id. at 66-68.)
With respect to traditional investigatory techniques that were deemed inadequate or too dangerous, Agent Stossel provided detail regarding the limited utility of physical surveillance, particularly given considerations relevant to investigation into pimps and prostitutes. (Id. at 68-70.) Agent Stossel advised Judge Vanaskie that the use of pen registers and trap-and-trace devices would not be useful, and that search warrants would be of little assistance because of the typically mobile manner in which pimps operated. (Id. at 71-72.) In addition to providing additional information as to why using cooperating principals was unlikely to be useful, (id. at 73-74), Agent Stossel explained the particular problems presented by grand jury investigations in cases of this nature, (id. at 74-77), and the especially limited utility of traditional techniques such as garbage searches (id. at 77). Agent Stossel included similar analysis and explanation in each of his three other affidavits offered in support of Maes-II, Robinson-I, and Robinson-II.
Robinson and Price offer various replies to the Government's position. First, Robinson and Price reiterate their arguments that, in their assessment, the investigation had been so spectacularly successful in uncovering evidence that there was simply no need for the wiretaps for which the Government applied. Dismissive of the fact that the Government had made explicit that one of its primary objectives in seeking to utilize electronic surveillance was the discovery of evidence and information regarding the conspiracy and its scope, Robinson posits that the Government must have known the nature of the activity even by the time of its first wiretap application and that the Government must have known much more about that activity at each successive application. Going further, Robinson brushes aside the Government's argument that it needed to know the full scope of the alleged conspiracy, reasoning that if such a justification met the necessity requirement, the rationale "would lead to continual wiretaps in almost every alleged conspiracy case." (Doc. No. 509, at 2.) Robinson also complains that the Government did not respond sufficiently to his contention that the Government's need for the wiretaps got weaker at each successive application, owing to the information derived from each previous wiretap. Finally, Robinson argues, without citation to authority, that Agent Stossel's statement that a wiretap was the only technique that would assist the Government in securing "evidence necessary to prove beyond a reasonable doubt" that the suspects were engaging in the identified offenses undermines the Government's stated need, because resorting to wiretapping to ensure conviction is not what Title III contemplates given that wiretapping should be utilized sparingly.
Testing the Government's showing in a "practical and common sense fashion," Vento, 533 F.2d at 849, the Court finds that Agent Stossel and the Government adequately demonstrated their need to utilize Title III wiretaps to investigate the interstate prostitution and money-laundering conspiracy that Agent Stossel had identified and which he had been investigating.
Agent Stossel, having considerable personal experience in similar investigations in his approximately 25 years of work with the FBI, attested with specificity and personal knowledge that normal investigative techniques were simply inadequate to identify fully all of the pimps that were involved in the alleged conspiracy, which allegedly spanned several states, or to accurately identify the scope of the conspiracy. Upon a review of each of the wiretap applications, the Court finds that the Government presented the ...