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United States of America v. Alonzo Lamar Johnson

June 21, 2012

UNITED STATES OF AMERICA
v.
ALONZO LAMAR JOHNSON,
JEROME LAMONT KELLY, DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION AND ORDER

Defendants Alonzo Lamar Johnson ("Mr. Johnson") and Jerome Lamont Kelly ("Mr. Kelly") (collectively, "defendants") each filed a motion to suppress wiretap evidence (respectively, ECF Nos. 597 and 667), alleging that the wiretap evidence the government gathered against them should be suppressed because the interceptions were not properly authorized under the applicable law ‒ Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20. Specifically, defendants argued that the February 7, 2008 order authorizing wiretap interceptions (one of multiple interceptions authorized in connection with the instant matter) was illegal because the original signature of the authorizing judge ("Authorizing Judge") is missing, making the order authorizing the interception insufficient on its face. 18 U.S.C. § 2518(10)(a)(ii). On April 3, 2012, after considering the parties' submissions, the evidence adduced during the hearings held on the motions and the arguments of counsel, the court concluded for the reasons set forth on the record that the motions should be denied. This is the written opinion that the court advised it would issue to explain in more detail the reasons for its decision.

Background

Defendants were indicted for conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and fifty grams or more of crack cocaine in violation of 21 U.S.C. § 846. Evidence against defendants included telephone interceptions obtained under the authority of court orders.

The original wiretap application was presented to the Authorizing Judge on January 8, 2008, and docketed at Miscellaneous No. 08-07. Subsequently, the government presented nine additional wiretap applications or applications for extensions during the course of the investigation, each of which included an affidavit by FBI Special Agent Daniel Booker ("Booker")*fn1 or FBI Special Agent Michael Peetz.*fn2 These applications were docketed at Miscellaneous Numbers 08-07(a) through 08-07(i) inclusive.

Defendants each filed a motion to suppress the wiretap evidence. Mr. Johnson argued that "[n]ine telephone conversations, purporting to be those of Defendant Johnson, were allegedly intercepted between May 6, 2008 and May 21, 2008." ECF No. 597 at 4. These interceptions were made under the authority of orders entered on April 14, 2008 and May 14, 2008 by the Authorizing Judge at Miscellaneous Numbers 08-07(d) and 08-07(e). Mr. Johnson did not dispute the legality of the orders entered at Miscellaneous Numbers 08-07(d) and 08-07(e). Instead, Mr. Johnson argued that those orders and their accompanying applications were tainted by improprieties involved with the issuance of the authorization order at Miscellaneous Number 08-07(a), entered on February 7, 2008. Mr. Johnson, in essence, argued that the order entered in connection with the application docketed at Miscellaneous Number 08-07(a) was not valid because the order authorizing the interceptions bears a rubber-stamped signature of the Authorizing Judge, as opposed to the judge's actual inked or penned signature. As such, Mr. Johnson argued that order fails to comply with 18 U.S.C. § 2518(10)(a)(iii) and all the conversations intercepted between February 7, 2008 through the end of the investigation (September 20, 2008) should be suppressed.

Mr. Kelly made similar claims in his motion to suppress. ECF No. 667. Specifically, Mr. Kelly argued that the February 7, 2008 order authorizing the interceptions filed at Miscellaneous Number 08-07(a) failed to comply with the applicable statutory requirements. Mr. Kelly argued all interceptions obtained under its authority, as well as all subsequent interceptions are not valid.*fn3

At the conclusion of the December 21, 2011 hearing, the court ordered defendants to file briefs addressing whether defendants may challenge an affidavit for a wiretap that predates the application for the wiretaps on which they were intercepted, including such issues as the applicability of the fruit of the poisonous tree doctrine. Each defendant filed a brief (ECF No. 729, Mr. Kelly, and ECF No. 735, Mr. Johnson). On March 15, 2008, the government filed its response (ECF No. 758). Two additional hearings were held on this matter (March 15, 2012 and April 3, 2012). At the conclusion of the hearing on April 3, 2012, the court denied the motions and advised it would issue an opinion to further explain the court's reasons.

Standard of Review

(a) Standing

With respect to standing the Court of Appeals for the District of Columbia Circuit in United States v. Williams, 580 F.2d 578 (D.C. Cir.), cert. denied by Lincoln v. United States, 439 U.S. 832 (1978), noted:

Before an accused may be heard to complain that prosecution evidence should be suppressed because it was come by illegitimately, he must first make out his standing, which generally entails a demonstration that his own interests were affected by the challenged search or seizure. With particular regard to electronic eavesdropping, the accused must show that it was directed at him, that the Government intercepted his conversations or that the wiretapped communications occurred at least partly on his premises. Unless he can establish one of these events, it is legally irrelevant that the surveillance was unlawful. And this rule remains true even if acquisition of the questioned evidence was not the direct result of unlawful conduct but instead was the fruit of the proverbial poisonous tree.[*fn4 ] Thus, it was incumbent upon each appellant seeking to contend that the earlier unlawful wiretaps tainted the later ones at Seventh Street and Landover and the evidence therefrom to show that the prior misconduct made possible an interception of his conversations or a breach of the privacy of his premises.

Id. at 583 (footnote omitted) (emphasis in underline added).

In Williams, the Court of Appeals for the District of Columbia observed:

It is clear, however, that to facilitate an accused's effort to demonstrate that evidence employable against him is contaminated by illegal surveillance previously conducted, the Government, upon request, must "affirm or deny the occurrence of the alleged unlawful act." And where, as here, it is unquestioned that there has been electronic eavesdropping and that it was unlawful, the pertinent response is one indicating whether the accused himself was victimized thereby. If the Government answers in the affirmative, the accused is entitled to examine the records incorporating the contents of any monitored conversation that he has standing to attack.

Id. at 583-84 (footnotes omitted).

(b) Validity of Wiretap Order

With respect to determining the validity of a wiretap order, the court first must determine whether the wiretap order is facially defective and if so, second, must determine whether the omissions which made the order facially defective are technical defects not ...


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