United States District Court, W.D. Pennsylvania
GUSTAVE DIAMOND, District Judge.
Presently before the court is defendant's Pretrial Motion for a Franks Hearing (Document No. 65) and the government's Response in opposition thereto (Document No. 69). For reasons explained below, defendant's Motion will be denied.
I. Procedural History
On March 22, 2013, a criminal complaint was filed against defendant Peter Woodley alleging that he violated various provisions of the Controlled Substances Act relating to the distribution of heroin. On April 16, 2013, a grand jury returned a two-count indictment against defendant charging him with conspiracy to distribute and possess with intent to distribute heroin from in and around December 2011, until in and around August 2012, in violation of 21 U.S.C. §846 (Count One), and possession with intent to distribute heroin on or about March 20, 2013, in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(B)(i).
Defendant previously filed the following pretrial motions: (1) Motion to Suppress; (2) Motion for Discovery; (3) Motion for Disclosure of Promises of Leniency and/or Existence of Plea Bargain Agreements; (4) Motion to Dismiss; and (5) Motion for Ordering of Government's Proof or for a Separate Hearing to Determine the Existence of a Conspiracy. Attorney Melvin Vatz, who was defendant's first CJA appointed counsel, filed these pretrial motions on his behalf. Defendant became dissatisfied with Attorney Vatz's representation, and requested the appointment of new counsel. Following a hearing, the court granted defendant's request and Attorney James Brink was appointed to represent him.
Attorney Brink represented defendant at the hearing on his Motion to Suppress. The court subsequently entered an opinion and order on December 30, 2013, denying defendant's suppression motion and granting in part and denying in part defendant's other pretrial motions. The court also scheduled trial to begin on January 27, 2014.
At a pretrial status conference held on January 23, 2014, defendant asserted that he was dissatisfied with Attorney Brink, who moved to withdraw as his counsel. The court granted Attorney Brink's motion, and rescheduled trial to begin on April 21, 2014. On January 29, 2014, Attorney James Robinson was appointed to represent defendant. On April 8, 2014, the court held a status conference with the parties, at which time Attorney Robinson indicated his intent to file a motion to continue the April 21, 2014, trial date. Defendant indicated his agreement with the request for a trial continuance, as well as his understanding that the resulting delay would be caused by his request and by his stated desire to file additional pretrial motions that he claims were not filed by his prior counsel.
On April 14, 2014, the court granted defendant's motion to continue the trial until August 25, 2014, to give Attorney Robinson ample time to prepare defendant's case. Despite the fact that the time for filing pretrial motions had long since passed, the court permitted defendant to file all pretrial motions he wished to file by April 21, 2104.
On April 21, 2014, defendant filed his Motion for a Franks Hearing. The government subsequently filed its Response in opposition to defendant's Motion. After review and consideration of defendant's Motion, the court finds that it is without merit and it will be denied.
At issue in defendant's Motion for a Franks Hearing is an Application and Affidavit dated March 11, 2013, for Disclosure of Location Data Relating to a Wireless Telephone, which was completed by Narcotics Sergeant Christopher Bouye of the New Castle City Police Department and Task Force Officer with the Drug Enforcement Administration ("DEA"), a copy of which is attached as an exhibit to defendant's Motion (hereinafter, "Sergeant Bouye's Affidavit"). Information contained in Sergeant Bouye's Affidavit was incorporated into the Affidavit in Support of Application for Search Warrant prepared by DEA Special Agent Melissa Cobb (hereinafter, "Special Agent Cobb's Affidavit"). Special Agent Cobb's Affidavit and Sergeant Bouye's Affidavit set forth the information that follows.
The DEA, along with local law enforcement agencies, conducted an investigation of a heroin trafficking organization involving an individual known as "P", who was later identified as defendant. In connection with the investigation, the DEA utilized a confidential source ("CS") who had been involved in the organization. The CS is federally charged with participating in the heroin distribution conspiracy, and is cooperating with the government with the hope of reducing his or her sentence.
On March 5, 2013, the CS received an e-mail message from a female who advised that "P" wanted to contact the CS. The female provided the CS with P's telephone number, and the CS spoke with "P" to arrange a meeting to discuss future heroin transactions. On March 6, 2013, the CS placed a consensually recorded phone call to "P" and arranged to meet him in Pittsburgh. On that day, while under constant surveillance by law enforcement agents, the CS met with "P" and discussed future heroin transactions. The CS told the agents that "P" is from New Jersey and travels to Pittsburgh by Greyhound bus to transport hundreds of bricks of heroin. According to the CS, he/she had purchased heroin from "P" in the past and "P's" mode of travel had been consistent.
During the controlled meeting that occurred, which was observed by agents the entire time, "P" advised the CS that he would return to Pittsburgh with several hundred bricks of heroin at the end of the next week. "P" agreed to provide the CS with approximately 100 bricks of heroin when he returned to Pittsburgh. The CS ...