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United States v. Zigmond

United States District Court, E.D. Michigan, Southern Division

July 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BORIS ZIGMOND, et al., Defendants.

          ORDER DENYING DEFENDANT ZIGMOND'S MOTION TO DISMISS THE INDICTMENT, OR IN THE ALTERNATIVE, SUPPRESS WIRETAP COMMUNICATIONS (DOC. 202)

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         Defendant Boris Zigmond is charged with conspiracy to distribute and possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 846, and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). This matter is presently before the Court on Zigmond's Motion to Dismiss the Indictment, or in the alternative, Suppress the Wiretap Communications. (Doc. 202). Oral argument was held on July 13, 2017. For the reasons stated below, Zigmond's motion is DENIED.

         I. Background

         On November 5, 2014, the government filed an application, along with a supporting affidavit, to authorize the interception of communications between Rodney Knight and numerous individuals, including Zigmond, regarding an investigation of a target telephone (TTI) allegedly belonging to Knight. District Judge Robert H. Cleland issued an authorization order on the same date. On February 25, 2015 the Government applied to intercept communication of a second target telephone (TTII) purportedly belonging to Zigmond. District Judge Mark A. Goldsmith issued an authorization order on the same date. Both applications included supporting affidavits. The affidavits and authorization orders each discussed minimization procedures. Zigmond challenges sufficiency and scope of these documents.

         II. Legal Standard

         A. The Fourth Amendment

         The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, ” and states that “no warrants shall issue, but upon probable cause, supported by oath or affirmation. . . .” U.S. Const. amend. IV. Officers, therefore, “must obtain a valid warrant and conduct the search in a reasonable manner.” Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco & Firearms, 452 F.3d 433, 445 (6th Cir. 2006). A search is unreasonable where it is “out of proportion to the end sought.” United States v. Costner, 153 F.2d 23, 26 (6th Cir. 1946). “There is no formula for the determination of reasonable. Each case is to be decided on its own facts and circumstances.” Id. (internal quotations and citations omitted). The Court shall look at “the totality of the circumstances, ” Ohio v. Robinette, 519 U.S. 33, 39 (1996), and consider “whether what was done and found bears a reasonable relation to the authority then possessed and exercised or transcends it to become oppression.” Costner, 153 F.2d at 26.

         B. The Sixth Amendment

         The Sixth Amendment protects a defendant's right to effective assistance of counsel, which is “the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 654 (1984). The right to counsel “does not attach until the initiation of adversary judicial proceedings, ” whether “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” United States v. Gouveia, 467 U.S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).

         C. Title III of the Omnibus Crime Control and Safe Streets Act of 1968

         Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., (Title III), requires “each application for an order authorizing or approving the interception of a wire, oral, or electronic communication” to 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.” 28 U.S.C. § 2518(1)(c). See also 28 U.S.C. § 2518(3)(c) (requiring the judge approving a wiretap to determine that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or too be too dangerous.”). “Any aggrieved person in any trial, hearing, or proceeding in or before any court . . . may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that - (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.” 28 U.S.C. § 2518(10)(a).

         III. Analysis

         A. The Fourth Amendment

         Zigmond raises three challenges based upon the Fourth Amendment. Zigmond first asserts that the Government made material misstatements and omissions to the supervising court. A defendant may move to suppress evidence by challenging a warrant affidavit on the basis that it contains a false statement. Franks v. Delaware,438 U.S. 154, 155-56 (1978). Evidence shall be suppressed if the affidavit's remaining content is insufficient to establish probable cause. Id. at 156. A defendant may raise a similar ...


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