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United States v. Chappell

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

August 14, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
D-2 DEMETRIUS TYRONE CHAPPEL D-5 MALCOLM DWIGHT OBRYAN Defendants.

          ORDER DENYING MOTION TO SUPPRESS EVIDENCE AND MOTION TO DISCLOSE EVIDENTIARY INFORMATION

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE

         On October 24, 2018, Defendants Demetrius Chappell and Malcolm Obryan were indicted for conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. §841(a)(1), which reads, in relevant part, that “it shall be unlawful for any person knowingly or intentionally to … distribute … or possess with intent to … distribute … a controlled substance, ” and 21 U.S.C. § 846, which states, “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” The conspiracy involved 500 grams or more of a substance that contained cocaine, a Schedule II controlled substance.

         In counts three, four, and seven of the indictment, Obryan (three and seven) and Chappell (four) were indicted for the use of a communication facility, i.e. a telephone, in the commission of a felony under the Controlled Substances Act, in violation of 21 U.S.C. § 843(b), which provides that it is “unlawful for any person knowingly or intentionally to use any communication facility in committing … a felony under [the Controlled Substances Act].”

         On July 3, 2019, Chappell filed a motion to suppress and a motion for disclosure of evidentiary information. ECF Nos. 151, 152. On July 8, 2019, Obryan filed a notice of joinder in Chappell's motions. ECF Nos. 153, 154. Defendants first request that this Court suppress the electronic surveillance gathered by the Government. Defendants move to suppress intercepted communications under 18 U.S.C. § 2518(10)(a), which states, “Any aggrieved person … 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 (ii) the order of authorization or approval under which it was intercepted is insufficient on its face.”[1]

         Defendants allege that the original order entered on July 19, 2018, as well as subsequent orders granted on August 3, 2018, September 5, 2018, September 24, 2018, October 10, 2018, and October 23, 2018, violate 18 U.S.C. § 2518(1)(c) in that they failed to adequately demonstrate “necessity” by the Government to use a wiretap as an investigative technique.

         Defendants also request the disclosure of evidentiary information relating to their necessity claim in order to substantiate their motion to suppress evidence and claims that this “deliberate or reckless failure to include” the evidentiary information “may give rise to a motion for a hearing pursuant to Franks v. Deleware [sic].” ECF No. 152 at PageID.477. More specifically, Defendants claim that the FBI, inter alia, had additional information and facts pertaining to the investigation that were consciously not included in the original or subsequent affidavits in order to make the wiretap seem more necessary, thereby affecting the Court's judgment in granting the warrant.

         The Government's response to Defendants' motion provides “[a]ll of the Title III applications, affidavits and orders can be provided to the court upon request.” ECF No. 162 at PageID.527. The Government made a similar representation during the motions hearing on July 18, 2019. In order to assist the Court in resolving Defendants' motions, the Government was directed to submit to the Court for in camera review the Title III applications, affidavits, and orders that are at issue in Defendants' motions, ECF Nos. 151 and 152, by July 24, 2019.

         I.

         Defendants argue that [1] the body of intercepted conversation acquired pursuant to the electronic surveillance orders granted on July 19, 2018, August 23, 2018, September 5, 2018, September 24, 2018, October 10, 2018, and October 23, 2019 should be suppressed for failure to state adequate necessity in the affidavits submitted to the Court; and [2] that the Court should compel the Government to provide Defendant with oral and written reports, statements of cooperating witnesses, confidential sources, consensually recorded conversations, and drug purchases, inter alia. Defendants further request that the Court grant leave to file any appropriate Franks motion after “all case discovery” is provided.

         Defendants first argue that the original affidavit presented to the Court requesting a warrant for electronic surveillance did not establish necessity as required under 18 U.S.C. § 2518(1)(c). ECF No. 151 at PageID.464. Defendants allege that the affidavits presented for subsequent extensions also failed to meet the required standards under Title III. Id. at PageID.465. Defendants claim that Obryan's crimes were already “fully exposed” and that the Government was already “well aware of Obryan's typical method of operation.” Id. at PageID.486. Defendants also cast doubt on the Government's assertion that informant CHS-2 is unwilling to testify, seemingly implying that the Government misrepresented to the Court the extent to which electronic surveillance was necessary. Id. at PageID.469. Finally, Defendants assert that the affidavits “simply list[] some common or traditional technique[sic] providing reasons why they would not be successful and ignoring how much evidence has already been gathered on the target and others.” Id. at PageID.470.

         Defendants also argue that the Court should compel the Government to disclose oral and written reports, statements of cooperating witnesses, confidential sources, consensually recorded conversations, and drug purchases, inter alia. ECF No. 152 at PageID.478. Defendants “suggest that the omission … of information [by the Government] is particularly insidious because of its difficulty to uncover.” Id. at PageID.481. Defendants further request that the Court grant leave to file any appropriate Franks motion after “all case discovery” is provided. Id. at PageID.478.

         In their responses submitted on July 15, 2019, and hearing on the motions on July 18, 2019, the Government rebutted both arguments. In its response to the motion to suppress wiretap evidence, the Government outlined various investigative techniques that had been considered and used, together with an explanation of their limitations. ECF No. 162 at PageID.532-543. These included search warrants for text message content (lacked context), GPS location on target phones and vehicles (unreliable and ineffective), surveillance (did not yield substantial results), undercover officers (highly dangerous), and pen registers, trap and trace devices (limited information acquired). Id. Further, trash searches were not carried out because the targets lived in apartment complexes and law enforcement did not attempt to interview or subpoena suspects or associates because they thought that it was unlikely they would succeed in gaining relevant information. Id. at PageID.540-541. The Government also explained the limited nature of the information they were able to acquire through confidential human sources because of the close relationships between members of the conspiracy. Id. at PageID.538.

         During the motion hearing, the Government clarified, “we weren't able to determine who, in fact, was involved in this conspiracy. It wasn't until we obtained the wiretap authorizations that we then were able to determine the scope of the conspiracy and those who were involved.” ECF No. 173, page 6, lines 5-9. The Government further explained that the necessity portion did not deviate between the first and subsequent affidavits because the “problem[s] before [they] got [their] first wiretap … remained a problem through the last wiretap.” Id. at page 7, lines 24-25.

         With regard to the motion for disclosure of evidence, the Government noted that “defendants have offered no federal rule, federal statute, or case law to support their request … for information.” ECF No. 163 at pageID.547. The Government then asserted that the only oral or written report, statement of cooperating witness, consensually recorded conversations, and drug purchases that were not ...


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