Opinion
Criminal Action No. 04-295 Section: I/4.
April 29, 2005
ORDER AND REASONS
Before the Court are motions to suppress evidence obtained from wire, oral and electronic surveillance, filed on behalf defendants, Alan Green and Norman Bowley. The United States opposes the motions. For the following reasons, the motions are DENIED.
BACKGROUND
This case involves the government's investigation into alleged corruption with respect to bail bonds being set in the 24th Judicial District Court in Jefferson Parish, Louisiana. On August 27, 2001, Judge A.J. McNamara authorized Title III wiretap surveillance for nine telephones located at Bail Bonds Unlimited, Inc. ("BBU"), a bail bond company owned and operated by Louis Marcotte and his sister, Lori Marcotte. Subsequently, Judge McNamara authorized an extension of the initial wiretap and also authorized interception of communications on telephone lines registered to former judge Ronald Bodenheimer and Louis Marcotte. After submitting the initial two affidavits in support of the wiretap applications, the Federal Bureau of Investigation ("FBI") submitted eight more affidavits seeking renewal of the previous wiretaps and the interception of communications on additional telephone lines.On March 1, 2002, Judge McNamara granted the government's application at issue in this case. Pursuant to that order, Judge McNamara authorized the government to intercept oral communications occurring inside the chambers of defendant, Green, as well as wire communications taking place on Green's home telephone line. The application was the eleventh in a series of twelve wiretap applications submitted to Judge McNamara in connection with the federal government's investigation into alleged corruption in the 24th Judicial District Court. On April 11, 2002, Judge McNamara issued an order extending the March 1 order and authorizing the interception of visual non-verbal conduct and activities within Green's chamber by means of closed circuit television.
The basis for the government's investigation, and the application for Title III interceptions at issue in this case, revolves around allegations that the Marcottes, defendant Norman Bowley, the chief financial officer of BBU, Bodenheimer, and Green (among others) illegally colluded in a corrupt scheme which funneled bond premiums into the pockets of Marcotte in return for various bribes and other things of value provided to Bodenheimer, Green, and other individuals.
The defendants move to suppress evidence obtained through the use of wiretap and electronic surveillance obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510- 2520 ("Title III"). Both defendants argue that the evidence obtained from the Title III interceptions authorized pursuant to the March 1, 2002, Title III authorization must be suppressed because the FBI agent's affidavits submitted in connection with the applications for the Title III surveillance do not establish probable cause to believe the defendants were involved in unlawful activity and that the affidavits fail to show that interceptions of wire and oral communications were necessary. Additionally, Green argues that once the court issued the orders authorizing the requested interceptions, the government failed to minimize such interceptions in contravention of Title III.
LAW AND ANALYSIS
I. Probable Cause
Pursuant to Title III, 18 U.S.C. § 2518(3), a court may enter an ex parte order authorizing or approving interception of wire, oral, or electronic communications "if the judge determines on the basis of the facts submitted by the applicant that . . . there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense" enumerated in Title III. § 2518(3), (3)(a). Before such an order may issue, a court must find that "there is probable cause for belief that particular communications concerning that offense will be obtained through such interception," § 2518(3)(b), and that probable cause exists for belief that "the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection the commission of such offense." § 2518(3)(d). The probable cause required for a Title III wiretap is the same as that required by the Fourth Amendment for a search warrant. United States v. Milton, 153 F.3d 891, 894 (8th Cir. 1998) (citations omitted); see United States v. Collins, 972 F.2d 1385, 1409 (5th Cir. 1992) ("An order authorizing a wiretap, like an ordinary search warrant, must be supported by a finding of probable cause."). Evidence obtained in contravention of Title III may not be admitted in evidence. 18 U.S.C. § 2515.
Pursuant to the Fourth Amendment of the Constitution, the people are "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause. . . ." U.S. Const., Amend. IV. As stated by the United States Supreme Court:
The long-prevailing standard of probable cause protects "citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime," while giving "fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). On many occasions, we have reiterated that the probable-cause standard is a "`practical, nontechnical conception'" that deals with "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Brinegar, supra, at 175-176, 69 S.Ct. 1302); see, e.g., Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). "[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S., at 232, 103 S.Ct. 2317.
The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. See ibid.; Brinegar, 338 U.S., at 175, 69 S.Ct. 1302. We have stated, however, that "[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt," ibid. (internal quotation marks and citations omitted), and that the belief of guilt must be particularized with respect to the person to be searched or seized, Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).Maryland v. Pringle, 540 U.S. 366, 370-371, 124 S.Ct. 795, 799-800, 157 L. Ed.2d 769 (2003).
Probable cause means something more than mere suspicion. United States v. Minis, 666 F.2d 134, 138 (5th Cir. 1982) (citations omitted). Therefore, the "[m]ere affirmance of belief or suspicion" contained in a conclusory "bare bones" affidavit will not support a probable cause determination. Nathanson v. United States, 290 U.S. 41, 47, 54 S. Ct. 11, 13 (1933). A probable cause determination "cannot be a mere ratification of the bare conclusions of others." Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 (1983); United States v. Brown, 941 F.2d 1300, 1303 (5th Cir. 1991) ("Clearly, a `bare bones' affidavit is insufficient to establish probable cause."). However, the probable cause standard does not require evidence sufficient to support a conviction; "it is clear that `only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'" Gates, 462 U.S. at 235, 103 S.Ct. at 2330 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 590, 21 L. Ed.2d 637 (1969)); Brown, 941 F.2d at 1303; United States v. Sanchez, 689 F.2d 508, 512 (5th Cir. 1982) ("A showing of probable cause requires far less evidence than that sufficient to support a conviction.") (citation omitted). Therefore, probable cause may be shown when an affidavit avers adequate facts demonstrating a "probability or substantial chance of criminal activity, not an actual showing of such activity." Gates, 462 U.S. at 245 n. 13, 103 S. Ct. 2335 n. 13. It follows that probable cause may be shown by activity which, standing alone, does not itself amount to criminal activity. See id. ("By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause").
In United States v. Gonzales, the Fifth Circuit explained the operation of the probable cause standard in the context of a wiretap authorization as follows:
An order authorizing a wiretap, like an ordinary search warrant, must be supported by a finding of probable cause. If the judge uses common sense and bases [his] finding on the entire picture presented to [him], our review is limited. "When this is done [the] determination is conclusive in the absence of arbitrariness." U.S. v. Weinrich, 586 F.2d 481, 487 (5th Cir. 1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 243 (1979), and cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979). The task of the issuing judge is to make a common sense decision whether the affidavit shows a fair probability that evidence will be obtained, according to all the circumstances, including the veracity and basis of knowledge of anyone supplying hearsay information.866 F.2d 781, 786 (5th Cir. 1989); see also United States v. Martinez, 70 Fed. Appx. 214, 2003 WL 21659415, *1 (5th Cir. July 15, 2003) (unpublished) (citing Gonzales and reviewing the district court's probable cause determination in connection with issuing a wiretap order for arbitrariness); United States v. Edwards, 124 F. Supp.2d 387, 392 (M.D.La. 2000). Although a court reviewing an issuing judge's probable cause determination will undertake an independent review of the sufficiency of an affidavit, Minis, 666 F.2d at 138; Edwards, 124 F.Supp.2d at 393, "the duty of a reviewing court is simply to ensure that the [issuing judge] had a `substantial basis for . . . conclud[ing]' that probable cause existed." Gates, 462 U.S. at 213, 103 S. Ct. at 2317; Brown, 941 F.2d at 1302 (noting that an issuing judge's determination of probable cause "is entitled to great deference by reviewing courts" and the issuing judge "need only have a substantial basis for concluding that a search would uncover evidence of wrongdoing"); Gonzales, 866 F.2d at 786.
A. Bowley's Motion with respect to Probable Cause
Bowley argues that the affidavit does not establish probable cause because it is not based upon objective fact, but only upon the affiant's "belief." He contends that such a deficiency is compounded by the affiant drawing an illogical causal connection between two unrelated and innocent facts, namely that Judge Green routinely sets, reduces and splits bonds pursuant to Louisiana law, and that Judge Green and Bowley have a friendly professional relationship. In short, Bowley's argument rests on the premise that each fact outlined in the government's affidavit, standing alone, does not establish probable cause because none of the alleged activity is unlawful.
Bowley's argument is unpersuasive because it focuses only on two facts and ignores the totality of the facts and circumstances averred in the affidavit. To the extent that Bowley argues that Green's conduct in setting, reducing, or splitting bonds does not establish probable cause, the argument is unpersuasive. As an initial matter, innocent conduct, viewed in the context of the totality of the other facts and circumstances averred, may provide a basis for a finding of probable cause. Gates, 462 U.S. at 245 n. 13, 103 S. Ct. 2335 n. 13. The totality of the circumstances suggest that, even if Green's acts with respect to setting, reducing, and splitting bonds were lawful standing alone, there was a probability, i.e., a reasonable factual ground for belief, that Green had an unlawful reason for doing so and that Bowley used his close relationship with Green to improperly influence Green's conduct in that regard. Moreover, to the extent that Bowley argues that the affiants "beliefs" with respect to the connection between Green and Bowley were held as a result of unwarranted inferences drawn from the other facts alleged in the affidavit, defendants' disagreement with the government's inferences does not vitiate a finding of probable cause if such inferences are reasonable. Nor does it demonstrate that the government's "belief" of criminal wrongdoing was false. The conclusions and beliefs of the affiant which formed the basis of probable cause are drawn from detailed and specific facts which demonstrate a reasonable ground for belief that Bowley was engaged in unlawful activity. Cf. United States v. Labate, 2001 WL 533714, *16 (S.D.N.Y. May 18, 2001) ("[M]erely disagreeing about the fair interpretation of the intercepted communications, which were reproduced or summarized for independent review by the authorizing judge" does not establish that an FBI agent's statements were false or recklessly made). When viewed together and in a commonsense fashion, the facts set forth in the agent's affidavit sufficiently support the government's belief of criminal wrongdoing and also provide a substantial basis to support Judge McNamara's probable cause determination. Therefore, the evidence against Bowley cannot be suppressed for lack of probable cause.
B. Green's Motion with respect to Probable Cause
Green reiterates the same argument asserted by Bowley with respect to the alleged lack of probable cause based upon the lawfulness of Green setting, reducing, and/or splitting bonds pursuant to Louisiana law. For the reasons stated above, this argument is unavailing. Additionally, Green isolates five phone calls listed in the affidavit which he argues do not establish any criminal behavior. Green also argues that golf games with co-defendant Bowley, as well as the fact that BBU allegedly hosted a Christmas party for Green and his staff, do not establish probable cause to believe that Green was engaged in any unlawful activity.
Although the individual phone calls, golf games, and BBU hosting a party for Green and his staff, standing alone and viewed in isolation from one another, might not establish probable cause, the argument ignores the totality of the facts set forth in the affidavit. For example, the facts and circumstances contained in the affidavit allege that (1) BBU had a virtual monopoly on the bail bonding business in Jefferson Parish; (2) the Marcottes avoided putting bond matters before other judges because those judges might not have ruled favorably to BBU on bonding matters; (3) BBU employees engaged in intercepted discussions wherein they discussed a cash campaign contribution given to Green in excess of an amount allowed by law and the discussion demonstrated an awareness of the impropriety of doing so; (4) BBU provided parking spots at BBU to Green and his staff; (5) FBI surveillance documented both Green and BBU employees having meals together under circumstances which showed a probability that such meals were paid for by BBU; (6) numerous intercepted statements pursuant to previous wiretaps indicated that BBU preferred to have Green deal with bonding matters because he dealt with such matters in a way more favorable to BBU than other judges. Such matters included setting, reducing, or splitting bonds pertaining to Deonte Phillips, Cheryl Sibley, Barry Anderson, and Timothy Moorman; and (7) physical surveillance demonstrated that BBU had direct access to Green in his chambers.
The agent's supporting affidavit is eighty-six pages long and this Court does not purport to set forth every fact underlying its probable cause determination. However, the Court notes that the above-cited highlights, themselves, go far in establishing probable cause.
Taken together, each fact combines and begins to create a picture which demonstrates a reasonable ground for the agent's belief that Green was setting, reducing, and/or splitting bonds in exchange for gratuities as well as cash payments disguised as campaign contributions, which conduct could be found to constitute crimes enumerated in the affidavit. Importantly, Green's isolation of each fact stated in the affidavit ignores the backdrop against which all of the facts pertaining to Green must be assessed, i.e., the government's ongoing investigation with respect to the aggressive business practices of the Marcottes and BBU, the investigation with respect to BBU's alleged corruption of Bodenheimer, and the totality of the evidence gained in such investigations.
After independently reviewing the affidavit, the Court finds that the affidavit adequately establishes probable cause that Green was committing, or was about to commit, crimes set forth in the agent's affidavit. When viewed together and in a commonsense fashion, the facts set forth in the agent's March 1, 2002, affidavit sufficiently support the government's belief of criminal wrongdoing and there exists a substantial basis to support Judge McNamara's probable cause determination.
Green also argues that to the extent that the April 11, 2002, extension of the March 1, 2002, order authorizing Title III interception rests on the same information set forth in the March 1, 2002, order, it also fails for lack of probable cause. Additionally, Green isolates one conversation in the April 11, 2002, affidavit which he contends does not show that Green was involved in illegal activity. Because this Court concludes, after an independent review of the March 1, 2002, affidavit, that probable cause existed supporting the issuance of the Title III order authorizing interceptions in Green's chambers and on his home phone line, that same information, considering the totality of the circumstances in addition to the specific communication identified by Green in his motion, establishes probable cause with respect to the extension.
In a related argument, Green argues that Judge McNamara "rubber stamped" the government's application for the interception of oral and wire communications and the government's application for a court order authorizing visual non-verbal surveillance of Green's chambers. The argument is based on the fact that the surveillance affidavits and applications were submitted to Judge McNamara on the same dates and times as the orders authorizing such surveillance were issued. Green argues that because the supporting affidavits and applications were of considerable length, the timing of the issuance of the orders demonstrates that Judge McNamara did not have time to independently review the material and make the required findings of probable cause and necessity.
Green's argument is unpersuasive. The Assistant United States Attorney has submitted an affidavit in which he states that, in accordance with the standard practice in this district, draft copies of both the March and April, 2002, applications and affidavits were submitted to Judge McNamara at least one full day prior to the submission of the final application and affidavit. In light of the government's affidavit, this Court will not presume, based upon Green's unsupported speculation, that Judge McNamara did not independently review the wiretap applications and make a neutral and detached finding as to probable cause.
II. Necessity 18 U.S.C. § 2518(1)(c) requires that each application for a wiretap order contain "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." The Fifth Circuit has explained:
[T]he purpose of this section "is not to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted." [ United States v. Webster, 734 F.2d, 1048, 1055 (5th Cir. 1984)]. Rather, the section "is designed to inform the issuing judge of the difficulties involved in the use of conventional techniques and to insure that wiretapping is not resorted to in a situation in which traditional investigative techniques will suffice to expose crime." Id.
With these considerations in mind, we have held that "[i]t is enough if the affidavit explains the prospective or retrospective failure of several investigative techniques that reasonably suggest themselves." United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978).United States v. Collins, 972 F.2d 1385, 1412 (5th Cir. 1992). Section 2518(3)(c) requires that before a Title III order issues, the issuing judge find that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." The statutory "necessity" requirement "is intended to ensure that [f]ederal wiretap authorization procedures `were not to be routinely employed as the initial step in criminal investigation.'" United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978) (quoting United States v. Gtiordano, 416 U.S. 505, 515, 94 S. Ct. 1820, 1827, 40 L. Ed.2d 341 (1974)).
Normal investigative procedure includes, for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants. United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978) (citation omitted).
"The Government `need not prove exhaustion of every conceivable option before a wiretap order may issue.'" Bankston, 182 F.3d at 306 (quoting United States v. Guerra-Marrez, 928 F.2d 665, 671 (5th Cir. 1991)). The Fifth Circuit has noted that "courts are reluctant to impose their hindsight upon law enforcement agencies, and the proponent of the application need not establish that `every other imaginable mode of investigation would be unsuccessful.'" Guerra-Marez, 928 F.2d at 670 (quoting United States v. Diadone, 558 F.2d 775, 778 (5th cir. 1977)). Instead, courts in this Circuit "take a `common sense view' of the statement contained in the application to determine if the necessity requirement is satisfied." Guerra-Marrez, 928 F.2d at 670; Edwards, 124 F. Supp. 2d at 400.
A. Defendants' Arguments
Green first argues that the government improperly contradicted itself when it stated that the wiretap order was necessary. The agent averred that because Louis Marcotte, Bowley, and Green had possibly been alerted by Bodenheimer of phone surveillance with respect to Louis Marcotte, the government believed that the defendants would meet at Green's chambers to conduct illegal transactions. However, the agent also averred that she believed, based upon intercepted telephone calls subsequent to the time Bodenheimer was alerted to possible surveillance, that pertinent conversations would nonetheless continue to take place over wire communications. Green argues that the government's statements in this regard belied any need for a wiretap with respect to Green.
Second, Green argues that the government did not exhaust less intrusive investigatory techniques, including verifying bonds with the JPSO database, subpoenaing BBU and/or Green's bank and credit card records to verify that BBU was paying for meals and entertainment, offering immunity in exchange for testimony, engaging in undercover investigation, and interviewing witnesses.
Green's other contentions include the arguments that the necessity section of the affidavit appears to be cut and pasted from a previous affidavit. Green argues that although there may have been prior efforts at employing other investigatory techniques with respect to BBU in general as well as other judges, that does not establish that traditional investigative techniques were exhausted as to him. According to Green, the Title III wiretap was the initial step in an investigation into his actions.
With respect to Bowley's motion, Bowley first argues that the government failed to show that a Title III wiretap was necessary with respect to some of the enumerated crimes being investigated. Similar to Green's argument, Bowley argues, relying on the Ninth Circuit, that the affidavit does not demonstrate necessity independent of other previous affidavits. Bowley argues that a "cookie cutter" affidavit cannot establish its own independent showing of necessity. See United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988) (" Each wiretap application, standing alone, must satisfy the necessity requirement.").
The government does not respond to this argument specifically and the defendant does not cite any authority for the proposition that necessity, let alone probable cause, must be shown as to every crime being investigated.
In addition, Bowley makes a general attack on each paragraph of the necessity section of the agent's affidavit, arguing that it provides insufficient factual detail about why the traditional investigative techniques which were utilized in the government's investigation were insufficient. Bowley argues that the government's assertion that normal investigatory methods did not sufficiently reveal the scope of the alleged criminal activity proves that there was no criminal activity. Bowley argues that due to such an asserted lack of criminal activity, there could not be any need for a Title III surveillance application.
B. Analysis
The Court disagrees with Green's contention that the agent's statements with respect to the necessity for a wiretap are contradictory. The fact that pertinent conversations might continue to take place over the telephone does not, a fortiori, obviate the government's stated need for interception of oral communications inside Green's chambers or wire communications on his home phone. The affidavit sets forth in detail the investigatory techniques employed by the government and the reasons why other techniques appeared likely to fail. The affidavit also exhaustively explains why the traditional methods of investigation employed had met with limited success. Among other things, the agent stated that due to the close-knit relationships between the defendants and between the defendants and Marcotte, normal investigative tools, such as the use of confidential sources and/or cooperating witnesses and undercover operations, had not, after two years of investigation, yielded sufficient evidence with respect to the alleged conspiracy to sustain a prosecution. The agent stated that due to the close relationships of the participants and the nature of the alleged activity, i.e. public corruption, Bowley, Marcotte, and Green were unlikely to permit a third party to be privy to any transactions that were criminal in nature. As stated by the agent, the government's attempts to glean information from witnesses or place an undercover operative within BBU had met with only limited success with respect to the government's investigation of Bodenheimer and it was reasonable for the government to conclude that future efforts to obtain information by employing undercover techniques would prove fruitless.
The affidavit states that techniques such as conducting field interviews with witnesses and the use of grand jury subpoenas were employed in a limited fashion, but further use of such techniques could have compromised the investigation by alerting the defendants to the continuing investigation and compromising cooperating witnesses due to the defendants ties and contacts within the community. Additionally, the government obtained evidence that several subjects of the investigation appeared to be aware of the possibility that they were being monitored and, therefore, the alleged unlawful activity was further hidden from view by conducting meetings with respect to bail matters inside Green's chambers.
For similar reasons, the agent averred that techniques centered around recovering documentary evidence, e.g., search warrants, were likely to fail. Given the nature of the activity, it was unlikely that defendants would have kept a written record of an exchange of gratuities for handling bond matters in a way favorable to BBU. Additionally, the affidavit states that although physical surveillance of Green's chambers was employed and continued to be employed, such surveillance could not supply the contents of the meetings between Bowley, Green, and other BBU employees.
The Fifth Circuit has affirmed wiretap orders based upon similar affidavits. See e.g., United States v. Kelley, 140 F.3d 569, 605-06 (5th Cir. 1998) (reasoning that when a paid informant could only provide information on isolated transactions and when an informant's attempts to elicit information were unsuccessful due to the defendants' aroused suspicions, a wiretap order was appropriate); United States v. Krout, 66 F.3d 1420, 1425 (5th Cir. 1995) (affirming a wiretap order and explaining that the informants or undercover agents could not infiltrate the conspiracy at high enough levels); Collins, 972 F.2d at 1412 (noting that consensual monitoring was unlikely to be effective when informant would not be present when the "ultimate unlawful activity" occurred); Guerra-Marez, 928 F.2d at at 671 (noting that attempts to elicit information through an informant could endanger both the informant and the investigation when some members of a conspiracy were conscious of surveillance).
Additionally, contrary to Bowley's assertion, the affidavit sets forth an independent basis of necessity with respect to interceptions communications at Green's chambers and on his home phone line. Due to the possibility that Green and BBU were alerted to government surveillance by Bodenheimer, and based upon physical surveillance at Green's chambers, agents believed that illegal acts were occurring inside Green's chambers. Furthermore, intercepted conversations had revealed a close relationship between Bowley and Green in which Bowley contacted Green at his home. Moreover, as noted above, there was sufficient information gleaned from traditional investigatory techniques which established probable cause that Bowley and Green were engaging in criminal transactions involving the exchange of gratuities for favorable treatment in bonding matters. Accordingly, although the government's showing of necessity overlapped with its showings in prior applications, which is expected given the nature and scope of the investigation, the government's showing of necessity was based upon reasons specific to the application for interception of communications in Green's chambers and on his home phone and the defendants' alleged unlawful activity. In short, the Title III affidavit contains detailed facts which support a conclusion that the government's belief was reasonable in light of its prior and ongoing investigation into corruption involving BBU and the 24th Judicial District Court.
The affidavit sets forth detailed facts with respect to the use of normal investigative techniques to obtain evidence of the activities occurring within Green's chambers and the government's belief that such techniques would either prove fruitless or compromise the investigation.
After conducting an independent and de novo review of the affidavit, the Court determines that the affidavit more than adequately sets forth a basis upon which to conclude that normal investigative procedures had been tried, failed to produce sufficient evidence, and that normal investigative procedures that were not tried or not continued reasonably appeared to be unlikely to succeed if tried or continued. Accordingly, the Court concludes that the government has met the statutory requirement of necessity in order to obtain authorization to intercept communications pursuant to Title III.
III. Green's Motion to Suppress for Failure to Minimize Interceptions
Title III provides that every order authorizing interceptions of oral or wire communications "shall contain a provision that the authorization to intercept . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception" pursuant to Title III. 18 U.S.C. § 2518(5); United States v. Brown, 303 F.3d 582, 604 (5th Cir. 2002). Green argues that the call summaries submitted to Judge McNamara show that the government failed to minimize its interceptions. In response, the government first argues that total suppression of evidence is an improper remedy for failure to minimize interceptions. Second, the government argues that it has made a prima facie showing of reasonable minimization and that Green has not sustained his burden of showing improper surveillance. The Court pretermits the government's argument with respect to the appropriate remedy for failure to minimize interception and addresses the government's latter argument first.
Green argues that the government failed to minimize its interceptions based upon one statistic contained in the April 9, 2002, 10-day report which is one of 29 such reports submitted to Judge McNamara during the time surveillance was authorized. That report shows that, from March 27, 2002, until April 5, 2002, 366 completed calls were intercepted of which 8 calls were deemed pertinent. The report also shows that 7.1 percent of the 366 calls were minimized. Relying on the 7.1 percent statistic, Green argues that all of the evidence obtained from the Title III wiretap should be suppressed.
In response, the government has submitted numerous 10-day reports applicable to the period during which the FBI was authorized to surveil Green's chambers. The reports reflect overall minimization rates significantly higher than 7.1 percent. Additionally, the government has submitted an affidavit of a Special Agent of the FBI who is familiar with the government's efforts to employ two techniques in order to minimize the surveillance in Green's chambers. The agent avers that during the surveillance, the agents conducted "spot checks" by physically activating and de-activating the recording equipment. While the equipment was de-activated, a minimization was occurring although such minimizations are not reflected in the minimization statistics. In addition, the agent avers that the monitoring agents had the ability to and did use a minimization button on the equipment during active interception sessions which is reflected in the computer-compiled statistical analyses attached to the 10-day reports. Finally, the agent avers that the monitoring agents were instructed by the Assistant United States Attorney in charge of the case with respect to their obligation to minimize nonpertinent calls in accordance with the court's orders.
A. Burden of Production and Proof
The Fifth Circuit has not specifically addressed the relative burdens of the parties when a defendant raises a general challenge to the government's minimization efforts. Other circuits have held that, in such a case, the government bears the burden of making a prima facie showing of reasonable compliance with the minimization requirement. See United States v. Torres, 908 F.2d 1417, 1423 (9th Cir. 1990) (citing United States v. Rizzo, 491 F.2d 215, 217 n. 7 (2d Cir. 1974)). If the government makes such a showing, the burden is on the defendant to show that "more effective minimization could have taken place." United States v. Willis, 890 F.2d 1099, 1102 (10th Cir. 1989) (citing United States v. Armocida, 515 F.2d 29, 45 (3d Cir. 1975)).
The Fifth Circuit has recently set forth the relevant governing principles with respect to minimization of Title III interceptions:
The government's efforts to minimize interception of non-pertinent conversations "must be `objectively reasonable' in light of the circumstances confronting the interceptor." [ Bankston, 182 F.3d at 307]. This court has set forth a three-part test to determine whether the government's minimization efforts meet this standard: "(1) the nature and scope of the criminal enterprise under investigation; (2) the Government's reasonable inferences of the character of a conversation from the parties to it; and (3) the extent of judicial supervision." [ Id. (citing Hyde, 574 F.2d at 869) (internal quotation marks omitted)].
Although 18 U.S.C. § 2515 requires minimization, it does not "require government agents to avoid intercepting all nonrelevant conversations when conducting a wiretap investigation." [ Id. (internal citations omitted)]. On the contrary, the practical necessities of conducting a wiretap may, in some circumstances, inevitably lead to the interception of some conversations outside the scope of the wiretap order:
[T]he only feasible approach to minimization is the gradual development, during the execution of a particular wiretap order, of categories of calls which most likely will not produce information relevant to the investigation. . . . Until such categories become reasonably apparent, however, interception of all calls will be justified under the wiretap authorization.
[ Hyde, 574 F.2d at 870 (quoting United States v. Scott, 516 F.2d 751, 754-55 (D.C. Cir. 1975))].
Accordingly, the government may reasonably intercept more calls during the initial phase of an investigation, when the precise scope of and participants in the criminal scheme have not yet been identified. [ See United States v. Kahn, 415 U.S. 143, 94 S. Ct. 977, 39 L. Ed.2d 225 (1974) (approving an order authorizing interception of pertinent conversations between a named target and "others as yet unknown"); Hyde, 574 F.2d at 869-70 ("One of the objects of wiretapping is to ascertain the full extent of participation in criminal activity, and we need not limit retrospectively the pool of potential defendants.")]. This consideration is especially strong where the criminal enterprise under investigation is a large and sophisticated conspiracy, and the purpose of the intercept order is to learn the identities of conspirators and define the reach of the conspiracy. [ See Hyde, 574 F.2d at 869 ("Large and sophisticated conspiracies may justify more electronic surveillance than a single criminal act.")].Brown, 303 F.3d at 604-05. In analyzing the government's minimization efforts, courts have also considered the thoroughness of the government's efforts to minimize interceptions, including whether the agents are instructed to minimize calls and the particular techniques employed to minimize interceptions. See United States v. Cleveland, 964 F. Supp. 1073, 1093 (E.D.La. 1997) (outlining various factors courts consider in assessing whether minimization efforts are reasonable).
Several factors lead the Court to conclude that the government has more than made a prima facie showing that its minimization efforts were objectively reasonable. First, with respect to the nature and scope of the criminal enterprise under investigation, courts have recognized that "when the investigation is focusing on what is thought to be a widespread conspiracy more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise." Scott v. United States, 436 U.S. 128, 140, 98 S. Ct. 1717, 1725, 56 L. Ed.2d 168 (1978); see also United States v. Ozar, 50 F.3d 1440, 1447 (8th Cir. 1995); United States v. Earls, 42 F.3d 1321, 1325 (10th Cir. 1994). The government's investigation was complex as well as wide-ranging and it focused on many participants allegedly involved in a corrupt bail bonding system in the Jefferson Parish court. Although the government had a general idea as to how BBU operated and it had probable cause to believe that Green was illegally setting bonds in exchange for gratuities, the wiretap investigation into Green's activities in late March and early April, 2002, were at its early stages. As noted in the government's affidavit, the full nature and extent of the alleged unlawful activity and Green's participation in the alleged conspiracy had not yet been identified. The Fifth Circuit has recognized that "the government may reasonably intercept more calls during the initial phase of an investigation, when the precise scope of and participants in the criminal scheme have not yet been identified." Brown, 303 F.3d at 604; see also United States v. Sorapuru, 902 F. Supp. 1322, 1329 (D. Colo. 1995) ("[M]onitors may need to listen for longer periods of time in the early stages of . . . investigation in order to determine the identity of speakers and the significance of conversation."). The challenged call summary encompasses the time period from March 27, 2002 to April 5, 2002, which was only several weeks after Judge McNamara first authorized interceptions of oral communications within Green's chambers and wire communications over his home telephone line.
The Court notes that the second factor identified by the Fifth Circuit in Brown, i.e., the government's reasonable inferences of the character of a conversation from the parties to it, is not relevant to Green's generalized challenge to the government's alleged failure to minimize interceptions. In contrast to the situation presented in Brown, Green has not identified any particular interception which he contends was improperly intercepted based upon the identity of the participants to such interception.
Additionally, with respect to the nature of the investigation, the Supreme Court has stated:
The type of use to which the telephone is normally put may also have some bearing on the extent of minimization required. For example, if the agents are permitted to tap a public telephone because one individual is thought to be placing bets over the phone, substantial doubts as to minimization may arise if the agents listen to every call which goes out over that phone regardless of who places the call. On the other hand, if the phone is located in the residence of a person who is thought to be the head of a major drug ring, a contrary conclusion may be indicated.Scott, 436 U.S. at 140, 98 S.Ct. at 1725. In this case, the monitoring equipment at issue with respect to Green's motion to suppress included not only Green's home telephone, but auditory as well as non-verbal visual surveillance of Green's chambers. The Supreme Court's reasoning in Scott is instructive to both the wiretap on Green's home telephone and the electronic monitoring of Green's chambers. The wiretap was placed on Green's home telephone line based upon specific evidence tending to show that Bowley contacted Green at his home to discuss bonding matters. Similarly, the monitoring equipment in Green's chambers was set up in a way to limit the interceptions to Green, the primary target of the investigation, and associates of BBU. The monitored areas, like Green's home telephone, were not generally used by parties other than Green. See Cleveland, 964 F. Supp. at 1094 ("By intercepting only conversations in which Bankston was involved, the investigations was narrowly tailored so that almost every interception was of a target of the investigation.").
As noted above, Green places primary reliance on the 7.1 percent minimization statistic contained in the April 9, 2002, ten-day report. The Fifth Circuit has noted that although statistics pertaining to minimization may provide some guidance in determining whether the government's efforts were objectively reasonable, see Brown, 303 F.3d at 605 n. 130, the United States Supreme Court "has discouraged the use of statistics, explaining that `blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to the correct answer.'" Bankston, 182 F.3d at 307 (quoting Scott, 436 U.S. at 140, 98 S. Ct. 1717)). Green's reliance on the 7.1 percent statistic in the April 9, 2002, report fails to take into account that 326 of the calls intercepted were under two minutes in length. Generally, "[w]hen nonpertinent calls are short, ambiguous in nature, and/or involve guarded or coded language, `agents can hardly be expected to know that the calls are pertinent prior to their termination' and hence their interception is entirely reasonable." Cleveland, 964 F. Supp. at 1093 (quoting Scott, 436 U.S. at 140, 98 S. Ct. at 1724); see also Brown, 303 F.3d at 605-06 ("[M]any of the intercepted calls about which Brown complains were short, making minimization difficult."); United States v. Dumas, 313 F.3d 372, 380 (7th Cir. 2002) (agreeing that short calls, i.e. calls under two minutes, need not be minimized); Cleveland, 964 F. Supp. at 1094 n. 10 (exhaustively citing cases adopting a two or three minute threshold below which calls need not be minimized).
When the calls under two minutes are excluded from the calculation, the April 9, 2002, report reflects that the ratio of total minimized calls to calls exceeding two minutes is 26:40, a minimization rate of 65 percent. That rate is within the range of reasonableness that other courts have found in similar cases. See Cleveland, 964 F. Supp. at 1095 n. 12 (finding a minimization rate of 67 percent reasonable after excluding pertinent calls, incomplete calls, and calls under three minutes and citing cases approving minimization rates between 26 percent and 70 percent based upon a similar analysis). The government instructed the monitoring agents on minimization techniques, including "spot checking" and employment of the minimization button, and those techniques were used by the monitoring agents.
Finally, the government's wiretap investigation was monitored by Judge McNamara. The government regularly reported the progress of the Title III surveillance to Judge McNamara through submission of 10-day reports, updating the information received from the intercepted calls and providing minimization statistics throughout the duration of the Title III surveillance. When an issuing court determines, based on regularly submitted 10-day reports, including the results of interceptions, that the government was acting in a proper manner, the third factor of the Fifth Circuit's test for reasonable minimization is satisfied. See Bankston, 182 F.3d at 307.
Both factors of the Fifth Circuit's three-part test which are applicable to this case weigh in favor of finding that the government's minimization efforts were objectively reasonable. Based upon the above-discussed circumstances, the Court finds that the government has satisfied its burden and made a prima facie showing that its minimization of the intercepted calls was objectively reasonable. Therefore, the burden shifts to Green to show that more effective minimization could have taken place. Green has failed to do so. Other than advancing a generalized assertion that the government failed to minimize interceptions and pointing to one statistic, Green has made no showing that more effective minimization could have taken place. Accordingly, the evidence obtained from the Title III wiretap is not subject to suppression for failure to minimize.
In support of his minimization challenge, Green advances an argument that the government overreached by continuing to "track" calls made from Green's home without monitoring or intercepting any communications during a 6-day period after the initial wiretap order expired and the first extension on the wiretap was authorized. The Court rejects this argument. Since any such "tracked" calls were not monitored, minimization of any such calls is a non-issue.
Because the Court determines that the government's minimization efforts were objectively reasonable, the Court need not reach the government's argument with respect to the question of an appropriate remedy.
Accordingly, for the above and foregoing reasons, defendants' motions to suppress are DENIED.