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United States v. Wilkins

United States District Court, D. Massachusetts

April 27, 2017

UNITED STATES OF AMERICA,
v.
CHRISTOPHER WILKINS, Defendant.

          MEMORANDUM AND ORDER

          Patti B. Saris Chief United States District Judge.

         Christopher Wilkins, who has been charged in a multi-count indictment for his involvement in a drug trafficking organization in Cape Cod, moves to suppress evidence derived from the Title III wiretaps of Target Telephones (TT) 9 to 17. Docket No. 373. Wilkins argues that the affidavits submitted in support of the wiretap applications failed to establish necessity, as required by 18 U.S.C. § 2518(1)(c). The Court previously allowed co-defendants Denzel Chisholm and Browning Mejia to join Wilkins' motion. Docket Nos. 465, 470.

         The government made a sufficient showing of necessity in its wiretap applications. Wilkins' motion to suppress (Docket No. 373) is DENIED.

         DISCUSSION

         The charges in this case arise from an alleged drug trafficking organization (“DTO”) led by Denzel Chisholm and Christian Chapman that distributed cocaine, fentanyl, and heroin in Cape Cod. Federal authorities conducted a wiretap investigation of the drug trafficking organization from October 2015 to April 2016. Title III wiretaps were authorized on seventeen target telephones (TT 1 to 17) belonging to seven different persons.

         Wilkins seeks to suppress evidence derived from TT 9 to 17. He argues that the government lacked necessity to wiretap those phones because the goals of the investigation had already been accomplished by the time those wiretaps were sought. Wilkins' motion calls for an inquiry into the affidavits supporting two wiretap applications. The February 24, 2016 affidavit supported an application to renew the wiretap on TT 9 and initiate wiretaps on TT 10 to 15. Docket No. 452-4. The March 23, 2016 affidavit supported an application to renew the wiretaps on TT 11 and 15 and to initiate wiretaps on TT 16 and 17. Docket No. 452-5.

         Wilkins also argues that to the extent any of the government's investigative goals were not accomplished, the wiretap applications were nonetheless invalid because the investigative goals were overly broad and calculated to manufacture necessity.

         Wilkins does not argue that the government lacked probable cause for any of the wiretaps. Nor does Wilkins challenge any evidence derived from the earlier wiretaps in the investigation.

         I. Legal Framework

         A Title III wiretap application must 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.” 18 U.S.C. § 2518(1)(c). This provision is known as the necessity requirement. United States v. Cartagena, 593 F.3d 104, 109 (1st Cir. 2010). The First Circuit “ha[s] interpreted that provision to mean that the statement should demonstrate that the government has made ‘a reasonable, good faith effort to run the gamut of normal investigative procedures before resorting to means so intrusive as electronic interception of telephone calls.'” United States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir. 2003) (quoting United States v. Hoffman, 832 F.2d 1299, 1306-07 (1st Cir. 1987)). “[T]he government is not required to show that other investigative methods have been wholly unsuccessful, nor must the government exhaust all other investigative measures before resorting to wiretapping.” Cartagena, 593 F.3d at 109. In reviewing the government's showing of necessity, the question is whether “the facts set forth in the application were minimally adequate to support the determination that was made.” United States v. Rose, 802 F.3d 114, 118 (1st Cir. 2015) (quoting United States v. Yeje-Cabrera, 430 F.3d 1, 7 (1st Cir. 2005)).

         To meet this standard, “the government's affidavit must show with specificity why ordinary means of investigation will fail; conclusory statements without factual support are not sufficient.” United States v. Lopez, 300 F.3d 46, 53 (1st Cir. 2002). “[B]are conclusory statements that normal techniques would be unproductive, based solely on an affiant's prior experience, ” are insufficient. United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989).

         II. February 24, 2016 Affidavit

         The February 24, 2016 affidavit was submitted in support of the government's application for wiretaps on TT 9 to 15. A thirty-four page section of the affidavit explained at length the need for interception. The affidavit described the partial success achieved thus far, including controlled purchases from Wilkins, identification of additional target subjects, a determination that Chapman and Chisholm were distributing narcotics to lower-level dealers, and identification of addresses for a number of stash houses. Docket No. 452-4 ¶ 162. The affidavit explained that despite the partial success, there was still insufficient evidence to prove the guilt of Wilkins, Chisholm, and Chapman beyond a reasonable doubt, particularly with regard to money laundering and firearm charges. Docket No. 452-4 ¶ 163-64. The affidavit described with specificity the ordinary investigative techniques used thus far, including undercover agents, confidential sources and cooperating witnesses, a grand jury investigation, pen registers, physical surveillance, and other investigative techniques (such as tracking devices, trash searches, and search warrants). Docket No. 452-4 ¶¶ 167-232. The affidavit explained the limitations of those ordinary investigative techniques in the context of this particular investigation, describing the tight-knit nature of this particular DTO that made it difficult for outsiders to infiltrate, Docket No. 452-4 ¶ 167; the violent nature of the DTO, which made confidential sources reluctant to testify, Docket No. 452-4 ¶ 209; and the DTO's storage of contraband in alternative locations that were not as susceptible to search warrants, Docket No. 452-4 ¶ 230. The affidavit concluded that wiretaps were necessary because those traditional investigative techniques had been unsuccessful in ascertaining the full scope of this DTO and in securing the identities of all the individuals involved. Docket No. 452-4 ¶ 240.

         The government's affidavit contains detailed facts about the need for wiretaps in this particular investigation, and it easily meets the “minimally adequate” showing, Rose, 802 F.3d at 118, required under § 2518(1)(c). Indeed, Wilkins does little to challenge the government's showing that investigators had attempted a whole range of traditional investigative techniques. Rather, Wilkins argues that by February 24, 2016, investigators had already achieved their investigative goals. But while investigators had conducted controlled purchases from Wilkins by this time, investigators had not fully identified Wilkins' suppliers and did not have the same amount of evidence against other high-level members of the DTO. Docket No. 452-4 ¶ 226. The First Circuit's decision in United States v. Cao, 471 F.3d 1 (1st Cir. 2006), is on point. There, the First Circuit faced a similar challenge to wiretap necessity and wrote: “The affidavit in support of the wiretaps made clear that although the investigation had secured much information through conventional means, some of the sources of [drug] supply and some of the other participants had not been identified; and, partly because of the precautions (e.g., avoiding surveillance, changing of phone numbers) taken by conspirators, the wiretaps remained essential. The affidavit also explained why changed conditions made the confidential informants of little use in further investigations. Plainly the partial success of the investigation did not mean that there was nothing more to be done.” Id. at 3; see also United States v. Albertelli, 687 F.3d 439, 444 (1st Cir. 2012) (reiterating that “partial success of the investigation” did not preclude continued wiretap); Villarman-Oviedo, 325 F.3d at 10 (“Even though a New York confidential informant had enabled the agents to identify some of the main co-conspirators, ...


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