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United States v. Sykes

United States District Court, E.D. Wisconsin

April 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MYCHAL SYKES, Defendant.

          ORDER ADOPTING RECOMMENDATION (DKT. NO. 156) AND DENYING DEFENDANT'S MOTION TO SUPPRESS (DKT. NO. 137)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         On December 12, 2017, the defendant filed a motion to suppress all evidence and derivative evidence obtained from intercepted conversations, arguing that the wiretap applications did not meet the necessity requirement of 18 U.S.C. §2518(1)(c). Dkt. No. 137. The defendant simultaneously filed a motion for bill of particulars. Dkt. No. 138. Magistrate Judge William E. Duffin issued a recommendation and order on February 2, 2018, recommending that this court deny the motion to suppress because the government had met its burden by establishing necessity for the wiretap. Dkt. No. 156. In the same order, Judge Duffin granted the motion for a bill of particulars. Id. The defendant timely objected to the recommendation, asserting that Judge Duffin failed to address the specific shortcomings in the application that the defendant had raised in his earlier pleadings. Dkt. No. 159. The court will overrule the objection, adopt Judge Duffin's recommendation and deny the motion to suppress.

         I. Standard of Review for Recommendation

         Rule 59(b) governs dispositive motion practice initiated before magistrate judges. Fed. R. Crim. P. 59(b). Parties have fourteen days to file “specific written objections” to a magistrate judge's report and recommendation on a dispositive motion. Fed. R. Crim. P. 59(b)(2). When reviewing a magistrate's recommendation, the district judge reviews de novo the recommendations of the magistrate judge to which a party timely objects. 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(B)(2), (3). The court can “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.

         II. Government's Burden to Demonstrate Necessity

         When applying for a wiretap, the government must make “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); United States v. Long, 639 F.3d 293, 301 (7th Cir. 2011). Courts refer to this as the necessity requirement. United States v. Campos, 541 F.3d 735, 746 (7th Cir. 2008). The government's burden to prove necessity “is not great, ” and the court evaluates compliance with this requirement in a “practical and common-sense fashion.” Campos, 541 F.3d at 746. Nothing requires a showing of “absolute” necessity, or a showing that seeking the wiretaps was a last resort. Long, 639 F.3d at 301 (7th Cir. 2011). The necessity provision requires only that the wiretap applicant show that the success of other methods of investigation appears unlikely or too dangerous. Campos, 541 F.3d at 746. The requirement exists to ensure that the government does not use the wiretaps as a first step in an investigation. United States v. Durham, 2014 WL 4362838, *5 (7th Cir. 2014).

         III. Defendant's Objections

         In his objection to Judge Duffin's recommendation, the defendant notes that Judge Duffin relied on the fact that the government does not shoulder a heavy burden. Dkt. No. 159 at 1. He points to the fact that Judge Duffin felt that the government had shown necessity because it showed the need to unearth additional co-conspirators. Id. He referenced Judge Duffin's observation that the government had indicated in the applications that the drug conspiracy it was investigating was of unknown scope. Id. The defendant characterizes these as “broad principles, ” and concedes that they are a correct statement of the law. Id. at 2. He argues that the principles are so broad, however, that under them, “a wiretap would always be deemed necessary if the government hasn't learned every detail about a suspect or an organization that might exist.” Id. He also asserts that the principles assume that the reason law enforcement's other efforts did not uncover further information could be because there isn't any information to uncover, and not because the other means of investigation weren't sufficient. Id. For these reasons, the defendant argues that the fact that the scope of the conspiracy was not known is not sufficient to show the “necessity” of a wiretap. Id.

         The defendant next argues that the government's assertion that a wiretap was needed to identify the conspiracy's supplier was not sufficient. Id. at 3. The defendant asserts that the government didn't follow up on other investigative methods that would have identified the source. He disputes Judge Duffin's observation that doing things like surveilling one of the co-conspirators might have risked the investigation, arguing (without citing legal authority) that “the mere fact that an investigation [presumably, other methods of investigation than a wiretap] might carry some risk isn't enough.” Id. And he asserts that “neither the government nor the magistrate judge explain how [the co-conspirator] possibly realizing he was under surveillance would have scuttled the investigation.” Id.

         Next, the defendant asserts that Special Agent Richard Bilson's affidavits were not sufficient to demonstrate necessity. Id. He argues that the affidavits took a “divide-and-conquer” approach to necessity, by asserting that each individual technique (such as surveillance, or a garbage search, or a trap-and-trace) alone might not establish probable cause, without addressing whether all of the techniques cumulatively might have done so. Id. He takes issue with Judge Duffin's response that a reviewing judge could have conducted that calculation, arguing that Judge Duffin failed to do so. Id.

         The defendant concludes by stating that it “should not be enough” for the government to state that it doesn't know the scope of the conspiracy, can't identify the suppliers, or that that a single investigative technique would not work. Id. He asks the court to reject Judge Duffin's recommendation, and to suppress the fruits of the wiretaps.

         IV. The Court's Analysis

         On June 6, 2017, the government charged the defendant and nine others with various drug and firearm offenses. Dkt. No. 1. During the government's investigation, this court entered two orders under 18 U.S.C. §2518, authorizing the interception of wire communications to and from two cellular telephones used by Kavanaugh Coleman, who the government believed to be the leader of the drug trafficking organization. Dkt. No. 137-1 at 95, 196. The government voluntarily terminated the interception of phone number 414-487-7407 under the first order (authorized on March 17, 2017), because Coleman no longer used that number. The second order, dated May 5, 2017, authorized the interception of wire communications to and from the second phone number, 414-745-2347, for a period of thirty days. Dkt. No. 137-1 at 196.

         The government supported its applications with affidavits prepared by Bilson, who has worked for the Federal Bureau of Investigation since 2010. Dkt. No. 137-1 at 1-70, 96-170. In his March 17, 2017 affidavit, Bilson explained that the government had probable cause to believe that Coleman acted as the leader of the Coleman drug trafficking organization, which distributed multi-ounce to kilogram quantities of heroin and cocaine in the Milwaukee area. Dkt. No. 137-1 at 12. Multiple confidential sources provided historical information, recorded phone calls and bought distribution quantities of heroin from Coleman and other members of the organization. Id. at 12-13. At the time of the application, the investigation had used traditional law enforcement methods such as confidential sources, gathering and analysis of information from other ...


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