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United States v. Noonan

United States District Court, District of Maine

August 27, 2014

UNITED STATES OF AMERICA,
v.
GEORGE NOONAN, JONATHAN SULLIVAN, Defendants.

Defendant (1) GEORGE NOONAN represented by PETER E. RODWAY RODWAY & HORODYSKI JOEL VINCENT VINCENT, KANTZ, PITTMAN & THOMPSON

Plaintiff USA represented by DAVID B. JOYCE U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE Plaintiff USA represented by DAVID B. JOYCE U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE

ORDER ON MOTION TO SUPPRESS

George Z. Singal United States District Judge

Before the Court is Defendant Jonathan Sullivan’s Motion To Suppress With Incorporated Memorandum Of Law: Intercepted Telephone Conversations (ECF No. 76) (“Motion to Suppress”). Defendant George Noonan joined the Motion to Suppress. (ECF No. 77.) The Court has determined that no hearing is necessary to decide these pending motions. For the reasons explained below, the Court DENIES the Motion to Suppress. (ECF No. 76 & 77.)

I. BACKGROUND

On December 28, 2012, the Government submitted an application and 73-page supporting affidavit of FBI Special Agent Patrick M. Clancy (the “December 28 Affidavit”) to the Court. The application sought authorization to intercept wire and electronic communications occurring over the cellular telephone assigned telephone number (207) 523-9978 (“Target Telephone #1” or “TT1”). The Court then authorized interceptions of wire and electronic communications occurring over TT1, and original interception of Target Telephone #1 began on December 28, 2012.

On January 25, 2013, the Government submitted an application and 70-page supporting affidavit of SA Clancy (the “January 25 Affidavit”) to a different judge of this Court. This application sought a 30-day extension of wire and electronic interceptions occurring over TT1 as well as original wire interceptions occurring over the cellular telephone assigned telephone number (781) 983-7616 (“Target Telephone #2” or “TT2”). Subsequently, the Court issued an Order authorizing an additional 30 days of interceptions of wire and electronic communications occurring over TT1 and an original 30 days of interceptions over TT2. Interception of TT1 pursuant to this authorization began on January 25, 2013 and ended on February 23, 2013. Interception of TT2 pursuant to this authorization began on January 26, 2013 and ended on February 24, 2013.

On April 18, 2013, the Government submitted an application and 66-page supporting affidavit of SA Clancy (the “April 18 Affidavit”) to the Court. The application sought authorization to renew interceptions of wire and electronic communications occurring over TT1. The Court then authorized interceptions of wire and electronic communications occurring over TT1. Interception of TT1 pursuant to this authorization began on April 23, 2013 and ended on May 22, 2013.

On June 14, 2013, a criminal complaint was filed against George Noonan alleging a single count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). (ECF No. 1.) On September 10, 2013, an indictment was filed against Noonan charging one count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). (ECF No. 30.) On December 12, 2013, a superseding indictment was filed against Noonan and George Sullivan, alleging seven counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) against Noonan (Counts 1-7), one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) against Noonan (Count 8) and one count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 against Noonan and Sullivan.

On May 5, 2014, Sullivan filed this Motion to Suppress (ECF No. 76), which was joined by Noonan (ECF No. 77). Through the Motion to Suppress Wiretap, Defendants Sullivan and Noonan raise five challenges to the wiretap evidence: (1) the intercept orders are insufficient; (2) the applications failed to establish necessity; (3) the affidavits include false statements and material omissions; (4) conversations were not properly minimized; and (5) the affidavits relied on informants with compromised credibility. The Court will address each argument in turn.

II. DISCUSSION

A. The Intercept Orders

Through the Motion to Suppress, Defendants argue that the applications for the wiretaps and the Orders authorizing intercepts are facially insufficient because they fail to: (1) provide a sufficiently particular description of the type of communication sought to be intercepted; (2) describe the particular offense to which they relate; and (3) identify the law enforcement officers conducting the interceptions. The Court notes that this argument is copied almost verbatim from a suppression motion filed in United States v. Hasan Worthy, No. 2:12-cr-135-DBH. (Compare Motion to Suppress (ECF No. 76) at 3-6, with Worthy Motion to Suppress (ECF. No. 47 in 2:12-cr-135-DBH) at 6-11.) In United States v. Worthy, the Court dismissed of this argument in a footnote, finding that:

The defendant says that the Court’s two wiretap Orders fail the statutory requirement of “a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates.” Mot. to Suppress Wire Intercepts, 2:12–cr–135–DBH, at 7 (ECF No. 47) (quoting 18 U.S.C. § 2518(4)(c)). I disagree. The Orders specify the telephone numbers and electronic serial numbers in question and extend monitoring permission to numbers accessed through them and to changed telephone numbers assigned to a particular landline telephone. They also allow listening to background conversations. They thus describe the type of communication to be intercepted. The Orders also enumerate the federal crimes being investigated, along with statutory citations.
The defendant further asserts that the Orders fail the requirement that interception not be for “any period longer than is necessary to achieve the objective of the authorization, ” or in any event 30 days. Mot. to Suppress Wire Intercepts, 2:12– cr–135–DBH, at 8 (ECF No. 47) (quoting 18 U.S.C. § 2518(5)). Once again, I disagree. The Orders limit the interceptions to the earlier of 30 days or when they “fully reveal” information about the crimes.
The defendant also argues that the Orders fail to identify “the agency authorized to intercept the communications.” Mot. to Suppress Wire Intercepts, 2:12–cr–135– DBH, at 9 (ECF No. 47) (quoting 18 U.S.C. § 2518(4)(d)). In fact, the Orders identify the investigating agency as “special agents of the United States Drug Enforcement Administration, ” and they were entered upon the affidavits of a DEA special agent. It is true that the Orders’ interception and recording authority extends to “other investigative and law enforcement officers, pursuant to the application of Assistant United States Attorney Daniel J. Perry, ” but the listening ...

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