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United States v. Gilbert

United States District Court, W.D. Louisiana, Shreveport Division

September 5, 2019

UNITED STATES OF AMERICA
v.
STEVEN DEWAYNE GILBERT

          HORNSBY MAGISTRATE JUDGE.

          MEMORANDUM RULING

          DONALD E. WALTER UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion to Suppress and Request for Franks[1] Hearing filed by the Defendant, Steven Dewayne Gilbert (“Gilbert”). See Record Document 199. The Government opposes this motion. See Record Document 204. For the reasons assigned herein, Gilbert's motion is hereby DENIED.

         BACKGROUND INFORMATION

         Gilbert is charged with one count of conspiracy to possess with the intent to distribute cocaine, a schedule II controlled dangerous substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C). Additionally, Gilbert is also charged with one count of distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Gilbert's co-defendants are Roderick Dewaine Hogan (“Hogan”), Damione Brock (“Brock”), Marvin Beck, and Keisarah McGee.

         In 2018, Drug Enforcement Administration (“DEA”) agents were investigating Hogan for dealing drugs. As part of the investigation, the Honorable S. Maurice Hicks, Jr., Chief United States District Judge for the Western District of Louisiana, signed several orders authorizing the interception of wire communications by Hogan and Gilbert. The date of the Court's orders, phone owner, and number intercepted are as follows: (1) October 4, 2018, Hogan, (318) 578-2387 and (318) 402-2227; (2) October 18, 2018, Hogan, (318) 423-4087, (3) November 5, 2018, Hogan, (318) 578-2387; (4) November 16, 2018, Gilbert, (318) 578-3434.

         The Government alleges that on or around December 14, 2018, Gilbert's intercepted phone, (318) 578-3434, received several phone calls from Kegan Weaver (“Weaver”) from the number (501) 504-6364. The phone calls allegedly revealed that Weaver discussed the purchase of cocaine from Gilbert. The Government contends that Gilbert and Weaver met up and drove to Hogan's home in Plain Dealing, Louisiana. The two were allegedly at Hogan's home for several minutes before driving back to Gilbert's home. A short while later, Weaver left Gilbert's home and began driving back to his home in Arkansas. Weaver was stopped by law enforcement while driving home, and 28 grams of cocaine were discovered in his vehicle.

         On December 18, 2018, search warrants were executed on Gilbert's homes in Plain Dealing, Louisiana, and Lewisville, Arkansas. The same day, Gilbert's phone was intercepted. Gilbert was allegedly heard arranging to sell cocaine to Patrick Clayton.

         Gilbert seeks to suppress all wire and electronic intercepts occurring between November 30, 2018 through December 18, 2018 to and from telephone number (318) 578-2387 belonging to Hogan. See Record Document 199 at 5. Gilbert also seeks to suppress all evidence derived therefrom as fruit of the poisonous tree. See id.

         LAW AND ANALYSIS

         The Omnibus Crime Control and Safe Street Act of 1968 provides that under certain circumstances a federal judge may issue wiretap orders authorizing the interception of communications in an effort to prevent, detect, or prosecute serious federal crimes. See 18 U.S.C. § 2510 et seq. The statute requires that a judge must find probable cause to issue the order, and sets forth detailed requirements for both the application process as well as the order authorizing the wiretap. See 18 U.S.C. § 2518. The statute also provides that wiretaps, and evidence derived therefrom, may be suppressed if: “(i) the communication was unlawfully intercepted; (ii) the order or [] approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(a). Gilbert raises several arguments in support of his motion to suppress the wire intercepts in the case against him, which the Court will address in turn.

         A. Alleged Irregularities with the Application

         Gilbert argues that the Government's November 5, 2018, Application for Continued Interception of Wire and Electronic Communications that was presented to Judge Hicks included an attachment which does not contain the true initials or signature of Deputy Assistant Attorney General Raymond Hulser. See Record Document 199 at 1. Gilbert argues that this results in the Department of Justice (“DOJ”) approving officer being misidentified. See id. The exhibit in question contains Raymond Hulser's name and title of Deputy Assistant Attorney General, Criminal Division. See Record Document 204-1 at 16-17 (Government Ex. A). A signature appears directly above Mr. Hulser's name and title. See id. Gilbert argues that the signature is not that of Mr. Hulser.

         “[A]n evidentiary hearing is required on a motion to suppress only when necessary to receive evidence on an issue of fact.” United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). A hearing is necessary only when a defendant alleges sufficient facts, if proven true, that would justify relief. See id. Sufficient facts are those that are specific, detailed, and nonconjectural. See id. A bare allegation such as Gilbert's is insufficient to support such a claim. Although Gilbert argues that the signature authorizing the application for continued wiretap interceptions is not that of Mr. Hulser, he has offered the Court nothing to ...


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