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United States v. Brock

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

September 5, 2019

UNITED STATES OF AMERICA
v.
DAMIONE BROCK

          HORNSBY MAGISTRATE JUDGE.

          MEMORANDUM RULING

          DONALD E. WALTER UNITED STATES DISTRICT JUDGE.

         Before the Court are two related motions in the above-captioned matter. Defendant Damione Brock (“Brock”) filed a Motion to Suppress Evidence and Request for Franks Hearing and Motion to Amend and Supplement Motion to Suppress and Request for Franks Hearing. See Record Document 166; Record Document 191.[1] The Government filed an opposition. See Record Document 197. For the reasons herein, the motions are DENIED.

         BACKGROUND INFORMATION

         Brock is charged with one count of conspiracy to possess with the intent to distribute methamphetamine, a schedule II controlled dangerous substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A)(viii). His co-defendants are Roderick Dewaine Hogan (“Hogan”), Steven Dewayne Gilbert (“Gilbert”), Keisarah McGee (“McGee”), and Marvin Beck. See Record Document 157. Brock is an inmate at Angola State Penitentiary. The charges in this case stem from an alleged attempt to smuggle methamphetamine into the penitentiary for distribution.

         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 Court's orders, phone owner, and numbers 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.

         While incarcerated in Angola, Brock was allegedly heard communicating with Hogan on (318) 578-2387, one of the telephone numbers authorized for interception. The government alleges that Brock arranged the transfer of methamphetamine to McGee, a correctional officer employed at Angola, who later attempted to bring the drugs into the penitentiary. McGee was stopped while attempting to enter, and methamphetamine was found in her vehicle. Brock seeks to suppress the wire and electronic intercepts and all evidence derived therefrom.

         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. However, such intercepts, or evidence derived therefrom, may be suppressed if: “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). Brock 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

         Brock 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 191 at 2. Brock 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 197-1 at 16-18 (Government Ex. A). A signature appears directly above Mr. Hulser's name and title. See id. Brock 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 Brock's is insufficient to support such a claim. Although Brock argues that the signature authorizing the application for continued wiretap interceptions is not that of Mr. Hulser, he has offered the Court nothing to support this contention other than argument. “General or conclusory assertions, founded upon mere suspicion or conjecture, will not suffice.” Id. (citation omitted).

         Brock further argues that even if the signature contained in Government Exhibit A is that of Deputy Assistant Attorney General Raymond Hulser, he did not have authorization nor probable cause[2] to approve the continued interception of communications to and from telephone number (318) 578-2387 belonging to Hogan. See Record Document 191 at 3. This argument is without merit. Title 18 U.S.C. § 2516(1) provides that any Deputy Assistant Attorney General may authorize an application to present to a federal judge to obtain a wire intercept. The Government's Exhibit A is a letter from the Attorney General's office to the Criminal Division of the Department authorizing the presentation of the wire intercept application for number (318) 578-2387 to a federal judge. Mr. Hulser did not “approve” the wire intercept. Only a federal judge may do that. Mr. Hulser, in his capacity as Deputy Assistant Attorney General, approved the presentation of the application to Judge Hicks. This is clearly within Mr. Hulser's authority under the statute.

         B. Use of Wiretap ...


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