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United States v. Cooper

United States Court of Appeals, Sixth Circuit

June 22, 2018

United States of America, Plaintiff-Appellee,
v.
Jamal Cooper, Defendant-Appellant.

          Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:14-cr-00090-1-Aleta Arthur Trauger, District Judge.

         ON BRIEF:

          EILEEN M. PARRISH, NASHVILLE, TENNESSEE, FOR APPELLANT.

          VAN S. VINCENT, UNITED STATES ATTORNEY'S OFFICE, NASHVILLE, TENNESSEE, FOR APPELLEE.

          Before: BOGGS, BATCHELDER, and THAPAR, Circuit Judges.

          OPINION

          ALICE M. BATCHELDER, Circuit Judge.

         The defendant appeals the denial of his motions to suppress evidence obtained from government wiretaps, claiming that the wiretaps were not properly authorized. He claims that the affidavit for the wiretap application did not demonstrate the necessity of the wiretap and that it materially misrepresented some facts and omitted others, necessitating a Franks hearing. He also claims that the government improperly used one application for two wiretap orders, did not seal the wiretap recordings as "immediately" as the statute requires or explain its failure to do so, and did not prove that certain undercover informants consented voluntarily to the recordings of their communications on the wiretaps. We affirm.

         I.

         On March 31, 2014, the government obtained a 30-day electronic surveillance order authorizing the wiretapping of cellphones identified as "Target Telephone 1" (TT1) used by Eric Williams, and TT2 used by defendant-appellant Jamal Cooper. The government submitted a single application and the court issued a single wiretap order to cover both phones.

         The government intercepted Cooper's calls using TT2 for the next two weeks, including a call on Saturday evening, April 12. Cooper made no more calls on TT2 and the government confirmed this through a confidential informant on Monday, April 14, when it ended its TT2 surveillance. On Wednesday, April 16, the government provided the disc containing the TT2 wiretap recordings to the district court for the court to seal. The government did not intercept any conversations from TT1 because Williams had stopped using it prior to March 31, 2014.

         When the government charged Cooper with drug trafficking, he moved to suppress the evidence gathered directly or derivatively from the TT2 wiretap (and all subsequent wiretap recordings as fruits of the TT2 wiretap). Cooper accused the government of violating both the Fourth Amendment and 18 U.S.C. § 2518(1)(c), claiming that the TT2 application did not establish the necessity for the wiretap. Cooper also accused the government of violating § 2518(8)(a) because, Cooper argued, it did not seal the TT2 recording "immediately" as required by the statute. The district court denied the motion without a hearing, relying on the affidavit accompanying the wiretap application and record evidence. United States v. Cooper, No. 3:14-cr-00090, 2015 WL 236271 (M.D. Tenn. Jan. 16, 2015).

         Later, Cooper moved again to suppress the evidence from the TT2 wiretap, requesting a hearing under Franks v. Delaware, 438 U.S. 154 (1978), based on his claim that the TT2 application's supporting affidavit was flawed by material misrepresentations and omissions. Cooper also claimed that the government violated § 2518(1)(c) "by offering generalized statements concerning two or more potential targets in its application for permission to use wiretaps" and "surreptitiously recorded conversations allegedly between Jamal Cooper and various confidential informants . . . without either parties' [sic] consent." The district court denied the motion.

         Eventually, Cooper entered a guilty plea pursuant to a negotiated plea agreement in which he reserved the right to appeal the denials of his suppression motions. The district court accepted the plea ...


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