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United States v. Bennett

United States District Court, W.D. Kentucky, Louisville Division

November 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ERIC BENNETT, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge.

         Defendant Eric Bennett has filed a motion to suppress evidence obtained through a wiretap in this case, arguing that the wiretap was unnecessary. (Docket No. 58) In the alternative, Bennett requests a Franks hearing to determine whether material information was omitted from the wiretap application. (Id.) The United States maintains that the wiretap satisfies the statutory requirement for necessity and that Bennett has not proven the existence of material omissions to warrant a Franks hearing. (D.N. 69) For the reasons discussed below, the motion to suppress will be denied.

         I. BACKGROUND

         Eric Bennett was initially charged on February 22, 2017, with attempted murder of a federal employee, forcible assault of a federal employee, and discharge of a firearm during a crime of violence. (D.N. 1) These charges were brought following an investigation into the shooting of Daron Lester, a United States Postal Service (USPS) employee. (See D.N. 69-5, PageID # 352, 355; D.N. 69-6, PageID # 356, 359; D.N. 69-7, PageID # 360, 363) On April 19, 2017, the grand jury returned a superseding indictment naming two additional defendants: Marcus Bennett and Juliyah Young. (D.N. 24) The seven-count superseding indictment alleges that Eric Bennett, Marcus Bennett, and Juliyah Young conspired to distribute heroin and marijuana; Eric Bennett and Marcus Bennett conspired and attempted to murder a federal employee and forcibly assaulted a federal employee; and Eric Bennett alone discharged a firearm during a crime of violence, possessed a firearm as a convicted felon, and used and possessed a firearm in furtherance of a drug-trafficking crime. (Id.)

         The government obtained at least some of the evidence against Eric Bennett via wiretaps approved by this Court. Two wiretap applications were submitted in this case. Only one is relevant here, however. The Court approved a wiretap of Marcus Bennett's phone on February 3, 2017. (D.N. 58-2, PageID # 182, 236) Aaron Mehall, a United States Postal Inspector, submitted an affidavit in support of the wiretap application. (Id., PageID # 181)

         Eric Bennett filed a motion to suppress on September 11, 2017, arguing that (1) the February 3, 2017, wiretap application might not have been approved by the Department of Justice; (2) the wiretap was not necessary because traditional investigative techniques were sufficient; and (3) Inspector Mehall omitted material information from his affidavit. (D.N. 58) The United States responds that (1) the proper Department of Justice officials authorized the wiretap application; (2) Mehall's affidavit was sufficient to support a finding that normal investigative procedures had been tried and failed or reasonably appeared to be unlikely to succeed if tried; and (3) Bennett provided no basis to conclude that Mehall intentionally or recklessly omitted material facts. (D.N. 69)

         II. DISCUSSION

         A. Department of Justice Approval

         Bennett first questions whether the Department of Justice approved the wiretap application, as required by 18 U.S.C. § 2516. (See D.N. 58, PageID # 163-64) Section 2516 provides:

The Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division or National Security Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for . . . an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made . . . .

18 U.S.C. § 2516(1). The consequence of failing to comply with this requirement is suppression: “We are confident that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored.” United States v. Giordano, 416 U.S. 505, 528 (1974).

         Bennett asserts that the government failed to attach a memorandum of authorization to the copy of the wiretap materials he received in discovery. (D.N. 58, PageID # 163) The absence of this memorandum from discovery, he posits, raises a question as to whether the government provided such a memorandum to the Court. (Id., PageID # 164) The United States responds that it obtained proper authorization for the wiretap application and that the authorization memorandum was attached to the application and presented to the Court. (D.N. 69, PageID # 270) In support, the United States attached the entire application to its response to the motion to suppress. (Id., PageID # 270-71; D.N. 69-3) The attachment clearly shows that a memorandum of authorization, signed by an Acting Deputy Assistant Attorney General of the Criminal Division, [1] was included with the wiretap application. (D.N. 69-3, PageID # 340-41)

         Therefore, the Court finds that the United States complied with the preapproval requirement of 18 U.S.C. § 2516(1), and suppression is not warranted on this ground.

         B. ...


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