United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge.
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
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.
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)
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.
Department of Justice Approval
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
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).
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,  was included with the wiretap application.
(D.N. 69-3, PageID # 340-41)
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.