NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3131
UNITED STATES OF AMERICA
v.
MAURICE LEWIS,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 01-cr-00231-1
(Honorable Stewart Dalzell)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 24, 2005
Before: SCIRICA, Chief Judge, ALITO and RENDELL, Circuit Judges
(Filed: July 19, 2005)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Following a denial of his motion to suppress evidence obtained through electronic
surveillance, Maurice Lewis pled guilty to one count of conspiracy to distribute more than
five kilograms of cocaine, in violation of 21 U.S.C. § 846, and several other drug-related
offenses. He was sentenced to life imprisonment plus five years. He appeals both his
conviction and sentence. The District Court had subject matter jurisdiction under 18
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We
will affirm the conviction, vacate the sentence and remand for resentencing.
Background
In November 1997, the District Court authorized electronic surveillance of a pay
phone in connection with an FBI investigation of drug trafficking in North Philadelphia.
The government’s application was supported by an affidavit from Special Agent Yacone.
This authorized surveillance and other, subsequent wiretaps led to the interception of a
large amount of drug-related conversations. Lewis later moved to suppress the
surveillance and its fruits. He also requested a hearing under Franks v. Delaware, 438
U.S. 154 (1977). The District Court declined to issue a formal ruling on the latter motion,
but nonetheless held an evidentiary hearing equivalent to a Franks hearing. After the
hearing the Court denied Lewis’s motion to suppress. Lewis then pled guilty while
preserving the limited right to appeal the denial of his motion to suppress and the alleged
denial of his motion for a Franks hearing.
Lewis raises four primary issues on appeal. First, he contends the District Court
erred when it refused to formally rule on the motion for a Franks hearing. Lewis asserts a
Franks hearing would have shown that the affidavit in support of the wiretap application
contained material misstatements and omissions on the probable cause and necessity
2
requirements of the wiretap statute, 18 U.S.C. § 2518(3). Second, Lewis disputes that
the affidavit itself provides the necessity for the wiretap. Third, he contends his motion to
suppress should not have been decided by the same judge who authorized the wiretap.
Finally, Lewis challenges his sentence.
Discussion
A. Refusal to Rule on Motion for a Franks hearing
Lewis contends he was entitled to a formal ruling on his motion for a hearing
under Franks v. Delaware, 438 U.S. 154 (1977). He also argues the evidentiary hearing
conducted by the District Court did not amount to a Franks hearing.1
As a general matter, “we review the denial of a suppression motion for clear error
as to the underlying facts, but exercise plenary review as to its legality in light of the
court’s properly found facts.” United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005).
We have not stated a precise standard of review where a District Court denied a Franks
hearing, and other circuits are split on this matter.2 However, as the more exacting
plenary review is satisfied here, we need not address the issue further.
1
We note on appeal that Lewis fails to cite any statement or omission in the affidavit
he considers to be untruthful.
2
Compare United States v. Skinner, 972 F.2d 171, 177 (7th Cir. 1992) (review for clear
error), United States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990) (same), and United
States v. One Parcel of Property, 897 F.2d 97, 100 (2d Cir. 1990) (same), with United
States v. Homick, 964 F.2d 899, 904 (9th Cir.1992) (de novo review), United States v.
Mueller, 902 F.2d 336, 341 (5th Cir. 1990) (same), and United States v. Fairchild, 122
F.3d 605, 610 (8th Cir. 1997) (review for abuse of discretion). See also United States v.
Stewart, 306 F.3d 295, 304 (6th Cir. 2002) (discussing circuit split).
3
On March 5, 2003, the District Court declined to formally rule on whether Lewis
had made the required threshold showing for a hearing under Franks v. Delaware, 438
U.S. 154 (1977).3 Nonetheless, the Court held an evidentiary hearing that lasted for one
and one half days. Lewis was permitted to challenge the truthfulness of every statement
in the affidavit by introducing documentary evidence and by cross-examining the
affidavit’s author, Agent Yacone, and another FBI agent involved in the investigation.
The District Court also reviewed an informant’s file in camera to determine the veracity
of Agent Yacone’s testimony.
We believe Lewis suffered no harm or prejudice from the District Court’s
declination to rule on his motion. The purpose of a Franks hearing is to give a criminal
defendant an opportunity to overcome the presumption of validity with respect to the
affidavit by impeaching the deliberate falsity or reckless disregard of the affiant. Franks,
438 U.S. at 171. The extensive evidentiary hearing actually held served precisely this
purpose. It is perfectly reasonable for the District Court to use a Franks hearing to
inquire into allegations of deception by a law enforcement officer even where a
defendant’s right to the requested hearing might be doubtful, especially when the
defendant faces a particularly severe sentence if convicted. In any event, the only party
3
To mandate an evidentiary hearing regarding the veracity of the affidavit’s author
under Franks, “the challenger’s attack must be more than conclusory and must be
supported by more than a mere desire to cross-examine. There must be allegations of
deliberate falsehood or of reckless disregard for the truth, and those allegations must be
accompanied by an offer of proof.” Franks, 438 U.S. at 171.
4
who might have had reason to complain about the District Court’s course of action is the
government. The District Court did not err when it refused to formally rule on Lewis’s
motion.
B. Necessity of the Wiretap
Lewis disputes that the affidavit demonstrated the necessity for wiretaps. “We
review de novo the question of whether a full and complete statement of necessity for a
wiretap was made in the application. Once it is determined that the statement was made,
we will review the court’s determination of necessity for an abuse of discretion.” United
States v. Phillips, 959 F.2d 1187, 1189 (3d Cir. 1992). To demonstrate necessity, the
government’s affidavit must contain a full and complete statement whether, inter alia,
“other investigative procedures have been tried and failed or why they reasonably appear
to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). The
court must then make a similar determination. § 2518(3)(c).4 These provisions were
designed to assure that electronic surveillance is not used when traditional investigative
techniques would be sufficient. United States v. Kahn, 415 U.S. 143, 153 n. 12 (1974).
Lewis contends that traditional investigative procedures would have sufficed. He
specifically points to the availability of nine confidential informants and to the potential
usefulness of physical surveillance, recorded drug purchases, and undercover agents.
4
The judge has to determine that “normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.”
5
Lewis also notes that, according to the affidavit, the government was already aware of
critical information, including the identities of four drug suppliers and the point of
distribution.
As we said in United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997), “courts
have consistently held that 18 U.S.C. § 2518(3)(c) does not require the government to
exhaust all other investigative procedures before resorting to electronic surveillance.”
Rather, the “government need only lay a ‘factual predicate’ sufficient to inform the judge
why other methods of investigation are not sufficient.” Williams, 124 F.3d at 418
(quoting United States v. McGlory, 968 F.2d 309, 345 (3d Cir. 1992)).
In the instant case, the wiretap application was submitted after nearly two years of
investigation. The affidavit contains six pages of detailed information regarding the
insufficiency of traditional investigative procedures. It states that physical surveillance
was of limited value because several “lookouts” always provided cover for the actual
drug transactions, and that they had become accomplished at detecting undercover police
vehicles. On one occasion, several of these “lookouts” even reportedly attacked an FBI
surveillance van. Also, the affidavit noted that none of the informants was in a position
to engage Lewis or his inner circle in a detailed conversation about the scope of Lewis’s
operation without raising suspicion. Furthermore, the affidavit states that a government
witness was killed just before he was to appear before a federal grand jury investigating
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Lewis’s drug trafficking activities. In sum, the affidavit demonstrated why other methods
of investigation were insufficient.
We also note that the government’s knowledge of some critical information does
not defeat necessity for a wiretap. “[I]t is unrealistic to require the termination of an
investigation before the entire scope of the narcotics distribution network is uncovered
and the identity of its participants learned.” United States v. Armocida, 515 F.2d 29, 38
(3d Cir. 1975).
C. Recusal / Referral to a Magistrate Judge
Lewis also contends the judge who granted the order authorizing the wiretap
should not have ruled on the motion to suppress the evidence. We disagree. As stated in
Liteky v. United States, 510 U.S. 540, 555 (1994), “judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.” They “can only in the rarest
circumstances evidence the degree of favoritism or antagonism required . . . when no
extrajudicial source is involved.” Id. The wiretap order in question does not constitute
such “circumstances.” There is no basis for recusal. See also United States v. Hanhardt,
134 F.Supp.2d 972, 976 (N.D.Ill. 2001) (denying motion for recusal from case or from
anticipated motion for suppression of evidence where same judge had previously
authorized numerous wiretaps).
Lewis also contends the District Court should have referred the motion to suppress
the evidence to a magistrate judge. 28 U.S.C. § 636(b)(1)(B) states “a judge may . . .
7
designate a magistrate judge to conduct . . . evidentiary hearings.” The District Court has
the discretion, but not a duty, to refer the matter to a magistrate judge. 5 We see no abuse
of discretion here.
D. Sentencing
Finally, Lewis challenges his sentence under Blakely v. Washington, 542 U.S. __,
124 S.Ct. 2531 (2004). This matter was addressed in United States v. Booker, 543 U.S.
__, 125 S.Ct. 738 (2005). Having determined that the sentencing issues raised are best
determined by the District Court in the first instance, we vacate the sentence and remand
in accordance with Booker.
Conclusion
For the foregoing reasons, we will affirm the judgment of conviction, vacate the
sentence and remand for resentencing.
5
A referral would help little to remedy any perceived impartiality of the District Court
judge. A magistrate judge has no authority to make a final and binding disposition
regarding a motion to suppress evidence. United States v. Raddatz, 447 U.S. 667, 673
(1980). Rather, he or she will submit findings of fact and recommendations which are
subject to a de novo determination by the District Court insofar as one of the parties
objects to them. 28 U.S.C. § 636(b)(1).
8