NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 15-3211
UNITED STATES OF AMERICA
v.
BRANDON THOMPSON, a/k/a B-ROCK, a/k/a ROCK,
a/k/a RIZZLE, a/k/a RIZZIE
Brandon Thompson,
Appellant
Nos. 15-3212
UNITED STATES OF AMERICA
v.
BRANDON THOMPSON,
Appellant
__________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. Nos.: 2-13-cr-00058-001 and 2-14-cr-00139-001)
District Judge: Honorable Cathy Bissoon
__________________________
Submitted under Third Circuit L.A.R. 34.1(a)
on September 12, 2017
Before: VANASKIE, RENDELL, and FISHER, Circuit Judges
(Opinion filed: November 17, 2017)
O P I N I O N*
___________
RENDELL, Circuit Judge:
Brandon J. Thompson appeals the District Court’s denial of his motion to suppress
wiretap recordings made by the Government. Thompson also appeals the denial of his
motion to dismiss the indictment on the grounds that his Sixth Amendment right to a
speedy trial was violated. We will affirm the denial of both motions.1
I.
Thompson, along with seven other co-defendants, was charged with several crimes
related to his participation in a heroin distribution conspiracy. Thompson ultimately pled
guilty and was sentenced to 180 months in prison.
Prior to trial, the Government notified Thompson that it planned to introduce
inculpatory statements collected through court-ordered telephone wiretaps. Thompson
filed a motion to suppress the wire intercepts, arguing that 18 U.S.C. § 2518(8)(a)
required the Government to prove “actual” sealing of the wiretap tapes. A.202. The
Government argued that, in light of “a signed order from a district court judge that says
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
We possess jurisdiction over this appeal from a final district court decision pursuant to
28 U.S.C. § 1291.
2
they were sealed,” it did not need to provide any additional evidence that the tapes had
been sealed as required by the statute. A.394. The District Court denied the motion to
suppress, finding “[t]he sealing order [was] sufficient evidence that the wiretaps in this
case were properly sealed.” A.395.
At the conclusion of the motions hearing, the District Court set a trial date for
December 1, 2014. The next day, the Government requested a continuance, citing the
volume of evidence they needed to organize and the need to pursue further plea
discussions with a number of the defendants. This motion was granted and the trial date
was pushed back to January 12, 2015.
Thompson—along with co-defendant Santino Drew—had also been indicted for
possession with intent to distribute cocaine in another jurisdiction in February 2013. On
November 4, 2014, the District Court granted the Government’s motion, over
Thompson’s objection, to consolidate the indictments. Just four days before the
Government’s motion was heard, Drew was appointed a new attorney who subsequently
moved for a continuance to familiarize himself with the case. The District Court granted
the motion, pushing the trial date back until May 4, 2015. Thompson’s counsel did not
object to this continuance. A.596.
In April 2015, Thompson’s counsel filed a motion to dismiss the indictment on the
grounds that his Sixth Amendment right to a speedy trial had been denied. By that time,
Thompson had been held in pretrial detention for roughly twenty-five months. His trial
was scheduled for twenty-six months after the first indictment had been issued and
nineteen months after the second indictment. The Government argued that it was only
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responsible for the month delay between December 2014 and January 2015—all the other
delays were attributable to Thompson or his co-defendants. The District Court denied
Thompson’s motion to dismiss. A.596.
Thompson entered a guilty plea just days before his scheduled trial. In his plea
agreement, he specifically reserved the right to appeal the District Court’s denial of his
motion to suppress the wiretap evidence and the denial of his motion to dismiss based on
a violation of his Sixth Amendment right to a speedy trial.
II.
We first consider whether the District Court properly found that the wiretap tapes
were sealed in compliance with 18 U.S.C. § 2518. This determination is a finding of fact,
which is subject to a clear error review. United States v. Kennedy, 638 F.3d 159, 163 (3d
Cir. 2011); United States v. Vastola, 25 F.3d 164, 167 (3d Cir. 1994). “A finding is
clearly erroneous when, although there is evidence to support it, the reviewing body on
the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. Velazquez, 749 F.3d 161, 176 (3d Cir. 2014) (citation
omitted).
Section 2518(8)(a) of the wiretap statute states, in part:
Immediately upon the expiration of the period of the [wiretap] order, . . .
such recordings shall be made available to the judge issuing such order and
sealed under his directions. . . . The presence of the seal provided for by
this subsection, or a satisfactory explanation for the absence thereof, shall
be a prerequisite for the use or disclosure of the contents of any wire, oral,
or electronic communication or evidence derived therefrom under
subsection (3) of section 2517.
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18 U.S.C. § 2518(8)(a). The sealing orders were in fact signed and the District Court
expressed satisfaction at the omnibus motion hearing that the orders were sufficiently
followed. A.394–95. Thompson did not present the District Court with any additional
evidence that the wiretap tapes had not been sealed or that there was any delay in their
sealing. Thus we cannot conclude, based on this body of evidence, that the District Court
clearly erred in finding the tapes had been sealed.
Nor did Thompson allege that the wiretap tapes had been tampered with or
otherwise failed to accurately reflect his conversations. Section 2518(8)(a)’s purpose is
to “protect the recording [of wiretap evidence] from editing or other alterations.” United
States v. Ojeda Rios, 495 U.S. 257, 259 (2009). Thompson suggests that the Government
bore the burden of proving, as a threshold matter, that the wiretap tapes had been sealed
in compliance with § 2518. We need not determine whether this burden indeed lies with
the Government. However, it is unlikely that—absent some allegation of tampering—the
Government must prove as a threshold matter that the tapes were not tampered with. See
United States v. Burgos-Montes, 786 F.2d 92, 104 (1st Cir. 2015) (“On appeal,
[defendant] again offers no allegations of tampering. While the burden of proof is on the
government, this does not mean the government must prove a negative . . . .”).
III.
We next turn to Thompson’s argument that his Sixth Amendment right to a speedy
trial was violated.2 “We exercise de novo review over legal questions in a claim of Sixth
2
On appeal, Thompson relinquishes his argument under the Speedy Trial Act.
18 U.S.C. § 3161 et seq.
5
Amendment error and review the underlying factual findings for clear error.” United
States v. Claxton, 766 F.3d 280, 293 (3d Cir. 2014) (citation omitted).
Whether a defendant was denied the right to a speedy trial requires application of
the factors established in Barker v. Wingo, 407 U.S. 514 (1972). “The inquiry focuses
on: (1) the length of delay before trial; (2) the reasons for the delay and, specifically
whether the government or defendant is more to blame; (3) the extent to which the
defendant asserted his speedy trial right; and (4) the prejudice suffered by the defendant.”
Claxton, 766 F.3d at 293 (citations omitted). Both parties agree that the threshold
issue—length of delay—favors Thompson because he was held in pretrial detention for
twenty-six months. A525. We note, however, that this delay is not so severe as to weigh
heavily in favor of Thompson, particularly since this case was part of a large-scale
prosecution against a total of thirty-three defendants engaged in a complex drug
distribution conspiracy. See Barker, 407 U.S. at 531 (“the delay that can be tolerated for
an ordinary street crime is considerably less than for a serious, complex conspiracy
charge.”).
The second Barker factor weighs heavily against Thompson. Defendants bear the
responsibility of delay caused by their co-defendants, and such delay cannot be attributed
to the Government. Claxton, 766 F.3d at 295 (“[T]hat delay was excusable as a result of
the myriad [of] motions and appeals filed by [defendant] and his co-defendants. Such
excusable delay is subtracted from the delay attributable to the government.”) (citation
omitted)). Thompson alleges a twenty-six month delay. Brief for Appellant, 30. We
agree with the District Court that the Government was responsible for at least one-month
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of delay (the December 2014 to January 2015 trial continuance). A.596. Thompson
claims that the Government is also responsible for the four-month delay caused by his
co-defendant Drew’s requested continuance. He suggests that when the Government
filed its motion to consolidate the two trials, it should have anticipated that Drew’s
newly-appointed counsel would request a continuance. Even if we were to accept this
argument, the Government would still only be responsible for five of the twenty-six
months of delay.3 Thompson cannot escape the fact that the majority of the delay was a
result of Thompson and his co-defendants’ myriad of pretrial motions. This second
factor therefore weighs against Thompson.
With regard to the third Barker factor, the Government concedes that Thompson
asserted and preserved his right to a speedy trial. However, this factor does not weigh
heavily in favor of Thompson since he himself filed a number of pre-trial motions, sought
two continuances, and did not object to his co-defendants’ various pre-trial motions. See
Barker, 407 U.S. 536 (finding that a defendant’s failure to object to continuances
weighed against finding a violation of his right to a speedy trial). And Thompson
concedes that the fourth factor—prejudice—weighs against him. Brief for Appellant, 27.
3
The Government contends that Thompson has waived the argument that the
Government is responsible for this four month delay because he did not preserve it for
appeal. Because we decide that the second Barker factor weighs against Thompson even
if we do attribute those additional four months to the Government, we need not decide
whether Thompson properly preserved the argument for appeal.
7
Because two of the four Barker factors weigh against Thompson and the
remaining two only weakly favor him, the denial of Thompson’s motion to dismiss the
indictment on grounds of a Sixth Amendment violation is affirmed.
IV.
Accordingly, we will affirm the Orders of the District Court.
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