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United States v. Banks

United States District Court, D. Kansas

February 23, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
ALBERT DEWAYNE BANKS, et al., Defendants

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[Copyrighted Material Omitted]

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For Albert Dewayne Banks, Defendant: Thomas D. Haney, LEAD ATTORNEY, Stevens & Brand, LLP-Topeka, Topeka, KS.

For Steven James Clark, Defendant: Gary D. Stone, LEAD ATTORNEY, New Brotherhood Bank Building, Kansas City, KS.

For Charles Foster, Defendant: Thomas R. Telthorst, LEAD ATTORNEY, Kansas City, KS.

For Patricia Bridget Foy, Defendant: Thomas H. Johnson, LEAD ATTORNEY, Petefish, Immel, Heeb & Hird, LLP, Lawrence, KS.

For Johnny Lee Ivory, III, Defendant: Wendel S. Toth, LEAD ATTORNEY, Garretson, Webb & Toth, LLC, Olathe, KS.

For Martye Madabuti Madkins, III, Defendant: James G. Chappas, Jr., LEAD ATTORNEY, Topeka, KS.

For Zachary Carlyle Patmon, Defendant: Forrest A. Lowry, LEAD ATTORNEY, Bezek, Lowry & Hendrix, Ottawa, KS.

For Otis Dean Ponds, Defendant: Eric A. Hartenstein, LEAD ATTORNEY, Wichita, KS.

For Barbara Michelle Shaw, also known as Barbara Michelle Johnson, Defendant: Michael M. Jackson, LEAD ATTORNEY, Topeka, KS.

For Anthony Carlyle Thompson, Defendant: Mark L. Bennett, Jr., LEAD ATTORNEY, Bennett and Hendrix, LLC, Topeka, KS.

For Whitnie Ann Livingston, Defendant: Jason P. Hoffman, LEAD ATTORNEY, Hoffman & Hoffman, Topeka, KS.

For Walter Bernard Banks, also known as Walter Bernard Taylor, Defendant: Kevin W. Babbit, LEAD ATTORNEY, Fagan Emert & Davis LLC, Lawrence, KS.

For USA, Plaintiff: Anthony W. Mattivi, LEAD ATTORNEY, Jared S. Maag, Office of United States Attorney - Topeka, Topeka, KS.

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MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge.

Earlier in this case, defendants Johnson, Taylor, Thompson, Ponds and Madkins filed motions arguing that the Court should suppress wiretap evidence collected by Kansas Bureau of Investigation (" KBI" ) agents during the investigation that lead to this prosecution (Docs. 346, 349, 356, 362, 377). Among other arguments, their motions asserted that Kansas' wiretap statute, K.S.A. § 22-2514 et seq, prohibits agents from intercepting communications outside of the territorial jurisdiction of the judge who authorized the wiretaps, in this case, Judge David Platt of Kansas' Eighth Judicial District. The Court agreed.

In its ruling following last August's suppression hearing, the Court articulated the legal standard that governs this aspect of defendants' motions. At the parties' joint request, the Court memorialized this preliminary ruling in a written order (Doc. 517). Relying upon the Kansas Court of Appeal's application of Kansas' wiretap statute in Kansas v. Adams, 2 Kan.App.2d 135, 576 P.2d 242 (Kan. Ct.App. 1978), the Court identified three ways that a wiretap could fall within Judge Platt's territorial jurisdiction: either the monitoring station (the location where law enforcement first hears the intercepted communications), the intercepting device, or the tapped phones, must have been physically present within Kansas' Eighth Judicial District at the time a call was intercepted. In this case, the first option was nullified because the monitoring station was located at the KBI headquarters in Shawnee County, Kansas--outside the Eighth Judicial District. The government has never invoked the second option--the location of the intercepting device. This left the third alternative--the location of the tapped phone--as the only possible basis for the government to justify intercepting calls under Judge Platt's wiretap order. Accordingly, this Court ordered that it would suppress the wiretap evidence, except for those calls the government could rescue under Adams ' third jurisdictional alternative, i.e., unless the government could prove that the tapped phones were physically located within Kansas' Eighth Judicial District at the time of interception. The Court continued the trial and its accompanying deadlines to permit the government to marshal evidence necessary to respond to defendants' suppression motion and for defendants to present additional argument.

The Court granted the government's request to subpoena cell-site location information from Sprint, Verizon, and T-Mobile under 18 U.S.C. § 2703(d) (Doc. 417). Cell-site data includes " records of calls made by the providers' customer . . . and reveals which cell tower carried the call to or from the customer." United States v. Davis, 754 F.3d 1205, 1211 (11th Cir. 2014). " The cell tower in use will normally be the cell tower closest to the customer . . . . It is therefore possible to extrapolate the location of the cell phone user at the time and date reflected in the call record." Id. Having obtained the cell-site data, the government now seeks to discharge its burden to establish the location of the intercepted phone calls by showing that some phone calls " pinged" ( i.e., connected to) certain towers in and around the Junction City area. The government theorizes that, if a cell phone pinged one of these towers, a very high likelihood exists that the cell phone was physically located within the Eighth Judicial District when it connected to the tower.

Defendants have filed two joint motions challenging the admissibility of the cell-site evidence. Defendants' first motion argues the Court must exclude the cell-site data because it constitutes inadmissible hearsay

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and violates the Confrontation Clause of the Sixth Amendment to the United States Constitution (Doc. 543). Defendants' second motion argues the government's method to establish a cell phone's location using cell-site data fails to meet Federal Rule of Evidence 702's criteria governing the admissibility of expert testimony (Doc. 544). The government filed a response to each motion (Docs. 552, 554), and defendants filed joint replies (Docs. 560, 561). On February 9 and 10, 2015, the Court conducted a hearing on defendants' joint motions. On February 16, defendants filed a motion asking the Court to reconsider the legal standard it articulated in Doc. 517. That motion argues that the location where law enforcement first heard the intercepted phone calls is the only relevant " location of interception" for purposes of a judge's wiretap authority.

The Court addresses the arguments contained in defendants' motions and the other challenges to the reliability of cell-site data defendants raised at the hearing, below. After carefully considering the testimony, evidence, and arguments presented by the parties, the Court concludes cell-data that establish that a phone connected to certain towers in the Junction City area are sufficient to prove, by a preponderance of the evidence, that the phone was inside Kansas' Eighth Judicial district at the time of the call.

Analysis

A. Defendants' Motion for Reconsideration

One week after the Court conducted a hearing on these motions, defendants filed a Motion for Reconsideration (Doc. 574). It asked the Court to reconsider its conclusion that a Kansas judge has jurisdiction to authorize wire interceptions if either the monitoring station, the interception device, or the tapped phone is located within that judge's judicial district. The Court reached this conclusion by reasoning that a Kansas judge may authorize interception of wire communication in his judicial district, and these locations are the places where interception occurs. Defendants contest the second part of the Court's reasoning, arguing that Kansas law holds that " interception" occurs only where law enforcement first hears the call, i.e., the monitoring room. This is a critical point. If defendants' interpretation is correct, the Court must suppress all of the wiretap evidence because, in this case, the monitoring station was located at the KBI headquarters in Shawnee County, outside of Judge Platt's judicial district.

Defendants' argument relies primarily on the Kansas Supreme Court's decision in Kansas v. Gibson, 255 Kan. 474, 874 P.2d 1122 (Kan. 1994). In that case, the Kansas Supreme Court considered whether a Kansas judge sitting in Riley County (part of the Twenty-First Judicial District) had the power to authorize the use of a pen register that included a " slave unit" physically located in Pottawatomie County (part of the Second Judicial District). Id. at 1123. The slave unit is a device that connects the target's phone line to law enforcement's phone line, thereby allowing law enforcement to operate the pen register from a remote location. Id. at 1129. Without a slave unit, the pen register would need to be stationed at an " appearance point" (the green boxes visible at intervals along a road " where buried [telephone] cable is brought above ground for accessibility" ). Id. The slave unit routes the electronic signal from the target line to the place law enforcement has set up the pen register. Id. The pen register then records and decodes the phone numbers associated with calls placed to and from the target line. Id. at 1122-29.

In Gibson, investigators set up the pen register at a location inside the Twenty-First Judicial District. Id. at 1122. The

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trial court concluded that the slave unit was an indispensable component of the pen register system, and the issuing judge thus lacked jurisdiction to authorize its installation outside of his judicial district. Id. at 1130. The Kansas Supreme Court reversed, holding (1) that the slave unit was not an essential component of the pen register, and (2) the judge who authorized the pen register had jurisdiction to do so because the call data was routed, recorded, and decoded within his judicial district. Id. at 1131-32. In other words, the judge had jurisdiction to authorize the pen register because the actual data collection took place within his judicial district.

In reaching its conclusion, the Supreme Court drew comparisons to case law addressing the territorial limitations on a judge's jurisdiction to authorize wiretaps. Id. at 1126, 1131 (noting that although " [t]he scheme described in the wiretap provisions is more elaborate," a " similar analysis based on the monitoring location seems appropriate in the present pen register case." ). Defendants contend that Gibson, in comparing the law governing these two investigative techniques, " implicitly rejected" the notion that interception can occur at more than one place. Had it not, defendants assert, the Kansas Supreme Court would not have devoted several pages to determining whether interception occurred at the slave unit.

The Court disagrees with defendants' interpretation of Gibson. First, different statutory schemes govern wiretap and pen register authorizations. For pen registers, the event that must occur within the authorizing judge's jurisdiction is the " installation and use" of the pen register. K.S.A. § 22-2527(1). In contrast, for wiretaps, " interception" must take place within the authorizing judge's jurisdiction. Id. at § 22-2516(3). Whatever Gibson decided about where the " installation and use" of a pen register occurs under § 22-2527(1), it did not actually decide where " interception" occurs under § 22-2516(3). Thus, as an initial matter, the Court concludes that Gibson's actual holding does not govern the wiretap question now before it.

To their credit, defendants acknowledge this. Nevertheless, they assert, Gibson implies strongly that its analysis should also govern wiretap cases. Defendants are correct that Gibson relied on the logic of wiretap cases to conclude that the location of the pen register device determines authorizing judge's jurisdiction. But the Court does not interpret Gibson to suggest that, in the wiretap context, the location of the monitoring room is the only relevant jurisdictional fact. Even if Gibson held that the monitoring room is the only jurisdictionally relevant location for purposes of pen registers (an arguable interpretation), it does not follow that such a limitation necessarily applies to wiretaps. This is evident from United States v. Burford, which Gibson cites with approval. 755 F.Supp. 607, 610 (S.D.N.Y. 1991) (discussed in Gibson, 874 P.2d at 1128-29). In Burford, a federal district court concluded that a New York judge had jurisdiction to authorize pen registers linked to phones in Maryland because the pen registers themselves were " installed and used" at the DEA headquarters in downtown Manhattan. Id. at 611. But Burford's holding about the jurisdictionally relevant location with respect to pen registers did not preclude it from also concluding that, in the context of wiretaps, " [j]urisdiction vests either in the location where the conversations are actually heard or where the mechanical device is inserted." Id. (emphasis added).

Second, neither Gibson, nor the cases it cites, provide unequivocal support for defendants' argument. In this case, some of the phones were located within Judge Platt's judicial district, but the monitoring

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room was not. In Gibson, and the wiretap cases it cites, the monitoring location was within the issuing judge's jurisdiction, but the tapped phones, or other equipment, were not. See id. at 1123; Burford, 755 F.Supp. at 610 (S.D.N.Y. 1991) (monitoring station was located within the judge's jurisdiction, but some of tapped phones were located outside of it); United States v. Rodriguez, 734 F.Supp. 116, 120 (S.D.N.Y. 1990) aff ' d, 968 F.2d 130 (2d Cir. 1992) (same); Evans v. Georgia, 252 Ga. 312, 314 S.E.2d 421, 424 (Ga. 1984) (same). In this sense, the facts presented in those cases are the converse of the facts here. Each of these cases concludes what this Court already has acknowledged--if the monitoring station is located within a judge's jurisdiction, then that judge may authorize wire intercepts, even for phones located outside the judge's district. To its surprise, the Court has been unable to locate any written decision addressing the situation presented here--the converse of Gibson, Burford, Rodriguez, and Evans. As a result, none of these cases resolves squarely whether a judge may authorize interception of phones located in his district even though the monitoring room is located outside of it. The Court is therefore left with the task of deciphering whether, as defendants assert, these cases imply such a limitation.

The cases suggest conflicting answers to this question. All agree that a judge may authorize wiretaps if his jurisdiction extends to the location law enforcement monitors the calls. But the cases differ on the question whether the location of the tapped phone, the location of the intercepting device, or both also suffice as a basis for intercepting a call within a given judge's jurisdiction.

In Evans, the Georgia Supreme Court interpreted " interception" under the federal Title III statute, 18 U.S.C. § 2510 et seq (the Kansas statute defines this term identically), to occur where law enforcement first hears the intercepted communications, see 314 S.E.2d at 425-26, but interpreted its state wiretap statute to confer jurisdiction to the district where the intercepting device is placed. Id. at 426-27. As the Court discussed, Burford interpreted Title III to allow both alternatives. 755 F.Supp. at 611 (" Jurisdiction vests either in the location where the conversations are actually heard or where the mechanical device is inserted." ). The Tenth Circuit has cited Burford's interpretation of Title III with approval, but it declined to hold explicitly that the location of " interception" also includes the location of the tapped phone. United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994) (citing Burford, but also noting " [b]ecause it is unnecessary to the disposition of this case, we do not address whether the location of an 'interception' also includes the location of the target telephone." ). The district court's language in Rodriguez appears to support the notion that interception under Title III occurs only where the calls are overheard and monitored. United States v. Rodriguez, 734 F.Supp. 116, 121 (S.D.N.Y. 1990) aff ' d, 968 F.2d 130 (2d Cir. 1992) (" It is the capacity of the wiretap to hear and to disclose the contents . . . of the communication which brought it under Title III, and which supports the logic of recognizing the jurisdiction of the court at the place where the wiretap is overheard and monitored." (citation omitted)). Yet when the Second Circuit affirmed the district court's order in Rodriguez, it recognized that interception also occurs at the location of the tapped phone. United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992) (" [F]or purposes of § 2518(3)'s jurisdictional requirement, a communication is intercepted not only where the tapped telephone is located, but also where the contents of the

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redirected communication are first to be heard." (emphasis added)). In sum, many of the cases cited by Gibson favor recognizing the principle that interception also occurs where the tapped phone is located. At a minimum, none foreclose this interpretation explicitly.

The Court, therefore, returns to Kansas v. Adams, the only case to address squarely the jurisdictional limits on judge's wiretap authority under Kansas state law. 2 Kan.App.2d ...


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