United States v. Thompson

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This case is before the court on remand from the United States Court of Appeals for the Tenth Circuit. Before the Tenth Circuit, defendant Anthony Carlyle Thompson argued that one or more of his convictions were supported by evidence dependent on cell-site locational information (“CSLI”) gathered under an 18 U.S.C. § 2703(d) order issued by the court. The remand follows the Supreme Court's decision in Carpenter v. United States, 138 S.Ct. 2206 (2018), ruling that the government's seizure of historical CSLI under a § 2703(d) order generally does not satisfy the Fourth Amendment's warrant requirement. On remand, Mr. Thompson essentially abandons his § 2703(d) argument. Mr. Thompson now contends authorities acquired his CSLI in real-time under Kansas wiretap orders predating the § 2703(d) order but that acquisition of the CSLI exceeded the scope of the Kansas wiretap orders. Because Mr. Thompson did not present the argument he raises on remand to the Tenth Circuit despite the availability of the argument on his direct appeal, the mandate rule precludes the court from granting Mr. Thompson relief based on it. The court thus denies Mr. Thompson's request to vacate his conviction and sentence and reimposes final judgment consistent with the Jury Verdict of June 23, 2015, (Doc. 771) and the sentence imposed December 7, 2015 (Doc. 941).

         I. Pre-Carpenter Factual and Procedural Background

         In 2012, Kansas authorities, through a series of controlled purchases, determined Mr. Thompson, in concert with other named defendants, was selling cocaine. To gain evidence about the nature and scope of the drug enterprise, authorities sought a series of state-court wiretap orders under Sections 22-2514, et seq., of the Kansas Statutes Annotated. Doc. 1064 at 22-28. Judge David R. Platt, a District Judge in Kansas's Eighth Judicial District, issued at least nine orders authorizing wiretaps under Kansas law. Docs. 379-1, 379-2, 379-3, 379-5, 379-7, 379-9, 379-10, 379-11, 379-13, 379-15. The orders permitted authorities to tap phones belonging to members of the drug conspiracy, including two phones associated with Mr. Thompson: (1) a T-Mobile line ending in 1783, believed to belong to Mr. Thompson but subscribed to a Jason Roberts; and (2) a prepaid T-Mobile line ending in 2893, believed to belong to Mr. Thompson but with no subscriber information.^[1]

         Under Kansas law, the wiretap orders only permitted authorities to intercept communications within Judge Platt's territorial jurisdiction-i.e., the four counties comprising Kansas's Eighth Judicial District. See Kan. Stat. Ann. § 22-2516(3) (“Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing the interception of wire, oral or electronic communications within the territorial jurisdiction of such judge[.]”). But, authorities tapped cellular communications from a location outside of those four counties without first establishing that the phone subject to a wiretap order was within one of the four counties when tapped. See Doc. 517 at 3. Information from the tapped communications helped authorities understand Mr. Thompson's role in the drug conspiracy.

         A Second Superseding Indictment charged Mr. Thompson with (1) one count of conspiracy to distribute cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A) (Count 1); (2) one count of conspiracy to distribute cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C) (Count 17); (3) eight counts of distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Counts 3, 5, 6, 7, 8, 9, 10, 14); and (4) one count of distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) (Count 13). Doc. 195 at 2-7, 10.

         Mr. Thompson moved to suppress the evidence acquired from the tapped cellular devices, arguing the wiretaps had occurred outside Judge Platt's territorial jurisdiction. Doc. 356 at 22- 30. Ruling on a motion to suppress filed in this case, the court concluded the government could introduce the contents of a tapped cellular communication only if it could establish that a party to a given communication was within the Eighth Judicial District when the tap occurred. Doc. 517 at 4-5. To satisfy this threshold requirement for admission, the government sought § 2703(d) orders to acquire CSLI from the cellular providers about the tapped phones. Doc. 417 at 3-4. Section 2703(d) authorizes a court to issue an order permitting the government to obtain CSLI from a cellular provider if the government “offers specific and articulable facts showing that there are reasonable grounds to believe that the [CSLI records] are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Mr. Thompson challenged the constitutionality of § 2703(d)'s reasonable suspicion threshold for acquiring the CSLI, arguing that the Fourth Amendment applied to the seizure of CSLI and required a probable cause showing. Doc. 425 at 2-3; see Doc. 435 at 1. The government argued § 2703(d) comported with the Constitution, contending the Fourth Amendment did not apply where third-party cellular providers maintained the CSLI. Doc. 429. The government neither argued in the alternative that its evidence satisfied the Fourth Amendment's probable cause threshold nor sought a warrant. See id.

         The court concluded that seizing CSLI from a cellular provider did not involve a search of a defendant under the Fourth Amendment because the defendant already had revealed his CSLI to the cellular provider. Doc. 440-1 at 6-8 (citing In re United States Application for Historical Cell Site Data, 724 F.3d 600 (5th Cir. 2013)). In the alternative, the court sua sponte considered whether the government had advanced sufficient evidence and papers to secure a warrant for the CSLI. Id. at 11. The court concluded: (1) “By establishing that the phone calls are evidence of crimes, the government has also established probable cause for the related CSLI because such information reveals the defendants' location at the time of each call”; and (2) the case agent's affidavits in the applications for the § 2703(d) orders satisfied the Fourth Amendment's “oath or affirmation requirement.” Id.

         The court thus issued § 2703(d) orders permitting the government to acquire CSLI from several cellular providers, including T-Mobile. Docs. 450-52. T-Mobile responded to the § 2703(d) order, indicating that it no longer possessed CSLI for phone numbers ending in 1783 and 2893. See Doc. 1014 at 9 (Transcript of Status Conference where government discusses results of serving § 2703(d) orders). But, the government learned that it had acquired, in realtime, the CSLI for the phones associated with numbers ending in 1783 and 2893 when authorities had executed the wiretaps. See Id. And, the government disclosed this fact to Mr. Thompson during the September 30, 2014, status conference and during a hearing on defendants' motion to suppress CSLI evidence acquired through § 2703(d) orders. See id.; see also Doc. 1016 at 28-31 (“Q. Okay. And then T-Mobile wasn't able to send you call cell site location information, but you had been getting it during the wire, correct? A. Yes.”). But, Mr. Thompson did not argue to the court that authorities had exceeded the scope of the Kansas wiretap orders issued by Judge Platt when they acquired CSLI in real-time from T-Mobile.

         At trial, the government admitted 31 cellular communications to which Mr. Thompson was a party. See Doc. 1303-1 at 1-2 (summary of phone calls admitted during trial). A jury convicted Mr. Thompson on Counts 1, 3, 5-10, and 13-14. See Doc. 771 (jury verdict for Mr. Thompson). The court sentenced Mr. Thompson to 360 months' imprisonment on each count, with the sentences running concurrently. Doc. 941 at 3.

         On appeal, Mr. Thompson challenged the constitutionality of § 2703(d) and the use of CSLI data to establish the particular tapped cellular communications that occurred while a tapped phone was located within the four counties comprising Kansas's Eighth Judicial District. United States v. Thompson, 866 F.3d 1149, 1152 (10th Cir. 2017), vacated, 138 S.Ct. 2706 (2018); see also Brief of Appellant at 34, United States v. Thompson, No. 15-3313 (10th Cir. Oct. 7, 2016) (phrasing argument as “[w]ithout suggesting that § 2703(d) is otherwise unconstitutional, it is clear that as to CSLI it is unconstitutional due to the privacy implications”). But, the Tenth Circuit did not recognize that Mr. Thompson had raised the argument that authorities exceeded the scope of the Kansas wiretap orders when they seized his CSLI in realtime. See Id. (not listing this argument as one raised by Mr. Thompson). And, during the May 21, 2019, remand hearing, Mr. Thompson, when questioned on the matter, affirmatively conceded that he did not argue to the Tenth Circuit that authorities had exceeded the scope of the Kansas wiretap orders by seizing his CSLI.

         The Tenth Circuit, seemingly not advised that Mr. Thompson's CSLI was seized under the authority of the Kansas wiretap orders, proceeded to analyze whether § 2703(d) was constitutional. See Id. at 1153 (discussing acquisition of Mr. Thompson's CSLI in terms of § 2703(d) order without mentioning Kansas wiretap orders); see also Id. at 1154-60 (analyzing constitutionality of § 2703(d) but not discussing constitutionality of seizure of CSLI under Kan. Stat. Ann. §§ 22-2514, et seq.). The Tenth Circuit affirmed Mr. Thompson's convictions, concluding, on the CSLI issue, that “the district court did not err in granting the government's application for orders requesting historical CSLI under § 2703(d) or in admitting some of that CSLI at a pretrial proceeding.” Id. at 1160; see also Id. at 1164 (affirming conviction and sentence). Mr. Thompson filed a petition for a writ of certiorari. Doc. 1183. While Mr. Thompson's petition for a writ of certiorari was pending, the Supreme Court decided Carpenter, a case addressing the constitutionality of § 2703(d) orders for CSLI.

         II. Carpenter Decision

         In Carpenter, the authorities had acquired § 2703(d) orders for CSLI for several suspects in a theft ring. Carpenter, 138 S.Ct. at 2212. Over Mr. Carpenter's motion to suppress, the government introduced the CSLI at trial to place him at or near the scene of several thefts. Id. at 2212-13. A jury convicted Mr. Carpenter. Id. at 2213. On appeal, the United States Court of Appeals for the Sixth Circuit rejected Mr. Carpenter's challenge to § 2703(d), concluding CSLI was not subject to Fourth ...