18‐2243‐cr United States of America v. Jason Marley

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of January, two thousand twenty.

PRESENT: BARRINGTON D. PARKER, DENNY CHIN, JOSEPH F. BIANCO, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x UNITED STATES OF AMERICA, Appellee,

v. 18‐2243‐cr

JASON MARLEY, aka MAURNEY, aka BARBER, Defendant‐Appellant,

ORLANDO HARLEY, aka OLIVER, aka GUNNER, NYKOLI WILLIAMS, aka SHAUNEY, RADIANNA THOMPSON, aka RAIDY, Defendants. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: DAVID ABRAMOWICZ, Assistant United States Attorney (Timothy V. Capozzi, Michael D. Longyear, Won S. Shin, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT‐APPELLANT: MATTHEW BRISSENDEN, Matthew W. Brissenden, P.C., Garden City, New York.

Appeal from the United States District Court for the Southern District of

New York (Caproni, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Jason Marley appeals from a judgment entered July

31, 2018, following a jury trial, convicting him of participating in a narcotics conspiracy,

in violation of

, and using and carrying firearms during a narcotics

conspiracy, in violation of

(c)(1)(A)(i) and (2).

On appeal, Marley argues that the district court erred in denying his

motion to suppress. We assume the partiesʹ familiarity with the underlying facts,

procedural history, and issues on appeal.

I. The Facts

A. The Suppression Hearing

The district court held a suppression hearing on July 20 and 21, 2017,

which established the following facts: In 2014, the Drug Enforcement Agency (the

2 ʺDEAʺ) began a money laundering investigation into Joseph Stern. On February 4,

2015, DEA Special Agent James Enders was reviewing data from a pen register on

Sternʹs cellphone and noticed it had been in contact with a phone number ending in

4484 (the ʺ4484 numberʺ) several times on February 3 and 4, 2015. The pattern of the

contacts between Sternʹs phone and the 4484 number led Enders to believe that Stern

and the 4484 number were involved in a money laundering scheme.

That same day, DEA Special Agent Marlow Luna, who was working with

Enders, called the 4484 number. Luna spoke in Spanish and claimed he was calling on

behalf of ʺJulianʺ ‐‐ a made‐up name. The recipient of the call asked Luna if he was

calling on behalf of ʺFelipe,ʺ to which Luna responded yes. Luna told the recipient that

he ʺhad a hundred to give him.ʺ Appʹx at 302. The recipient responded that he was out

of town and could meet later that week when he returned to New York City. After the

call, an Assistant District Attorney (the ʺADAʺ) applied for a pen register and GPS

tracking order for the 4484 number, submitting an affidavit that, inter alia, summarized

the events relating to Lunaʹs undercover telephone call. Later that day, a state court

judge approved an order authorizing the collection of geolocation information from the

4484 number (the ʺFebruary 2015 Orderʺ).

On February 8, 2015, as a result of the geolocation data collected from the

February 2015 Order, DEA agents identified and stopped a vehicle in which Marley was

a passenger. Marley and the driver were arrested after the agents smelled marijuana.

3 Upon his arrest, agents seized the 4484 phone, a second phone with a 3271 number, and

$20,000 in cash.

B. Additional Evidence

In March and April 2015, the government obtained three judicially

authorized wiretaps on Sternʹs phones (the ʺStern Wiretapsʺ). The affidavits supporting

these wiretaps referenced Marley and included a summary of the events leading up to

the February 2015 Order. The affidavits, however, also contained other facts regarding

Sternʹs activities. The Stern Wiretaps intercepted multiple communications between

Stern and Marley, who was using the 3271 number.

The Stern Wiretaps also led to incriminating communications between

Stern and a Jamaican phone number later revealed to belong to Carlton Powell. The

Jamaican government also obtained wiretaps on the phone numbers associated with

Powell (the ʺPowell Wiretapsʺ). The Powell Wiretaps intercepted communications

between Powell and Marley involving drug trafficking.

From January to April 2016, the government intercepted communications

over several phones used by Marley. On December 30, 2015, DEA agents were

authorized to wiretap the 3271 number and a 9720 number also tied to Marley. This

wiretap and two subsequent wiretaps enabled the government to gather significant

evidence of criminal activity. The wiretaps also led the government to obtain warrants

4 to search five locations in Brooklyn and Queens where the government seized

marijuana, cocaine, and firearms, and arrested several individuals.

II. Proceedings Below

On April 3, 2017, Marley filed his motion to suppress. First, Marley

challenged the February 2015 Order authorizing the collection of geolocation data from

the 4484 phone. Marley argued that the affidavit submitted to obtain the February 2015

Order contained misstatements in violation of Franks v. Delaware,

(1978).

Marley sought to suppress the geolocation data collected pursuant to the February 2015

Order and other categories of evidence that he argued were fruits of the Franks

violation. Second, Marley argued that the two cellphones seized incident to his arrest

on February 8, 2015, were unlawfully searched that night without a warrant in violation

of the Fourth Amendment.

On October 31, 2017, the district court denied Marleyʹs suppression

motion. The district court concluded that paragraph 12 of the affidavit supporting the

February 2015 Order contained several misleading statements exaggerating the

evidence gathered from Lunaʹs undercover call. Nonetheless, the district court

ʺsubstitut[ed] the facts as disclosed in Lunaʹs testimony for the misleading statements in

the affidavit, and supplement[ed] the affidavit with facts that were omitted,ʺ and

concluded that the corrected affidavit would have supported a finding of probable

cause. S. Appʹx at 14. As a result, the district court held that the misstatements were

5 not material and that Marley failed to show a Franks violation. The district court

declined to reach the question of whether the ADA and DEA agents made the

misstatements ʺdeliberately or recklessly.ʺ S. Appʹx at 15. The district court also

concluded that Marleyʹs cellphones were not unlawfully searched the night of his arrest.

On March 19, 2018, a jury found Marley guilty on both counts. On July 31,

2018, the district court sentenced Marley principally to 96 monthsʹ imprisonment on

Count 1 and 60 monthsʹ on Count 2, to be served consecutively. This appeal followed.

STANDARD OF REVIEW

In evaluating a district courtʹs ruling on a motion to suppress, ʺwe review

legal conclusions de novo and findings of fact for clear error.ʺ United States v.

Bershchansky,

(2d Cir. 2015) (internal citation and quotation marks

omitted). We give special deference to the district courtʹs ʺfactual determinations going

to witness credibility.ʺ United States v. Jiau,

(2d Cir. 2013).

DISCUSSION

Marley challenges the seizures resulting from the February 2015 Order

and the purported warrantless search of his cellphones.

I. The February 2015 Order

ʺTo suppress evidence obtained pursuant to an affidavit containing

erroneous information, the defendant must show that: (1) the claimed inaccuracies or

omissions are the result of the affiantʹs deliberate falsehood or reckless disregard for the

6 truth; and (2) the alleged falsehoods or omissions were necessary to the [issuing] judgeʹs

probable cause finding.ʺ United States v. Canfield,

, 717‐18 (2d Cir. 2000)

(quoting United States v. Salameh,

(2d Cir. 1998) (internal quotation

marks omitted)). When an affidavit in support of a wiretap contains inaccurate

information, we remove that information from consideration and review the affidavit de

novo to determine if probable cause still exists. Canfield,

. In assessing

the materiality of the false statements, this Court has instructed that the ʺfirst task is to

correct the affidavit to account for the alleged inaccuracies.ʺ

Under Franks, ʺ[t]he ultimate inquiry on a motion to suppress is not . . .

whether the affidavit contains false allegations or material omissions, but whether after

putting such aside, there remains a residue of independent and lawful information

sufficient to support probable cause.ʺ United States v. Ferguson,

(2d

Cir. 1985). Here, after conducting a Franks hearing, the district concluded that the

affidavit without the inaccuracies and misstatements was still sufficient to establish

probable cause. We agree.

As corrected by the district court, the facts in the affidavit support a

finding of probable cause: Luna was an experienced DEA agent who participated in

numerous drug and money laundering investigations. The 4484 phone was identified

during the money laundering investigation involving Stern. Based on their experience

in such investigations, the DEA agents identified a pattern of calls between Stern and

7 the 4484 phone suggesting money laundering activities. In the undercover phone call,

the recipient of the phone call responded in a way that suggested he implicitly agreed

to meet Luna about the ʺhundredʺ he had ʺto give him.ʺ Appʹx at 302. Viewed in the

totality of the circumstances, these facts are sufficient to support probable cause.

Consequently, even without the inaccuracies and omitted information, the affidavit

would have supported a determination of probable cause.

The district court properly concluded that the remaining portions of the

affidavit were sufficient to support a finding of probable cause.1

II. The Warrantless Search of Marleyʹs Phones

Finally, the district court did not commit clear error when it rejected

Marleyʹs allegation that officers searched his phone without a warrant after his

February 8, 2015 arrest. In his pro se brief, Marley argues that the toll records and

geolocation data ʺshow that DEA agents bypassed the password protected cellphones

and accessed data stored within the phones.ʺ Appellantʹs Pro Se Br. at 3.

The district court ruled, based largely on credibility determinations, that

Marleyʹs allegation was ʺbaseless speculation.ʺ S. Appʹx at 23. In so ruling, the district

court found the agentsʹ testimony credible that they ʺknew of no one at the DEA office

1 The parties disagree as to whether the district court was permitted, in addition to striking inaccurate information, to insert omitted truths. We need not decide the issue, as we conclude the affidavit was sufficient even without the omitted information ‐‐ the pattern of calls between the 4484 number and the third number. 8 the evening of the arrest who had broken through the passwords and searched the

phones, let alone had the training to do so.ʺ S. Appʹx at 23‐24. The district court did not

commit clear error in rejecting Marleyʹs arguments. First, Marley argued that the

geolocation data somehow showed that the agents searched his phone, but this Court

has held that testimony concerning the interpretation of geolocation data requires

expert testimony. See United States v. Natal,

(2d Cir. 2017) (per curiam)

(holding that under the Federal Rules of Evidence, testimony regarding how cell phone

towers operate requires expertise because it is based on scientific, technical, or other

specialized knowledge). Second, even if we credit Marleyʹs interpretation of the

geolocation data, the fact that Marleyʹs phone was turned off and on does not establish

that his phones ‐‐ which were passcode protected ‐‐ were unlawfully searched.

* * *

We have considered Marleyʹs remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

9