NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 22-1172 ____________

UNITED STATES OF AMERICA

v.

ANTHONY QUAMAINE BROWN, also known as BX,

Appellant ___________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-20-cr-00108-006) District Judge: Honorable Malachy E. Mannion ____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 13, 2022 ____________ BEFORE: RESTREPO, McKEE, and SMITH, Circuit Judges (Filed: May 1, 2023) ____________

OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RESTREPO, Circuit Judge

Anthony Quamaine Brown appeals the denial of his motion to suppress wiretap

evidence without an evidentiary hearing. Brown avers the government’s affidavit

establishes it unlawfully intercepted cell phone communications without the District

Court’s authorization. Because we find the ambiguity in the record sufficient to create a

dispute of fact regarding the wiretap’s legality, we will remand to the District Court for

an evidentiary hearing on the suppression motion.

I. Factual and Procedural History

On May 18, 2021, Brown was charged with one count of conspiracy to distribute

and possess with intent to distribute heroin and fentanyl in violation of

.

He filed a motion to suppress the wire and electronic communications he made to co-

conspirator Robert Thompson’s cell phone, claiming they were intercepted in violation of

the Federal Wiretap Statute, Title

and the Fourth Amendment.

To support this claim, Brown cited the following facts of record: on April 7, 2020,

the District Court authorized a thirty-day wiretap for wire and electronic communications

on Thompson’s cell phone. The wiretap was authorized to begin on April 7, 2020 and

was set to terminate on May 6, 2020. 1 On June 1, 2020, FBI Agent Shawn Yellen signed

a master affidavit of probable cause in support of a search warrant. In the affidavit,

Agent Yellen stated the District Court authorized the wiretap on April 7, 2020, but that

1 The Court later granted an extension on the wiretap, moving the termination date back to June 4, 2020.

2 the “[i]nterception of wire and electronic communications over THOMPSON’s ‘Target

Phone 1’ commenced on March 28, 2020.” App. at 202 (emphasis added). The master

affidavit referenced calls and texts between Brown and Thompson starting on April 8th

and continuing through April 11th. It also referenced an April 4, 2020, interview with a

cooperating witness where the witness disclosed knowledge of an “Anthony,” which

Agent Yellen believed referred to Brown based on his “training, experience and

knowledge of this investigation.” App. at 241. 2

Prior to pleading guilty, Brown filed a motion to suppress evidence obtained

through the wiretap of Thompson’s phone. He argued that the FBI’s master affidavit

establishes the government began intercepting wire communications eleven days before

the April 7, 2020 start date on the District Court’s authorizing order. Brown claimed the

record supported his allegation because the FBI knew who he was before an April 4,

2020 interview with a cooperating witness. He stated that the government failed to

explain where it learned of his name before the April 4th interview, if not from the

unauthorized interception of Thompson’s cellphone. Brown argued the uncertainty as to

when the government began to intercept his communications warranted an evidentiary

hearing.

2 According to Brown’s presentence report (PSR), FBI agents executed a search warrant on June 2, 2022 for a trailer in North Carolina rented by Brown’s girlfriend, Amanda McPhillips. Inside, agents found and seized approximately 87 grams of fentanyl and thousands of empty glassine bags inside a box addressed to Brown. PSR ¶ 15.

3 The government acknowledged the master affidavit provided a wiretap start date of

March 28, 2020, but argued the date “was an obvious typographical error.” App. at 15.

It pointed out that the preceding sentence in the same paragraph of the alleged error

correctly cited the date on the Court’s order — April 7, 2020. To support the argument

that the interceptions did not start before April 7th, the government claimed that starting

the wiretap without the District Court’s order would have been “physically and legally

impossible” because the cellular service provider—in this instance AT&T—could not

otherwise lawfully assist the FBI in intercepting and storing the communications. 3

The District Court agreed with the government and denied the motion to suppress,

finding the March 28, 2020 commencement date in the master affidavit a “technical

defect” that did not warrant suppression. App. at 25. In so finding, the Court noted there

was “simply no evidence of any agreement between the agents and AT&T to unlawfully

begin the wiretap” without an authorizing order. App. at 16-17.

After the denial of his suppression motion, Brown entered a conditional guilty plea

to conspiracy to distribute and possess with intent to distribute at least 1 but less than 3

kilograms of heroin and at least 40 but less than 160 grams of fentanyl. His conditional

plea reserved his right to appeal only the denial of his motion to suppress. He was

3 In its response to Brown’s motion, the government attached a photograph of a chart on a white board from the wire interception room of the FBI office. The chart indicates the start date for the Thompson “TP1” is 4/21. Case: 3:20-cr-00108-MEM Doc. 407, Exhibit A (filed 5/24/21). 4 sentenced to 180 months’ imprisonment on January 21, 2021. Brown timely appealed to

this Court. 4

II. Analysis

The District Court denied Brown’s motion to suppress without an evidentiary

hearing, finding that Brown failed to produce evidence to support his claim that the

government began wiretapping Thompson’s cell phone before the authorized date. While

we acknowledge the speculative nature of Brown’s claim, we recognize the District

Court’s finding that the affidavit’s start date was a “technical defect” also rests on

speculation. Given the uncertainty as to the wiretap’s inception and the absence of

evidence resolving that uncertainty, we conclude an evidentiary hearing is warranted. 5

Under

(10)(a)(iii), a defendant can “move to suppress the

contents of any wire or oral communication intercepted” if “the interception was not

made in conformity with the order of authorization or approval.” 6 Adherence to the

4 Brown also appeals the denial of his motion to compel discovery. We conclude that he waived the right to appeal this claim when he entered his conditional guilty plea. In his written plea agreement, Brown only reserved the right to appeal the denial of his motion to suppress. “[A] defendant who enters a conditional plea can only appeal issues that have been preserved for review.” United States v. Bentz,

(3d Cir. 1994) (citing Fed. R. Crim. P. 11(a)(2)); United States v. Markling,

(7th Cir. 1993) (requiring that a conditional plea must “precisely identify which pretrial issues the defendant wishes to preserve for review”). 5 The District Court had subject matter jurisdiction over this criminal case pursuant to

. This Court has appellate jurisdiction pursuant to

and

(a). 6 When a defendant raises a claim of illegal surveillance, the government is required to “affirm or deny the occurrence of the alleged unlawful act.”

(a)(1). 5 regulations in § 2518(10)(a)(iii) insures, inter alia, effective judicial supervision of the

interception of wire communications. If electronic surveillance is conducted without a

court’s authorization, the search is unlawful and subject to suppression. United States v.

Cafero,

, 497–98 (3d Cir. 1973). Judicial authorization and approval, along

with the other protective procedures required by Title III, The Omnibus Crime Control

and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, ensures that searches involving

the interception of wire communications are conducted with “the reasonableness which

the Fourth Amendment requires.” Cafero,

(citing Berger v. New York,

(1967)).

We review a district court’s decision whether to conduct an evidentiary hearing on

a motion to suppress for an abuse of discretion. United States v. Hines,

(3d Cir. 2010). “A motion to suppress requires an evidentiary hearing only if the

motion is sufficiently specific, non-conjectural, and detailed to enable the court to

conclude that (1) the defendant has presented a colorable constitutional claim, and (2)

there are disputed issues of material fact that will affect the outcome of the motion to

suppress.”

. A defendant raises an issue of material fact “by submitting

evidence that, if true, would tend to establish an essential element of his or her claim that

evidence was obtained unconstitutionally.”

at 106 (citing United States v. Voigt,

(3d Cir. 1996)). In the wiretapping context, a hearing may be warranted

Here, the government filed a memorandum of law in response to Brown’s motion to suppress. 6 in circumstances where the petitioner presents “sufficient indica of illegal surveillance.”

In re Horn,

(3d Cir. 1972).

We conclude Brown has presented enough indicia of illegal surveillance to create

a material dispute of fact. Given that he has established the basis for his motion to

suppress, we remand for a hearing to determine whether the government’s surveillance

was lawful. While the government may be correct that initiating a wiretap without an

authorizing order is exceedingly improbable, we note it did not provide concrete evidence

establishing that the March 28, 2020 date was an “obvious typographical error,” such as

an affidavit from Agent Yellen or the cell phone provider. Moreover, although the

master affidavit does not reference any evidence discovered by wiretap prior to April 7,

2020, this does not disprove Brown’s theory that the government learned of his identity

through unauthorized surveillance before the April 4, 2020 interview of the cooperating

witness. 7 While Brown’s theory arising from the disputed fact is unproven, so is the

government’s position that the start date given in the affidavit is an “obvious

typographical error.” Government’s Brief, 16.

The government relies on Doe v. Groody,

(3d Cir. 2004), to

support its position that the allegedly incorrect inception date in the master affidavit did

not warrant suppression. Groody cites decisions where “an ambiguity or clerical error” in

7 Brown stated in his reply brief in support of his motion to suppress that there was nothing in the government’s pre-trial discovery indicating that he was part of the FBI’s investigation prior to April 4, 2020, the date of the interview with the cooperating witness. 7 a warrant can be resolved “with reference to the affidavit.”

That is not the case here,

where the alleged clerical error is in an affidavit filed after the wiretap was initiated, and

the alleged error indicates the scope of the wiretap was broader than permitted by the

District Court’s order. The question remains whether the electronic surveillance was

conducted in the timeframe described in the affidavit or in accordance with the

authorizing order.

If the wiretap was conducted in the timeframe stated in the affidavit, it exceeded

the scope of the order and was unlawfully overbroad. Groody, 361 F.3d at 242–43

(holding affidavit cannot lawfully broaden the scope of a narrower warrant because judge

authorizes search as defined by warrant). Hence, an evidentiary hearing is necessary to

determine the actual facts underlying the FBI’s wiretap of Thompson’s cellphone. See

United States v. Traitz,

(1989) (holding courts may look beyond the

face of the authorizing order to the facts “as they actually existed” to determine if there

was compliance with the substantive procedures outlined in § 2518) (citing United States

v. Acon,

(3d Cir. 1975)). 8

8 The government also cites United States v. Mainor,

(3d Cir. 2010) and United States v. Wallace, No. 1:09-cr-0179,

(M.D. Pa. Sept. 30, 2009). These decisions are not controlling, and they also address circumstances where a mistake in a warrant could be rectified by referring to either an affidavit or accompanying memorandum. As we explain above, those are not the circumstance that we address here. 8 III. Conclusion

For the foregoing reasons, we will remand to the District Court for an evidentiary

hearing on the motion to dismiss.

9