United States v. Brooks

UNITED STATES OF AMERICA v. FENDI BROOKS, Appellant

No. 19-3562

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted: December 8, 2020

December 29, 2020

NOT PRECEDENTIAL

On Appeal from the District Court of the Virgin Islands

(D.C. No. 3-18-cr-00042-002)

District Judge: Honorable Curtis V. Gomez

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 8, 2020

Before: SMITH, Chief Judge, CHAGARES and MATEY, Circuit Judges

OPINION^*

CHAGARES, Circuit Judge.

Fendi Brooks pled guilty to one count of conspiracy to possess with intent to distribute a controlled substance. The District Court sentenced her to seventy-seven months of imprisonment. Brooks now appeals her judgment of conviction. For the following reasons, we will affirm.

I.

We write solely for the parties' benefit, so our summary of the facts is brief. In September 2018, Brooks and her co-defendant, Ngoc Yen Nguyen, travelled together on a Delta Air Lines, Inc. ("Delta") flight from the Virgin Islands to Atlanta, Georgia. Upon arriving in Georgia, Brooks and Nguyen presented themselves to a U.S. Customs and Border Protection ("CBP") officer to pay duties on alcohol they had purchased in the Virgin Islands. The CBP officer took an x-ray scan of their luggage and discovered thirteen bricks of cocaine.

An Assistant Special Agent in Charge from Homeland Security Investigations ("HSI") — which is part of the Department of Homeland Security ("DHS") — subsequently issued several administrative subpoenas to companies including Delta and Sprint Corporation ("Sprint"). The subpoena issued to Delta (the "Delta Subpoena") requested flight manifests, flight and ticketing information, and the transaction history for Brooks and Nguyen. The subpoena issued to Sprint (the "Sprint Subpoena") requested subscriber information and call information for a specific phone number.

Brooks was charged by criminal information with two counts of controlled substance violations on October 23, 2018. A few weeks later, on November 7, 2018,Attorney General Jefferson B. Sessions resigned from office, and the President named Matthew Whitaker, who had been the Attorney General's Chief of Staff, as the Acting Attorney General.¹ Brooks filed a motion to dismiss the information six days later on the ground that Whitaker's designation violated federal law and the Appointments Clause and thus rendered her prosecution unlawful. Before the District Court decided Brooks's motion to dismiss, the grand jury returned an indictment in December 2018, which added a third controlled substance charge. Brooks filed a motion to suppress evidence obtained under the Delta and Sprint Subpoenas that same day.

The District Court held a hearing on the pending motions on March 7, 2019. Whitaker was no longer the Acting Attorney General by that time. The Government represented that it intended to use only the subscriber information and phone log, not the location data, that it received from Sprint. The District Court concluded that Brooks lacked standing to challenge the subpoenas and denied her motion to suppress. The court also denied Brooks's motion to dismiss without explanation.

Brooks agreed that same day to plead guilty to Count One of the indictment — conspiracy to possess with intent to distribute cocaine. As part of the plea agreement, Brooks reserved the right to appeal the District Court's denials of her motions to suppress and dismiss. The District Court accepted Brooks's guilty plea at the hearing.

The District Court sentenced Brooks to seventy-seven months of imprisonment and five years of supervised release on October 31, 2019. The court, however, did not issue the judgment until February 14, 2020. Brooks filed a notice of appeal on November 1, 2019 — after the District Court's verdict but before the judgment. Brooks's appeal is timely. See United States v. Hashagen, 816 F.2d 899, 901 (3d Cir. 1987) ("[A] notice of appeal filed after verdict but before sentence, although premature, ripens into an appealable order when the judgment of sentence is entered.").

II.²

In this appeal, Brooks contests her conviction based on the District Court's denials of her motion to dismiss and motion to suppress. We will address each in turn.

A.

Brooks argues that her conviction and sentence must be vacated because Whitaker's appointment as Acting Attorney General violated federal law and the Appointments Clause. In other words, Brooks contends that Whitaker's appointment was improper and thus rendered invalid every sentence imposed on someone whose prosecution took place at least partially during Whitaker's tenure as Acting Attorney General, even if much of the prosecution took place and the actual sentence was imposedafter Whitaker was no longer Acting Attorney General. Brooks also reasons that she does not need to show prejudice or harm because the purported Appointments Clause violation is "structural in nature." Brooks Opening Br. 5.

Many courts have held that the legality of Whitaker's appointment as Acting Attorney General does not affect the validity of criminal prosecutions or sentences.³ The United States Court of Appeals for the Fourth Circuit has gone further and concluded that Whitaker's appointment was constitutional. United States v. Smith, 962 F.3d 755, 763 (4th Cir. 2020). Despite reaching this conclusion, the court also noted that "even if [the defendant's] constitutional argument were right, he still would not be entitled to the relief he seeks, for [the defendant] has failed to show in any discernible fashion how Whitaker's designation affected the validity of [his] proceeding or prejudiced him in any way." Id. We agree with the alternate holding of our sister Court of Appeals.

Even assuming that Whitaker's appointment was invalid — which is a question we need not reach — Brooks "must show that Whitaker's tenure somehow affected [her] proceeding and prejudiced [her] in some way. Yet [Brooks] can do no such thing." See id. at 766. First, the criminal information Brooks sought to dismiss was filed weeks before Whitaker was appointed as Acting Attorney General. Second, Brooks wassubsequently charged pursuant to an indictment issued by a properly constituted grand jury. See Costello v. United States, 350 U.S. 359, 363 (1956) ("An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits."). Third, to the extent that Brooks argues that her conviction should be vacated merely because Whitaker's appointment overlapped with part of her prosecution, Brooks was prosecuted by the United States Attorney for the District of the Virgin Islands who was independently empowered by statute to prosecute cases and duly appointed by a district court. See 28 U.S.C. § 547(1) (providing that each United States attorney shall "prosecute for all offenses against the United States"); see also 28 U.S.C. § 546(d) ("If an appointment expires . . . the district court for such district may appoint a United States attorney to serve until the vacancy is filled."). Because Brooks has failed to show how Whitaker's appointment affected her, we hold that the District Court did not err in denying Brooks's motion to dismiss.

B.

We next consider the District Court's denial of Brooks's motion to suppress. Brooks argues that DHS did not have the authority to issue the Delta and Sprint Subpoenas and that the information the Government received from Sprint should be suppressed because the Government failed to obtain a warrant. The Delta Subpoena was issued under 8 U.S.C. § 1225(d),⁴ which specifies that the "Attorney General and anyimmigration officer shall have the power" to issue subpoenas. 8 U.S.C. § 1225(d)(4)(A). The Sprint Subpoena was issued under 21 U.S.C. § 967, which provides that "the Secretary of the Treasury may . . . require the production of records . . . relevant or material to the investigation." With respect to the information it received pursuant to the Sprint Subpoena, the Government represented at the suppression hearing that it would only use the subscriber information and telephone log at trial, not the location information.

Brooks does not have Fourth Amendment standing to challenge the subpoenas. Defendants "must have standing to invoke the Fourth Amendment's exclusionary rule." United States v. Correa, 653 F.3d 187, 190 (3d Cir. 2011). Whether defendants have standing depends on whether they had a reasonable expectation of privacy in the information the Government sought to use. See United States v. Cortez-Dutrieville, 743 F.3d 881, 885 (3d Cir. 2014). The "Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." United States v. Miller, 425 U.S. 435, 443 (1976); see also Carpenter v. United States, 138 S. Ct.2206, 2222 (2018) ("We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.").

We have previously explained that there is no reasonable expectation of privacy in subscriber information voluntarily conveyed to third parties. See United States v. Christie, 624 F.3d 558, 573-74 (3d Cir. 2010) (discussing IP addresses). We similarly agree with our sister Courts of Appeals that there is no reasonable expectation of privacy in telephone subscriber information and records or flight and ticketing information. See Johnson v. Duxbury, 931 F.3d 102, 108 (1st Cir. 2019) (concluding that "a phone subscriber has no reasonable expectation of privacy in the phone service provider's records of the numbers that the subscriber has dialed and from which the subscriber has received calls"); United States v. Wheelock, 772 F.3d 825, 828-29 (8th Cir. 2014) (discussing...