United States v. Montgomery

290 F.Supp.3d 396

UNITED STATES of America,

v.Price MONTGOMERY, et al., Defendant.

2:14–cr–205

United States District Court, W.D. Pennsylvania.

Signed January 31, 2018

Gregory J. Nescott, US Govt. Atty., United States Attorney's Office, Pittsburgh, PA, for United States Of America.

Jay J. Finkelstein, Public Defender or Community Defender Appointment, Federal Public Defender's Office, Pittsburgh, PA, for Defendant.

AMENDED ^* OPINION

Mark R. Hornak, United States District JudgeDefendants Price Montgomery, James Perrin, and Charles Cook seek to suppress evidence derived from a state court-authorized wiretap obtained as part of a joint state and federal investigation of heroin distribution. (ECF Nos. 138 and 197 ("Motions").) The Motions assert that the application for the wiretap on Defendant Montgomery's phone, which was executed on April 14, 2014 ("April 14 wiretap"), was not lawfully authorized. Defendant Montgomery's Motion, ECF No. 197, also challenges the wiretap evidence on several other grounds, most of which turn largely on whether the April 14 wiretap application was properly authorized. These Motions come amid a flurry of state criminal prosecutions spurred by the revelations of misconduct on the part of the former Attorney General ("AG") of Pennsylvania, Kathleen Kane ("AG Kane"), during her time in office. The Court held evidentiary hearings on the Motions on June 14, 19, and 20, 2017. The issues were fully briefed, oral argument was held on October 13, 2017, and the matter is ripe for disposition. For the reasons that follow, the Motions are denied.

I. Background

The material facts in this case are generally undisputed.¹ On June 8, 2014, following a drug trafficking investigation stretching back to 2011, Defendants Montgomery and Perrin were arrested after traveling to New Jersey, a trip which law enforcement believed was for the purpose of transporting a shipment of heroin back to Pittsburgh. (Def. Montgomery's Proposed Findings of Fact & Conclusions of Law, ECF No. 359 ("ECF No. 359"), ¶¶ 8–9, 33.) Agents recovered 1,650 bricks of heroin and about sixteen (16) firearms, nearly all of which were loaded, in connection with those arrests. (Id. ¶ 33.) The arrests were precipitated in no small part by information gleaned from the April 14 wiretap of Defendant Montgomery's cell phone sought by the Pennsylvania AG's Office and approved by Pennsylvania Superior Court Judge Mary Jane Bowes. (Id. ¶¶ 19–20.) Defendants seek to suppress the fruits of this wiretap, and all evidence derived from it, on the grounds that the April 14 wiretap application was not properly authorized under Pennsylvania's Wiretap and Electronic Surveillance Control Act, 18 Pa. C.S. §§ 5701 et seq. ("Wiretap Act"). (See Def. Perrin's Mot. to Suppress, ECF No. 138; Def. Montgomery's Mot. to Suppress Wire Intercepts, ECF No. 197.) Specifically, the Wiretap Act requires the application for a wiretap to be signed by the AG, or in the AG's absence, signed by someone the AG has specifically designated in writing. That did not happen in this case. Instead, First Deputy AG Adrian King ("Deputy King") signed the April 14 wiretap application, and he did so without a written designation physically signed by AG Kane.

Here's what happened. In March 2014, the Montgomery investigation was poised to proceed to a wiretap. (ECF No. 359, ¶ 53.) AG Kane, Deputy King, and other state law enforcement officials held weekly senior management meetings, during which the progress of the investigation and the potential need for a wiretap was a central topic of discussion. (Id. ) In early April 2014, the lead agents on the case, Agent Robert Iuzzolino and Detective Matthew Truesdell, began drafting the affidavit in support of a wiretap application for Montgomery's cell phone. (Id. ¶¶ 13, 16.) A meeting was scheduled for April 14, 2014, to execute the wiretap application. (Id. ¶ 58.)

As it turned out, April 14, 2014, was also the day AG Kane traveled to Haiti on a personal trip. (Id. ¶¶ 86–87.) Before AG Kane left the Commonwealth, her executive assistant, Kathy Smith ("Smith"), prepared a "designation letter" for AG Kane to sign, which would have designated Deputy King as the Acting AG during Kane's absence. (Id. ¶ 87.) AG Kane did not sign that letter, but told Smith to keep the unsigned designation letter in her (Smith's) desk. (Id. ¶ 90.) If something came up that required the letter to be signed, Smith was instructed to call AG Kane, and Smith could sign Kane's name if necessary. (Id. ) This admittedly "one off" approach by AG Kane forms the impetus for Defendants' suppression motion.²

The record before the Court reflects that on the evening of April 13, 2014, AG Kane spoke to Deputy King on the phone for about thirteen (13) minutes, during which King took notes of the call. (Def. Perrin's Findings of Fact and Conclusions of Law, ECF No. 360, ¶¶ 265–66.) Among other work matters relating to AG Kane's absence, the Government contends AG Kane and Deputy King discussed the Montgomery wiretap application that would be executed the next day, and Kane confirmed on this call that Deputy King was authorized to sign the application. (Gov't's Proposed Findings of Fact and Conclusions of Law, ECF No. 361 ("ECF No. 361"), ¶¶ 83–90.)

The following morning, during AG Kane's flight to Haiti, Deputy King learned that the designation letter had not been signed. (Id. ¶ 93.) Assuming this to be an administrative oversight, and believing he needed the signed letter to execute the wiretap application, Deputy King directed Smith to sign the designation letter. (Id. ¶ 100; ECF No. 359, ¶ 98.) Smith called AG Kane three (3) or five (5) times over a period of thirty (30) to sixty (60) minutes and left voicemail messages asking Kane to call back, but Smith was unable to reach her. (ECF No. 359, ¶ 99.) David Tyler, the Chief Operating Officer of the AG's Office ("COO Tyler"), also attempted to contact AG Kane, unsuccessfully. (ECF No. 361, ¶ 98.) It is unclear from the record how long Smith waited for AG Kane to return her calls. At any rate, Smith believed AG Kane had given her the authority to sign the designation letter if necessary, and at Deputy King's direction, she signed AG Kane's name on the letter in the early afternoon on April 14, 2014. (ECF No. 359, ¶ 100.)

After the letter had been signed, Deputy King executed the wiretap application that same afternoon.³ (ECF No. 361, ¶ 104.)

About an hour later on Monday, April 14, AG Kane returned Smith's calls. (ECF No. 359, ¶ 107.) Smith informed Kane that she (Smith) had signed the designation letter. (Id. ) AG Kane stated that she wished Smith had spoken to her first, and said that Smith had "made a bad situation worse." (Id. ¶ 108.) Smith offered her resignation, which Kane did not accept. (Id. ¶ 109.) AG Kane did not instruct Smith or anyone else to destroy or otherwise void the designation letter or the signed wiretap application, to otherwise "undo" what had been done, or to stop the process of the application to Judge Bowes. (Id. ¶¶ 110, 117.) Later on April 14 or 15, COO Tyler spoke with AG Kane, who expressed her displeasure that the designation letter had been signed. (ECF No. 361, ¶ 109; Tr. of Suppression Hearing of June 19, 2017, ECF No. 338, at 121.) AG Kane also told COO Tyler that she believed that Deputy King could have signed the wiretap application without a written designation letter.⁴ (ECF No. 361, ¶ 109.)

On April 16, 2014, Superior Court Judge Mary Jane Bowes reviewed and approved the wiretap application.⁵ (ECF No. 359, ¶ 19.) AG Kane returned to the AG's Office on April 22, 2014. She held a senior management meeting that day, during which the Montgomery investigation was specifically discussed. (ECF No. 361, ¶¶ 119, 122.) Thereafter, investigators sought (1) a continuation of the April 14 wiretap, (2) a new wiretap for Defendant Perrin's phone, and (3) a new wiretap for Defendant Montgomery's second phone, the applications for all of which AG Kane executed and a Superior Court Judge approved. (ECF No. 359, ¶¶ 20–32.)

Following their arrests on June 8, 2014, Defendants Montgomery and Perrin were charged in state court with various narcotics and weapons offenses. (ECF No. 361, ¶ 159.) On August 22, 2014, Tina Crawford, a cooperating witness against Defendant Montgomery, was murdered. (Id. ¶ 160.) A federal criminal complaint against Defendants Montgomery and Perrin was filed in this Court on the same date, which included new charges for tampering with a witness by killing a person. (Id. ¶¶ 160–61; see also ECF No. 4.)

The events within the AG's Office giving rise to these Motions first came to light in August 2015, when AG Kane was charged in a state criminal case with various offenses, including perjury, obstruction of justice, and leaking of grand jury information. (ECF No. 361, ¶ 162.) The lead agent on the Montgomery investigation, Agent Iuzzolino, learned that there might be an issue regarding the designation letter for the April 2014 wiretap application from reading the affidavit of probable cause in AG Kane's criminal case. (Id. ) In 2016, Kane was convicted of perjury and leaking grand jury information. (Id. ¶ 164.)

II. Analysis

Although the legal issues before the Court appear complex, at bottom, this case requires the Court to decide the extent to which federal wiretap laws intersect with similar state laws, and, if a violation of an applicable legal standard occurred, whether suppression is required in this case.

In general, federal law controls the admission of evidence in federal criminal cases. See United States v. Williams, 124 F.3d 411, 428 (3d Cir. 1997) (citing United States v. Rickus, 737 F.2d 360, 363 (3d Cir. 1984) ). Federal telephone wiretapping is governed by Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 – 2520 ("Title III"). Title III does not specifically require a written designation of authority for a state wiretap; however, certain provisions...