U.S. vs. Terry

In October 2007, the defendant,
Ronald Terry, pled guilty to conspiring to distribute
controlled substances and was sentenced to more than
twenty years in prison. In his plea agreement, Terry
reserved the right to appeal adverse decisions on his
pretrial motions, which included the denial of a motion
to suppress evidence. Terry appeals that ruling, and
we now affirm.

I. BACKGROUND
The government began investigating the drug trafficking
activities of Mark Cubie, one of Terry’s co-defendants,
in late 2004. As part of the investigation, authorities
monitored Cubie’s telephone communications using
“pen registers” and “trap and trace devices.” A pen
register records the telephone numbers of outgoing
calls made from the monitored phone, while a trap and
trace device records the telephone numbers of those
calling the phone. Neither method records conversations;
both compile only numerical data.

In early April 2005, investigators noted a significant
change in calling patterns on Cubie’s telephone, which
was registered with a number ending in 1716. This
change indicated that the phone was no longer in
Cubie’s possession. The government subsequently identified
Cubie’s new telephone, which ended in 5638. As
we discuss below in the context of Terry’s suppression
hearing, the way in which this identification occurred is
at the center of the present dispute.

On April 12, 2005, authorities requested authorization
to monitor 5638 with a pen register and a trap and trace
device. On the same day, acting pursuant to 18 U.S.C.
§ 2703(d), they also obtained 5638’s past phone records.
Using data gathered from these sources, investigators
later received permission to place Title III wiretaps on
the telephones of Cubie and Orlandes Nicksion, another
of Terry’s co-defendants. Evidence compiled from
these wiretapped conversations ultimately led to Terry’s
indictment.

On September 18, 2007, a federal grand jury in the
Eastern District of Wisconsin returned a third superseding
indictment against six men, including Terry,
Cubie, and Nicksion.1 Three of the indictment’s nine
counts, all involving various drug and related firearm
offenses, named Terry as a defendant.
Terry filed a motion to suppress on October 20, 2006.
Terry presented two arguments: first, that law enforcement
illegally obtained information that it then used to
identify and monitor Cubie’s 5638 telephone, thereby
tainting any evidence derived therefrom, see 18 U.S.C.
§§ 2515, 2518; and second, that the government knowingly
failed to disclose the illegality of these intercepts,
in violation of Franks v. Delaware, 438 U.S. 154 (1978).2
Both claims hinge on the legality of the government’s
investigation into Cubie’s new telephone number.

A federal magistrate judge held two hearings on Terry’s
motion. At the first, held December 6, 2006, the government
presented a single witness, Dan Thompson, a detective
with the Milwaukee Police Department. Detective
Thompson detailed the process he followed to obtain
court orders for the pen register, trap and trace device,
and § 2703(d) report on 5638. He then discussed
using the information gleaned from these sources to
acquire authorization for the Title III wiretap on that
same phone. According to Thompson, the government
used two primary clues to identify 5638: (1) a confidential
informant’s call to 1716; and (2) a comparison of 1716’s
old calling patterns with the past and current calling
patterns of phones associated with Nicksion and Terry.

First, Thompson stated that on April 4, a confidential
informant, acting at the behest of investigators, telephoned
1716 and asked to speak with Cubie. A female
answered the call and told the informant that the phone
was no longer Cubie’s. According to Thompson, 1716’s
pen register indicated an outgoing call to 5638 “[a] couple
of hours after [the confidential informant’s call].” The
timing of this call from 1716 to 5638 was later questioned
during the second suppression hearing.

Second, Thompson testified that he had analyzed call
information taken from preexisting pen registers and
trap and trace devices on phones belonging to Nicksion
and Terry. Thompson stated that Nicksion and Terry
were placing calls to and receiving calls from 5638 in
frequencies that were similar to their previous calling
patterns with 1716, while calls to and from 1716 had
stopped altogether.

In his motion and at the hearing, Terry sought to discredit
Thompson. Terry targeted one attack at a supplemental
report, prepared by Thompson, that documented
the calling patterns of Cubie’s new 5638 number. Thompson’s
report contained two date/time stamps. The first
stamp, which appears on the report’s first page, was
entered manually by the person creating the report. The
second stamp, located on the report’s second page, was
automatically generated by the computer program.
The manually entered date/time stamp was April 11 at
4:00 p.m. The automatically generated stamp was a day
later, on April 12 at 3:18 p.m.

From this evidence, it was not immediately clear
whether the report was created on April 11 or April 12, a
fact that Terry argued was of significance. According
to Terry, if Thompson created the report on April 11,
it would support Terry’s contention that the government
actually possessed 5638’s call data before receiving
judicial approval to obtain such data on April 12. At the
hearing, Thompson explained the discrepancy as an
inadvertent mistake—he had simply erred and entered
the incorrect date.

On cross-examination, Terry also probed Thompson’s
statements about the use of data collected from Terry’s
telephone to help identify 5638. According to Terry,
authorities did not receive permission to monitor his
phone until May 2005, several weeks after the April 12
court authorization for 5638. Thompson, however, stood
firm in his claim that authorities were legally monitoring
Terry’s call data prior to April 12 and that he had used
such data to identify 5638. At the conclusion of the
hearing, Terry’s counsel requested documentation
proving that the government was lawfully monitoring
Terry’s telephone before April 12.

The government, however, was unable to provide
such proof. Indeed, it discovered that it had not been
monitoring Terry’s phone at that time. Immediately
following the first hearing, the government filed a
motion to reopen, accompanied by an affidavit
from Detective Thompson confessing errors of fact in
his testimony. According to Thompson, he testified
mistakenly that he had relied on pen/trap data gathered
from Terry’s phone to identify 5638 as Cubie’s new telephone
number. After the hearing, Thompson learned that
no orders authorizing the collection of such data from
Terry’s two telephones were issued until May 3, 2005,
meaning that he could not possibly have used Terry’s
phone data to identify Cubie’s new number the month
before. In his affidavit, Thompson reaffirmed the remainder
of his testimony from the first hearing, particularly
those statements related to the confidential informant’s
telephone call to 1716 and the monitoring of Nicksion’s
phone activities. It was this information, Thompson
stated, that allowed him to connect 5638 with Cubie.

The court granted the motion to reopen and held a
second hearing on Terry’s motion to suppress on
December 20, 2006. Thompson testified again, explaining
his mistake during the previous hearing. An additional
discrepancy emerged at the second hearing regarding
the timing of the phone call from 1716 to 5638. At the
first hearing, Thompson testified that 1716 had called
5638 after receiving the informant’s call on April 5. Phone
data, however, revealed that 1716’s new user had called
5638 on March 31, six days before the April 5 phone call
from the confidential informant. Thompson explained
that he had again been mistaken—that he had learned of
the call between 1716 and 5638 after the informant’s call
to 1716, not that the call had actually occurred subsequent
to the informant’s call.

Thompson’s reliance on Nicksion’s phone data
remained unchanged. In early April, Nicksion had
stopped communicating with 1716 and begun calling 5638
at a frequency similar to his previous calls to 1716.
Near the conclusion of his testimony, Thompson said:
“Right now I’d have to say Orlandes Nicksion’s pen
was the key to us identifying that phone number . . . .”
As Terry pointed out, Thompson’s new focus on
Nicksion’s number alone contradicted a statement the
government made in its § 2703(d) application, filed
on April 12. There, as one of its grounds for issuing the
§ 2703(d) order, the government offered “[a]n analysis of
the telephone records pertaining to the most commonly
called numbers to [1716] over a two month period” (emphasis
added). If, as Thompson contends, he had relied on
analysis of only Nicksion’s number, the use of the
plural “numbers” in the § 2703(d) application would be
at odds with Thompson’s testimony.

In his recommendation to the district judge, the magistrate
judge found that Thompson’s original misstatements
were mistakes made in good faith—not, as Terry asserted,
evidence of governmental indiscretion. The magistrate
judge determined that Thompson’s testimony, including
his explanations for the aforementioned discrepancies,
was credible and recommended to the district court that
it deny Terry’s motion to suppress. The district judge
adopted the recommendation in an order dated
August 21, 2007.

Terry eventually pled guilty to the charge contained in
Count One—conspiring to distribute more than five
kilograms of cocaine, fifty grams of crack, and an unspecified
quantity of marijuana in violation of 21 U.S.C.
§ 841(a)(1)—and was sentenced to 260 months in prison,
to be followed by five years of supervised release. In
exchange for his plea, the government dismissed the
remaining two counts against Terry. It also allowed him
to reserve the right to appeal issues raised in any
pretrial motions, which included his motion to suppress.
Terry now appeals the district court’s decision
on this motion.

II. ANALYSIS
In essence, Terry asks us to overturn the finding that
Detective Thompson was a credible witness. To convince
us to take such a drastic step, Terry must traverse a
difficult path.

When a credibility finding is based upon testimony
presented during a suppression hearing, we will reverse
such a determination only when it is clearly erroneous.
United States v. Huebner, 356 F.3d 807, 812 (7th Cir. 2004).
Indeed, we provide “special deference” to credibility
findings, based on the lower court’s superior position
to evaluate a witness. United States v. Whited, 539 F.3d 693,
697 (7th Cir. 2008); see also Huebner, 356 F.3d at 812 (commenting
on the trial judge’s ability “to observe the
verbal and nonverbal behavior of the witnesses . . . in
contrast with merely looking at the cold pages of an
appellate record” (emphasis and quotations omitted));
United States v. Mancillas, 183 F.3d 682, 710 (7th Cir. 1999)
(“[W]e do not second-guess the . . . judge’s credibility
determinations because he or she has had the best opportunity
to observe . . . the subject’s . . . facial expressions,
attitudes, tone of voice, eye contact, posture and body
movements . . . .” (alterations in original) (quotations
omitted)). We will credit testimony found credible by
the court below “ ‘unless it is contrary to the laws of
nature, or is so inconsistent or improbable on its face
that no reasonable factfinder could accept it.’ ” Mancillas,
183 F.3d at 710 (quoting United States v. Yusuff, 96 F.3d
982, 986 (7th Cir. 1996)).

As both the magistrate judge and the district judge
acknowledged, there were a number of discrepancies
surrounding Detective Thompson’s testimony and the
documentary evidence presented in support thereof.
First, there was the misdated report, which, if it had
been created on the date entered by Thompson, would
suggest that Thompson had early access to unauthorized
information; this error Thompson chalked up as “a typo.”
Second, he said that the new user of 1716 placed a call
to 5638 within a “couple of hours” of receiving a call
from a government informant; when confronted with
the phone records, however, he admitted that 1716
had telephoned 5638 several days before the informant’s
call. Third, Thompson originally stated that Terry’s
phone data provided a link between 5638 and Cubie,
only to recant the statement after he realized that the
government did not begin monitoring Terry’s phone until
three weeks after it identified the 5638 number. And
fourth, we learned of the § 2703(d) application, which
discussed the analysis of data gleaned from the phones
associated with 1716’s “frequently called numbers,”
although Thompson eventually testified that he relied
on the calling pattern of only one number, Nicksion’s,
to identify 5638.

These facts are indicative of less-than-exemplary detective
work and are certainly unfavorable to the government.
Detective Thompson’s missteps in his written
documentation and testimony were far cries from the
accuracy that we expect from those empowered with
restricting the freedom of our citizens. Before a person
is sent to prison for any length of time, let alone twenty
years of his life, he is correct to demand accountability
from those who are responsible for sending him there.
As we know, however, perfection is impossible. So although
Thompson’s several mistakes might be regrettable,
they were, as the magistrate and district judges rightfully
concluded, nothing more than mistakes.

As we have said: “ ‘[T]estimony is not incredible as a
matter of law . . . only because the witness may have
been impeached by certain discrepancies in his story, by
prior inconsistent statements, or by the existence of a
motive to provide evidence favorable to the government.’
” Huebner, 356 F.3d at 813 (second alteration in
original) (quoting United States v. Scott, 145 F.3d 878,
883 (7th Cir. 1998)). Each of these circumstances existed,
to one degree or another, in this case. Yet after a
thorough review of the relevant facts, the magistrate
judge found Terry’s arguments unavailing. The facts
were only that the government had committed a series
of minor errors, not that it had acted illegally.

Staring at the pages of a cold record, we are in no
position to reassess the credibility of the sole witness
who appeared at the suppression hearing. That job belonged
to the magistrate judge. The district judge
properly deferred to his judgment; we, in turn, will
defer to them both. This is not, as Terry contends, a
“remarkable case” warranting reversal. There is nothing
in the record that compels the conclusion that the government
acted illegally in identifying Cubie’s 5638 number.
The district court’s decision was not clearly erroneous
and must stand.

III. CONCLUSION
We AFFIRM the decision of the district court to deny
Terry’s motion to suppress.

Chicago Criminal Lawyer - Robert J Callahan