US v. Addarius Martinez, No. 11-4438 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4438 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ADDARIUS ABEL MARTINEZ, Defendant - Appellant. No. 11-4564 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AARON TYLER SOMERVILLE, Defendant - Appellant. No. 11-5052 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAYMOND GARFIELD BUTLER, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:08-cr-00442-JFM-2; 1:08-cr-00442-JFM-1; 1:08-cr00442-JFM-4) Submitted: July 20, 2012 Before TRAXLER, Judges. Chief Judge, Decided: and SHEDD and September 7, 2012 DUNCAN, Circuit Affirmed by unpublished per curiam opinion. Nicholas J. Vitek, VITEK LAW LLC, Baltimore, Maryland, for Appellant Addarius Abel Martinez; Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for Appellant Aaron Tyler Somerville; Gerald C. Ruter, LAW OFFICE OF GERALD C. RUTER, PC, Rosedale, Maryland, for Appellant Raymond Garfield Butler. Rod J. Rosenstein, United States Attorney, Christopher J. Romano, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Addarius Martinez, Aaron appeal their ( Appellants ) Somerville, drug and Raymond conspiracy Butler convictions. Finding no error, we affirm. I. In 2004, members of the Cecil County Maryland Drug Task Force (CCDTF), the Kent County Maryland Drug Task Force, and the Baltimore/Washington High Intensity Drug Trafficking Area (HIDTA) began investigating a drug distribution organization led by Somerville, who resided in the Cecilton area of Cecil County, Maryland, and Martinez, who resided in Chestertown, Kent County, Maryland. base. The organization sold primarily cocaine and cocaine Between confidential August 2006 informants to and make April 2008, several CCDTF controlled utilized purchases from Somerville in Cecil County. Based on information investigators had gathered, on June 2, 2008, the Cecil County State s Attorney applied to Cecil County Circuit Judge O. Robert Lidums for authorization to intercept calls over approved wiretap. the Somerville s request and cellular issued telephone. an order Judge Lidums authorizing the In so doing, he determined that there was probable cause to believe that Somerville and others were violating and 3 were about to violate Maryland s controlled dangerous substance laws. The resulting significant interception additional Somerville s organization. to Javon McClinton, who Somerville s of evidence of Martinez s calls yielded involvement in For example, in a June 6, 2008, call was an identified drug associate of Somerville and Martinez, Somerville stated that he could not get Martinez to answer the phone and then instructed McClinton to tell him do we got the other software together? (internal quotation Somerville that he marks got omitted). them When in, J.A. 202 McClinton Somerville then advised advised McClinton, I m coming to get the other thing of software . . . I ll be right omitted). there. J.A. 202 (internal quotation marks Three minutes later, Somerville received a call from Martinez in which Martinez told Somerville, Jay told me, say about the other half, like when you come back, I can give you a little bit more because I didn t even get that much . . . . I ma sell all this out so I can get, go ahead and get some more. J.A. 203 (internal quotation marks omitted). He then advised Somerville, [W]e won t add until you have no more of that s**t. J.A. 203 (internal quotation marks omitted). From their experience, the investigators recognized that software referred to powder cocaine, and these conversations confirmed to them that Martinez was frequently 4 supplying cocaine to Somerville for him to use in his drug distribution network. J.A. 203. The wiretap also provided evidence of Butler s role as a supplier call, to Somerville s Somerville asked organization. Butler about In drug a June 2008, J.A. prices. 12, 203. Butler indicated that he would attempt to obtain six to eight kilograms of cocaine when he met with his suppliers the next day, realizing that Somerville and several others were interested in buying them. Some of the intercepted calls also indicated that Butler was distributing drugs to customers in Cecil County other than Somerville and that he had plans to continue. For example, in one call Butler had admitted conducting drug transactions on the night of June 12, 2008, in the Cecil County town of North East. In this same call, Butler relayed that he and Martinez had been discussing that several Cecil County towns were wide open, meaning that they lacked mid-level dealers. quotation marks omitted). customer told Butler J.A. 204 (internal In a call made on June 20, 2008, a that she had heard he had heroin and cocaine, prompting him to tell her that he would head toward North East, where she was located. (Detectives observed meeting in North East later that night between the two.) a In another call, Butler and Somerville discussed a Cecil County location that Butler had previously 5 indicated he was in the process of setting up as a location to distribute drugs. in another conversation concerning the market for And, selling cocaine in Maryland, Somerville asked Butler to look into the Cecil County community of Elkton, asserting that there were many cocaine customers that could use a supplier of Butler s magnitude. Because Somerville s of information phone, on June developed from 16, detectives 2008, the wiretap on applied to Judge Lidums for authorization to intercept calls to and from Martinez s cellular telephones, and on June 19, 2008, they applied for authorization from Judge Lidums to intercept calls to and from Butler s cellular telephone. Again, Judge Lidums determined there was probable cause to believe that Somerville and others, including Martinez and Butler, were then committing and about to commit violations of the controlled dangerous substance laws of Maryland, and that the offenses were occurring in Cecil County, Maryland. 1 On September 16, 2008, a federal grand jury returned a twocount indictment. Count One charged that from in or about June 2008 through in or about July 2008 Somerville, Martinez, and 1 As a result of intercepting Butler s calls, members of the CCDTF learned that Butler had an additional cell phone that he used in the drug conspiracy. As a result, they applied for and were granted authorization to intercept calls over that line as well. 6 McClinton conspired with each other and others to distribute and possess with intent to distribute five grams or more of cocaine base and 500 grams or more of cocaine hydrochloride, violation of 21 U.S.C.A. § 846 (West 1999). in Count Two charged that on or about July 15, 2008, Martinez and McClinton possessed with intent to distribute a quantity of a mixture or substance containing cocaine hydrochloride, in violation of 21 U.S.C.A. § 841(a)(1) (West 1999). A superseding indictment later named Butler as an additional defendant in Count One. Appellants each wiretap evidence. 2 moved The unsuccessfully district to suppress the court denied their motions, however, and they each pled guilty to Count One pursuant to written plea agreements that reserved the right to appeal the denial of their motions to suppress. Martinez, Somerville, and Butler were sentenced to prison terms of 92 months, 102 months, and 156 months respectively. II. Appellants first argue that the district court erred in not granting their motions to suppress on the basis that the various 2 McClinton pled guilty to Count One of the superseding indictment and is not involved in this appeal. 7 wiretap applications did not sufficiently demonstrate the need for the wiretaps. We disagree. Electronic eavesdropping by law enforcement is governed by the federal wiretap statute. See 18 U.S.C.A. § 2510 et seq. (West 2000 & Supp. 2012); United States v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995). To obtain authorization for a wiretap under that statute, the government must establish, in addition to probable cause, that normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. U.S.C.A. § 2518(3)(c). This burden is not great, and 18 the adequacy of such a showing is to be tested in a practical and commonsense fashion that does not hamper unduly the investigative powers of law enforcement agents. United States v. (citation Smith, 31 F.3d 1294, 1297 (4th Cir. internal quotation marks omitted). present specific factual 1994) and The government need only information sufficient to establish that it has encountered difficulties in penetrating the criminal enterprise or in wiretapping gathering becomes evidence to reasonable. Id. at the 1298 point where (alterations, citation, and internal quotation marks omitted). We review court s ruling the on a factual motion findings to suppress review its legal conclusions de novo. 8 underlying for clear a district error and See United States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). of discretion an authorizing wiretap was necessary. We find contains no an court s We review for abuse determination that a See id. such abuse affidavit here. setting Each forth wiretap in application great detail the investigative techniques that had been employed to that point. They included utilizing (or attempting to utilize) confidential informants, undercover purchases, stationary and mobile surveillance, financial investigation, dialed number recorders, telephone subscriber information, search and seizure warrants, abandoned trash, and records checks. The affiants explained that although these methods yielded significant evidence, they were not sufficient to achieve their goals, such as successfully apprehending and prosecuting local coconspirators and then-asyet unidentified individuals higher up in the distribution scheme, identifying the location of stash houses and obtaining the evidence necessary to seize drug proceeds. Appellants contend that after being granted authorization to intercept and record Somerville s calls, investigators took relatively Martinez few and particular additional Butler. investigatory investigatory However, steps the were steps with question taken regard of before to whether or after officers began listening to and recording Somerville s calls is of little importance. As Appellants 9 acknowledge, each application must be judged on its own merits. And, to the extent Appellants maintain that Judge Lidums s authorization of the Somerville wiretap eliminated the need for the subsequent wiretaps, that contention is adequately refuted by the applicable affidavits. Appellants next maintain that the district court erred in refusing to suppress the evidence generated by the Martinez and Butler wiretaps because the affidavits in support of those orders provided no allegations of a crime being committed in Cecil County. Because this claim is raised for the first time on appeal, our review is for plain error. Olano, 507 U.S. 725, 731-32 (1993). See United States v. Nevertheless, we find no error, plain or otherwise. Under Maryland law, an applicant seeking a wiretap order must apply to a judge of competent jurisdiction. Md. Code Ann., Cts. & Jud. Proc. § 10-406. In this context, [j]udge of competent judge within jurisdiction the State investigation. having means a jurisdiction of any circuit court over the offense under Md. Code Ann., Cts. & Jud. Proc. § 10-401(8). In Maryland, a circuit court judge has jurisdiction only over criminal offenses circuit court sits. occurring within the county in which the See Md. Code Ann., Cts. & Jud. Proc. § 1- 501 ( Each [circuit court] has full common-law and equity powers 10 and jurisdiction in all civil and criminal cases within its county. (emphasis added)). We conclude that the affidavits satisfactorily alleged that Martinez and Butler were engaged in drug crimes in Cecil County. The affidavits established that the officers were investigating the drug distribution distributed narcotics organization in both in Cecil which and Kent Somerville Counties. Referencing the earlier-discussed phone conversations and other evidence, the affidavits contained facts demonstrating probable cause that Martinez was conspiring with him in this organization and supplying some of the drugs to be distributed. See United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008) (explaining that a drug purchase combined with evidence of continuing relationships and repeated transactions can support the finding that there was a conspiracy, especially substantial quantities of drugs ). demonstrating probable cause that when coupled with They also contained facts Butler was conducting drug transactions in Cecil County and that he planned to continue to do so. III. In sum, convictions. finding no error, we affirm Appellants We dispense with oral argument because the facts and legal contentions are adequately presented in the materials 11 before the court and argument would not aid the decisional process. AFFIRMED 12
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