                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4245


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

STEVEN ROBINSON, a/k/a H,

                    Defendant - Appellant.



Appeal from the United States District Court for the Northern District of West Virginia,
at Martinsburg. Gina M. Groh, Chief District Judge. (3:16-cr-00050-GMG-RWT-1)


Submitted: April 23, 2019                                         Decided: April 30, 2019


Before GREGORY, Chief Judge, NIEMEYER and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kenneth W. Ravenell, RAVENELL LAW, Baltimore, Maryland, for Appellant. William
J. Powell, United States Attorney, Shawn M. Adkins, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Steven Robinson appeals the district court’s denials of his motions to recuse, to

suppress evidence obtained via wiretaps, and for a hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978), and his subsequent conviction for conspiracy to possess

with intent to distribute and to distribute heroin in violation of 21 U.S.C. §§ 841, 846

(2012).

      Robinson sought to recuse the district judge, pursuant to 28 U.S.C. § 455, from

ruling on his motion to suppress the evidence obtained from three wiretap orders.

Robinson asserted that the judge could not be impartial because the district judge granted

the wiretap authorizations that were the subject of his motion to suppress. Section 455(a)

provides that “[a]ny justice, judge, or magistrate judge of the United States shall

disqualify himself in any proceeding in which his impartiality might reasonably be

questioned.” In considering recusal under subsection (a), “what matters is not the reality

of bias or prejudice but its appearance.” Liteky v. United States, 510 U.S. 540, 548

(1994). Disqualification also is required when the judge “has a personal bias or prejudice

concerning a party, or personal knowledge of disputed evidentiary facts concerning the

proceeding.” 28 U.S.C. § 455(b)(1) (2012).

      “We review a judge’s recusal decision for abuse of discretion.” Kolon Indus. Inc.

v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 167 (4th Cir. 2014). Generally, “courts

have only granted recusal motions in cases involving particularly egregious conduct.”

Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011). In order to disqualify a judge, the



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“bias or prejudice must, as a general matter, stem from ‘a source outside the judicial

proceeding at hand.’” Id. at 572 (quoting Liteky, 510 U.S. at 545).

        “[J]udicial rulings alone almost never constitute a valid basis for a bias or
        partiality motion.” And, “opinions formed by the judge on the basis of
        facts introduced or events occurring in the course of the current
        proceedings, or of prior proceedings, do not constitute a basis for a bias or
        partiality motion unless they display a deep-seated favoritism or
        antagonism that would make fair judgment impossible.”

United States v. Lentz, 524 F.3d 501, 530 (4th Cir. 2008) (quoting Liteky, 510 U.S. at

555).

        Our review of the record leads us to conclude that the district court did not abuse

its discretion in denying Robinson’s motion to recuse. Robinson provided no grounds for

recusal under § 455 and his sole claim of bias was based on the court’s earlier rulings.

        Next, Robinson argues that the district court erred by denying his motion for a

Franks hearing, contending that the affidavit supporting the wiretap applications

contained omissions. “We assess de novo the legal determinations underlying a district

court’s suppression rulings, including the denial of a Franks hearing, and we review the

court’s factual findings relating to such rulings for clear error.” United States v. Allen,

631 F.3d 164, 171 (4th Cir. 2011).

        In Franks the Supreme Court held that the Fourth Amendment requires a hearing

to be held at defendant’s request “where the defendant makes a substantial preliminary

showing that a false statement knowingly and intentionally, or with reckless disregard for

the truth, was included by the affiant in the warrant affidavit . . . if the allegedly false

statement is necessary to the finding of probable cause . . . .” 438 U.S. at 155–56. “The


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burden of making the necessary showing is . . . a heavy one to bear.” United States v.

Tate, 524 F.3d 449, 454 (4th Cir. 2008). This showing “must be more than conclusory”

and “must be accompanied by an offer of proof.” Franks, 438 U.S. at 171. Allegations

must be supported through affidavits or sworn witness statements, or an explanation of

why these cannot be provided. Id. Defendants may bring Franks challenges when an

affidavit contains a false statement or a material omission. United States v. Lull, 824

F.3d 109, 114 (4th Cir. 2016). “An omission is material if it is necessary to the neutral

and disinterested [court’s] finding of probable cause. Even if relevant, information is not

material unless its inclusion in the affidavit would defeat probable cause.” United States

v. Wharton, 840 F.3d 163, 168 (4th Cir. 2016) (citations, alterations and internal

quotation marks omitted).

       Robinson alleges that the affiant omitted any discussion of three investigative

techniques and that use of these techniques – GPS cell phone tracking, a cell site

simulator, and pole cameras – would have negated the need for the wiretap. The affidavit

discussed pole cameras, noting these were not used because the locations for drug

purchases were not known in advance, and it sought authorization for GPS phone

tracking, noting that this technique did not reveal the nature and content of any

communication. Robinson provided no affidavits, sworn statements or other reliable

evidence to challenge the veracity of the affiant.       Under these circumstances, we

conclude that Robinson failed to make the preliminary showing required for a Franks

hearing.



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       Finally, Robinson argues that the court erred in denying his motion to suppress the

evidence obtained by the wiretaps. He claims that the affidavit supporting the wiretap

applications failed to show the required necessity and that the affiant improperly omitted

the discussion of certain techniques, which, Robinson asserts would have proved the

wiretaps unnecessary.

       “We review for clear error the factual findings underlying a district court’s ruling

on a motion to suppress, and we review the court’s legal conclusions de novo.” United

States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). Determinations of necessity for a

wiretap are reviewed for abuse of discretion. Id.

       “To obtain authorization for a wiretap, . . . the government [must] submit an

application containing ‘a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they reasonably appear to be

unlikely to succeed if tried or to be too dangerous.’” United States v. Galloway, 749 F.3d

238, 242 (4th Cir. 2014) (quoting 18 U.S.C. § 2518(1)(c) (2012)). A district court may

authorize a wiretap only if it determines 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.’” United States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994) (quoting 18

U.S.C. § 2518(3)(c) (2012)). The exhaustion requirement is “designed to ensure that the

relatively intrusive device of wiretapping is neither ‘routinely employed as the initial step

in criminal investigation,’ nor ‘resorted to in situations where traditional investigation

techniques would suffice to expose the crime.’” Id. (quoting United States v. Giordano,

416 U.S. 505, 515, and United States v. Khan, 415 U.S. 143, 153 n.12 (1974)).

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       The Government’s burden in this regard “is not great, and 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.” Id. (internal quotation

marks omitted). To show necessity, “the Government need only present specific factual

information sufficient to establish that it has encountered difficulties in penetrating the

criminal enterprise or in gathering evidence such that wiretapping becomes reasonable.”

Wilson, 484 F.3d at 281 (brackets and internal quotation marks omitted).

       We conclude that the district court correctly found that the warrant affidavit

satisfied the exhaustion requirement and that the Government met its burden of

establishing that it encountered difficulties in fully investigating the conspiracy such that

the resort to wiretapping was reasonable. The affidavit noted that numerous investigative

techniques were attempted but failed to reveal the full scope of Robinson’s organization,

and provided particularized explanations of why other techniques were unlikely to

achieve all the goals of the investigation. These explanations were sufficient to establish

necessity for the wiretaps.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                                AFFIRMED




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