14-1275-cr
United States v. House


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
26th day of January, two thousand and sixteen.

Present:
               PETER W. HALL,
               SUSAN L. CARNEY,
                          Circuit Judges,
               BRIAN M. COGAN,
                          District Judge.*

____________________________________________________

UNITED STATES OF AMERICA,

                      Appellee,

               v.                                                           No. 14-1275-cr

RONALD L. HOUSE,


                      Defendant-Appellant.




       *
         Hon. Brian M. Cogan, United States District Court for the Eastern District of New York,
sitting by designation.

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____________________________________________________

For Defendant-Appellant:       CHARLES F. WILLSON, Federal Public Defender, Hartford, CT.

For Appellee:           RAJIT S. DOSANJH (Lisa M. Fletcher, of counsel), Assistant United
                        States Attorneys, for Richard S. Hartunian, United States Attorney
                        for the Northern District of New York, Syracuse, NY.
____________________________________________________

       Appeal from a judgment of the United States District Court for the Western District of

New York (Skretny, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Following a jury trial, Defendant-Appellant House was convicted of three counts of

obstruction of justice in violation of 18 U.S.C. § 1503(a) (Counts Three, Four, and Six of the

Superseding Indictment), acquitted of three other counts of obstruction of justice (Counts One,

Two, and Five), and convicted of one count of making materially false statements in violation of

18 U.S.C. § 1001(a)(2) (Count Seven). On April 8, 2014, House was sentenced to a term of

imprisonment of 48 months. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues presented on appeal.

       First, House argues that the court erred in approving the Title III wiretap applications

because there was an insufficient showing of necessity under 18 U.S.C. § 2518(1)(c), which

requires “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.” In reviewing a district court’s ruling on a motion to suppress wiretap evidence, “we

accord deference to the district court because ‘the role of an appeals court in reviewing the

issuance of a wiretap order . . . is not to make a de novo determination of sufficiency as if it were

a district judge, but to decide if the facts set forth in the application were minimally adequate to

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support the determination that was made.’” United States v. Miller, 116 F.3d 641, 663 (2d Cir.

1997) (internal alteration omitted) (quoting United States v. Torres, 901 F.2d 205, 231 (2d Cir.

1990), abrogated on other grounds by United States v. Marcus, 628 F.3d 36, 41 (2d Cir. 2010)).

       In requiring disclosure as to the use, attempted use, and difficulties of employing other

investigative techniques, Congress “struck a balance between the needs of law enforcement

officials and the privacy rights of the individual.” United States v. Concepcion, 579 F.3d 214,

218 (2d Cir. 2009) (internal quotation and alteration omitted). Even where a wiretap would be

the most efficient method, the statutory requirement “reflects a congressional judgment that the

cost of such efficiency in terms of privacy interests is too high,” absent a sufficient showing of

necessity. Id. (quoting United States v. Lilla, 699 F.2d 99, 105 n.7 (2d Cir. 1983)). The

question, therefore, “is not whether a wiretap provides the simplest, most efficient means of

conducting an investigation; telephonic surveillance may only be used when it is necessary to

assist in law enforcement.” Id.

       The statute does not require, however, “that any particular investigative procedures must

be exhausted before a wiretap may be authorized.” Miller, 116 F.3d at 663 (internal quotation

and alteration omitted). Title III does not “preclude resort to electronic surveillance until after all

other possible means of investigation have been exhausted by investigative agents; rather [it]

only require[s] that the agents inform the authorizing judicial officer of the nature and progress

of the investigation and of the difficulties inherent in the use of normal law enforcement

methods.” United States v. Vazquez, 605 F.2d 1269, 1282 (2d Cir. 1979) (internal quotation

omitted).

       In this case, House’s assertion that the issuing court’s approval of wiretaps rested upon a

“largely conclusory affidavit,” Appellant’s Br. at 15, is belied by the record. The 75-page



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supporting affidavit explained that the wiretap was necessary to determine, inter alia, “the

nature, extent and methods of operation” of the scheme to obstruct justice and the identities and

roles of accomplices and co-conspirators. (See Report and Recommendation 9–10, ECF No. 31,

Case No. 1:12-cr-0074.)         Further, the affidavit provided a detailed description of the

investigative techniques that had been attempted or considered and stated the specific reasons

why those means were either not feasible or inadequate.1 (Id. at 10). These facts were, at the

least, “minimally adequate to support the determination that was made.” Miller, 116 F.3d at 663

(internal quotation omitted).

       House contends that other investigative methods, such as identifying cases where

cooperation with authorities was at issue, polling Assistant United States Attorneys and

Probation Officers, checking court records, conducting physical and GPS surveillance, and using

cooperating witnesses, would have been adequate. This argument fails to explain how any of

these methods would have fulfilled the government’s objective of ascertaining the identities and

roles of others in the obstruction scheme. Further, House’s suggested methods fail to address the

obstacles identified by the government, including the difficulties with physical surveillance, the

limited utility of pen registers and telephone records given that many of House’s clients used

prison phones, the limitations posed by a Grand Jury proceeding, and the unreliability of witness

interviews.2

1
  House contends that the affidavit misrepresented that he may have been conspiring with law
enforcement to avoid surveillance. The affidavit’s allegation that House had been in regular
contact with a certain Rochester police officer, however, was supported by the record. The
purpose of the wiretap was, in part, to determine whether the officer was a knowing participant
in the obstruction scheme or whether he was gathering information legitimately on behalf of the
police department.
2
 House’s reliance on United States v. Lilla, 699 F.2d 99 (2d Cir. 1983), is misplaced. The Court
determined in that case that an officer’s affidavit had been insufficient to support the wiretap
warrant because it did “not reveal what, if any, investigative techniques were attempted prior to
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       House also challenges the court’s jury instructions regarding the obstruction of justice

counts. He first argues that the court’s instruction regarding the jury’s obligation to reach a

unanimous decision with respect to proof of guilt wrongly implied that the jury could convict on

one count if they agreed that any count was proven, and that the instruction did not require that

the jurors be unanimous as to the same count. The court’s instruction made clear, however, that

because the government alleged multiple possible theories of guilt with respect to a count, the

jurors need not agree on the factual specifications for each count so long as the jury was

unanimous that House was guilty of the offense charged in the count.              The court further

instructed the jury to evaluate the counts “methodically,” by moving “charge to charge to charge

to charge, count to count to count,” Tr. 1835–36. That the jury understood the court’s

instructions is suggested by its acquittal of House on three of the obstruction of justice counts.3

       House next contends that the district court erred when it instructed the jury that it could

find him guilty if it determined that he sought payment from federal defendants “by claiming that

he could obtain sentencing leniency,” Tr. 1844—conduct that, House claims, might involve “no

more than a defendant hiring a non-lawyer sentencing advocate or researcher,” Appellant’s Br. at

26. We disagree. House’s argument is belied by the court’s instruction that “no matter the

the wiretap request,” id. at 104, and merely asserted that no other techniques would be effective.
Id. Further, the record revealed that other investigative techniques had, in fact, been successful.
Id.
3
  Any suggestion that the jury was required to agree on a factual theory of guilt for each count is
not supported by Second Circuit jurisprudence. In United States v. Natelli, 527 F.2d 311 (2d Cir.
1975), the Court advised that “it would be sound practice” for courts to require such an
instruction, id. at 325, but recognized that a general unanimity instruction was also proper. Id.
Neither the Supreme Court nor this Circuit requires a unanimity instruction as to the factual
theories of guilt underlying each count. See United States v. Stewart, 433 F.3d 273, 319 (2d Cir.
2006) (holding that the district court “did not err by failing to instruct the jurors that they must
agree unanimously as to which theory of the offense . . . supported the verdict”) (citing Schad v.
Arizona, 501 U.S. 624, 631 (1991)).



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means or way by which the crime is alleged to have been committed . . . the act must have been

committed corruptly” with “the improper motive or purpose of obstructing justice.” Tr. 1846. In

fact, House requested this very instruction in order to “reinforc[e]” to the jury the need for the

Government to prove he acted with “corrupt” intent, Tr. 1746, and he indicated to the court

during the charge conference that no “further discussion” with the jury was necessary on this

point. Tr. 1846–47. House similarly appeals on the basis that counseling a criminal defendant

“to change attorneys and plead guilty in order to be released from custody,” Appellant’s Br. at 8,

does not rise to the level of criminal conduct; this argument fails for the same reason. To the

extent that House contends that the factual theories relied on by the government were legally

insufficient to prove obstruction of justice, he overlooks the allegations in the indictment that he

committed these acts “corruptly,” that is, with the intent wrongfully to “influence, obstruct, or

impede the due administration of justice.” 18 U.S.C. § 1503.

       We have considered Appellant’s remaining arguments and find them to be without merit.

The judgment of the district court is AFFIRMED.



                                              FOR THE COURT:

                                              CATHERINE O’HAGAN WOLFE, CLERK




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