                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 16-1987
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                   ANTHONY ELLIS,
                                          Appellant

                                   ________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                        (D.C. Criminal No. 2-12-cr-00101-001)
                        District Judge: Honorable Cathy Bissoon
                                   ________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 20, 2017

              Before: AMBRO, VANASKIE, and SCIRICA, Circuit Judges

                                   (Filed: June 5, 2017)


                                   ________________

                                       OPINION*
                                   ________________

SCIRICA, Circuit Judge



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Ellis appeals his conviction and sentence following his conditional guilty plea to a

charge of conspiracy to distribute and possess with the intent to distribute heroin. 1 Ellis

reserved his right to appeal the denial of his motion to suppress evidence, alleging the

government’s application for the authorization of electronic surveillance did not meet the

requirements of 18 U.S.C. § 2518(3)(c). We have jurisdiction under 28 U.S.C. § 1291.

We will affirm.

                                                 I.

       This case involves a heroin trafficking conspiracy and arises from an FBI

investigation of a criminal organization, the East Hills Bloods, in Pittsburgh,

Pennsylvania. The investigation was prompted by a series of violent incidents in the East

Hills area of Pittsburgh, including the murder of an East Hills woman during a home

invasion designed to steal a large quantity of heroin from an associate of the East Hills

Bloods.

       Between August 2011 and March 2012, the government applied for and obtained

eight warrant authorizations to intercept calls and electronic messages sent from and

received by telephones used by various members of the conspiracy. Special Agent David

N. Hedges, a twenty-five year veteran of the FBI with specialized drug training, was the

affiant for all eight applications. He had been the affiant on seventeen previous Title III

investigations.
1
  Ellis pled guilty to Count One of the indictment, charging him with conspiring “to distribute
and possess with intent to distribute 100 grams or more of . . . heroin,” in violation of 21 U.S.C.
§ 846. See 21 U.S.C. § 841. Ellis was sentenced to 120 months’ imprisonment with credit for
time served, and four years of supervised release.
                                                 2
       The District Court issued the first seven of these authorizations (“the Initial

Authorizations”) between August 2011 and February 2012. The Initial Authorizations

permitted interception of calls and messages sent to and from telephone numbers used by

several members and associates of the East Hills Bloods, including, inter alia, David

Agurs, Ronald Ashby, and Anthony Lemon. Information obtained from these intercepts

provided probable cause to believe these men were members of the East Hills drug

trafficking conspiracy. Although the Initial Authorizations did not include the telephone

used by Ellis, “Target Telephone #18,” the intercepts of telephone communications by

Agurs and Ashby included calls made to and received from Target Telephone #18 that

revealed Ellis’s participation in the conspiracy. In these telephone conversations, Ellis

can be heard arranging drug sales and engaging in counter-surveillance with Agurs and

Ashby.

       On March 23, 2012, the Government submitted the application and supporting

affidavit (collectively “the Application”) that are the subject of this appeal. The

Application sought to continue existing wiretaps and to tap telephones used by two

additional coconspirators, one of which was Target Telephone #18 used by Ellis. The

Application was accompanied by Special Agent Hedges’s ninety-three page affidavit,

which included a twenty-two page section dedicated to satisfying the necessity

requirement under 18 U.S.C. § 2518(1)(c). The District Court granted approval to

intercept calls and electronic messages sent to and from Target Telephone #18.




                                              3
       Based in part on information obtained from the interception of Target Telephone

#18, Ellis was indicted by a grand jury in March 2013 on narcotics and firearms

conspiracy charges. He unsuccessfully moved to suppress the evidence obtained pursuant

to the Application on the ground it failed to meet the requirements of 18 U.S.C. §

2518(1)(c) and (3)(c). As noted, Ellis entered a conditional guilty plea waiving his right

to appeal on any ground other than the suppression of evidence obtained through the

Application. This appeal followed.

                                            II.

       Ellis alleges the District Court erred in denying his motion to suppress

communications to and from Target Telephone #18 intercepted pursuant to the March

2012 authorization because the affidavit in support of the Application did not meet the

“necessity” requirement of 18 U.S.C. §§ 2518(1)(c) and (3)(c).

                                            A.

       An application for an intercept authorization must include “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.” 18

U.S.C. § 2518(1)(c). We have generally called this the “necessity” requirement. See, e.g.,

United States v. Bailey, 840 F.3d 99, 114 (3rd Cir. 2016). We review the District Court’s

determination that the Application contained a statement of necessity de novo and its

determination of necessity for abuse of discretion. United States v. Phillips, 959 F.2d

1187, 1189 (3rd Cir. 1992).
                                             4
       The applicable investigative procedures generally include, inter alia, (1) visual

and aural surveillance, (2) general questioning or interrogation under immunity grants,

(3) regular search warrants, and (4) the infiltration of conspiratorial groups by undercover

agents or informants. United States v. Armocida, 515 F.2d 29, 37 (3rd Cir. 1975). They

may also include using a pen register or trap-and-trace device. United States v.

Killingsworth, 117 F.3d 1159, 1163 (10th Cir. 1997). The application does not have to

show these other techniques could not possibly succeed. Armocida, 515 F.2d at 37.

Rather, the application must describe the facts and circumstances surrounding the

investigation that establish a “factual predicate” sufficient to allow the issuing court to

determine such techniques will likely be unsuccessful or too dangerous. United States v.

McGlory, 968 F.2d 309, 345 (3rd Cir. 1992). Section 2518(3)(c) “is simply designed to

assure that wiretapping is not resorted to in situations where traditional investigative

techniques would suffice to expose the crime.” United States v. Kahn, 415 U.S. 143, 153

n.12 (1974). An application should “be tested in a practical and commonsense fashion,”

and “the statutory burden on the government is not great.” Armocida, 515 F.2d at 38.

“[I]n determining whether this requirement has been satisfied, a court may properly take

into account affirmations which are founded in part upon the experience of specially

trained agents.” United States v. Williams, 124 F.3d 411, 418 (3rd Cir. 1997) (quotation

mark omitted).

                                              B.




                                              5
       Ellis does not appear to contend, nor could he contend, the Application did not

include a statement of necessity. Rather, he alleges the Application was defective for

failing “to inform the issuing authority that the government conducted no traditional

methods of investigation on this Appellant.”

                                               i.

       Our cases do not explicitly say for what purpose interception must be “necessary.”

But their clear import shows that, at least where the government investigation targets a

large conspiracy and the individuals whose communications will be intercepted are

members of that conspiracy, the necessity requirement relates to the demonstrated or

probable inadequacy or danger of other investigative techniques to achieve the specific

goals pursued by the investigation at hand. See United States v. Bailey, 840 F.3d 99, 114–

15 (3rd Cir. 2016) (“Law enforcement further determined that other, less invasive

investigative techniques would also fail to reveal the full scope of the [conspiracy’s]

operations.”); see also Williams, 124 F.3d at 418 (stating 18 U.S.C. § 2518(3)(c) is

satisfied by showing, among other things, “the difficulty of penetrating an organization

with a secretive nature and a propensity towards violence”). In Bailey, although

confidential informants had already made controlled purchases from the leader of a drug-

trafficking organization, we upheld interceptions of his telephone communications in part

because “arresting [him] alone would have frustrated the goals of the broader

investigation.” Bailey, 840 F.3d at 114–15. Our sister circuits agree this is a proper

reason. See, e.g., United States v. Reed, 575 F.3d 900, 911 (9th Cir. 2009).


                                               6
       All eight applications in this case arose from an investigation of a large drug-

trafficking conspiracy in east Pittsburgh. The Application’s stated purpose was to

“identify the remaining co-conspirators, the precise manner in which their criminal

organization operates, and to dismantle the criminal organization through successful

arrests and prosecutions of those involved.” S. App’x. at 1003–04.2 Thus, the Application

could (and did) satisfy § 2518(1)(c) by showing other investigative techniques, even if

used against Ellis, were or would likely be unable to achieve the goals of the overarching

investigation to which the Application relates—e.g., “identify[ing] the remaining co-

conspirators, determin[ing] the precise manner in which their criminal organization

operates,” or uncovering the scope of a conspiracy of which Ellis was a member.

Accordingly, we will evaluate the necessity of intercepting Target Telephone #18 in light

of this purpose.

                                               ii.

       Ellis argues the Application made only conclusory and speculative statements and

did not set forth a factual predicate showing other investigative techniques were or would

likely be unsuccessful if used specifically in relation to him. We disagree.

       The Application explicitly bases its assertions on information obtained from law

enforcement involved in the investigation and interpreted in light of the training and

experience of Special Agent Hedges. This is precisely the type of information on which



2Citations to “S. App’x” refer to the appendix of the government’s Response Brief for the
United States of America and the pagination used therein.
                                               7
our cases allow the issuing court to rely. See United States v. Williams, 124 F.3d 411, 418

(3rd Cir. 1997).

       The Application asserts physical surveillance was conducted but had been of

limited use. According to the Application, the conspirators were very familiar with the

residents and extended families of the East Hills Public Housing Project where most of

the drug trafficking occurred, S. App’x. at 1017–18, and engaged in counter-surveillance

to identify outsiders and strange vehicles. Id. at 1018–19. The Application supports this

with specific examples, including two instances where a coconspirator discovered police

surveillance and discussed that discovery over the telephone with another coconspirator.

Id. at 1019. Additionally, the Application describes failed attempts at video surveillance

of the housing project and explains why future video surveillance and trash pulls in the

housing project would likely fail. Id. at 1018.

       The Application also asserts grand jury investigations, undercover investigations,

informants, search warrants, and pen registers had failed or were unlikely to be successful

for a number of reasons. To support these assertions, the Application uses several specific

facts and examples involving the conspiracy as a whole, its members, and the members of

the East Hills Bloods. These included, among others, a confidential informant who feared

reprisal of specific, named members of the East Hills Bloods and believed these members

were unlikely to cooperate due to a violent, retaliatory “code” followed by the East Hills

Bloods, id. at 1012–13; the specific investigatory limitations of two existing confidential

informants, id. at 1009; specific failed attempts to develop other informants, id. at 1010–


                                              8
11; specific named individuals who were arrested—one of whom leaped from a second

story window to avoid capture—yet did not provide useful information, id. at 1014;

several members of the conspiracy who were demonstrably wary of police, id. at 1014–

15; and the difficulty of infiltrating a gang in an area where the gang members grew up

together. Id. at 1008–09. Finally, the Application incorporated the affidavits used in all

seven of the Initial Authorizations.

       Importantly, the Application states Ellis “has been identified as a member of the

East Hills Bloods and a heroin trafficker.” Id. at 991. The Application supports this

assertion by setting out, in detail, nine intercepted conversations between Ellis (on Target

Telephone #18) and two members of the East Hills Bloods, Damon Agurs and Ronald

Ashby, in which Ellis arranged to sell heroin provided by Agurs and Ashby, see id. at

991–97; and two intercepted conversations between members of the East Hills Bloods

and persons with two other telephone numbers who were in regular contact with Target

Telephone #18. See id at 997–1000. Further, the Application describes pen register and

trap-and-trace data collected from other target phones indicating Target Telephone #18

was in frequent contact with other members of the conspiracy and the East Hills Bloods.

Id. at 1000–01. Additionally, the Application demonstrates Ellis’s own wariness of the

police and willingness to engage in counter-surveillance; it describes an intercepted call

between Ellis and Agurs in which Agurs tells Ellis, “I got your back. I’m right here. I’ll

call you if [the police] make a move.” Id. at 995. Thus, the Application demonstrated

Ellis’s direct involvement in the East Hills Bloods drug trafficking and “the difficulty of


                                              9
penetrating” that organization due to its “secretive nature” and “propensity towards

violence.” United States v. Williams, 124 F.3d 411, 418 (3rd Cir. 1997); see also United

States v. Bailey, 840 F.3d 99, 114–15 (3rd Cir. 2016) (“Continued physical surveillance

was likely to be fruitless because most of the associates were surveillance conscious,

avoiding locations that were visible to security cameras. They were also occasionally

aware of surveillance vehicles when they were present (some of these defendants even

alerted each other to the presence of surveillance vehicles).”).

         The District Court did not abuse its discretion in finding the Application contained

a sufficient factual predicate to allow the issuing court to conclude other investigative

techniques, even if used in relation to Ellis, had not and likely would not uncover the full

scope of the conspiracy. See United States v. Phillips, 959 F.2d 1187, 1190 (3rd Cir.

1992).

                                             III.

         Accordingly, we find the Application contained a statement of necessity and the

District Court did not abuse its discretion in finding the statement contained a sufficient

factual predicate. For these reasons, the judgment of conviction and sentence will be

affirmed.




                                              10
