United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided July 8, 2016
`
`Argued March 11, 2016
`
`
`No. 13-3019
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`HENRY BRANDON WILLIAMS,
`APPELLANT
`
`
`Consolidated with 13-3035, 14-3012
`
`
`Appeals from the United States District Court
`for the District of Columbia
`(No. 1:11-cr-00129-11)
`(No. 1:11-cr-00129-2)
`(No. 1:11-cr-00129-1)
`
`
`Stephen C. Leckar, Edward C. Sussman, and Julian S.
`Greenspun, all appointed by the court, argued the causes and
`filed the joint briefs for appellants.
`
`
`Nicholas P. Coleman, Assistant U.S. Attorney, argued
`the cause for appellee. With him on the brief were Elizabeth
`Trosman and Zia Faruqui, Assistant U.S. Attorneys.
`
`
`
`
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided July 8, 2016
`
`Argued March 11, 2016
`
`
`No. 13-3019
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`HENRY BRANDON WILLIAMS,
`APPELLANT
`
`
`Consolidated with 13-3035, 14-3012
`
`
`Appeals from the United States District Court
`for the District of Columbia
`(No. 1:11-cr-00129-11)
`(No. 1:11-cr-00129-2)
`(No. 1:11-cr-00129-1)
`
`
`Stephen C. Leckar, Edward C. Sussman, and Julian S.
`Greenspun, all appointed by the court, argued the causes and
`filed the joint briefs for appellants.
`
`
`Nicholas P. Coleman, Assistant U.S. Attorney, argued
`the cause for appellee. With him on the brief were Elizabeth
`Trosman and Zia Faruqui, Assistant U.S. Attorneys.
`
`
`
`
`
`2
`Elizabeth H. Danello, Assistant U.S. Attorney, entered an
`appearance.
`
`
`Before: ROGERS, PILLARD and WILKINS, Circuit
`Judges.
`
`
`
`TABLE OF CONTENTS
`
`Introduction ............................................................................. 2
`
`I. Facts and Prior Proceedings ............................................. 4
`
`II. Wiretap Issues ................................................................ 13
`
`III. Lay Opinion Testimony ................................................. 32
`
`IV. Wired Plea Agreement ................................................... 50
`
`V. Acquitted Conduct in Sentencing .................................. 53
`
`Conclusion ............................................................................ 54
`
`Introduction
`
`PER CURIAM: Henry Williams, Gezo Edwards, and
`William Bowman appeal their convictions by a jury of
`participation in a cocaine distribution scheme between
`January 2009 and April 2011. Following a multiyear
`investigation conducted by
`the Federal Bureau of
`Investigation (“FBI”) and local police, Appellants and eleven
`other individuals were indicted on various federal drug
`offenses. Williams, Edwards, and Bowman were indicted for
`conspiracy to distribute and possess with intent to distribute
`cocaine. Bowman and Edwards also were indicted for
`multiple counts of using, carrying, and possessing a firearm
`
`
`
`
`
`3
`during a drug trafficking offense. And Bowman was indicted
`for several counts of distribution of cocaine. Of the fourteen
`individuals named in the original indictment, only Williams,
`Edwards, and Bowman went to trial. The jury found all three
`Appellants guilty of drug conspiracy, found Bowman guilty
`of two firearms possession charges and three cocaine
`distribution charges, and acquitted Edwards of the firearms
`charges. Williams was sentenced to fifty-one months in
`prison, Bowman to forty-five years in prison, and Edwards to
`life imprisonment.
`
`Appellants challenge
`grounds:
`
`their convictions on multiple
`
`(1) They contend that a series of wiretaps used by the
`Government to uncover the criminal scheme at issue
`here were attained improperly, in violation of both the
`Fourth Amendment and relevant statutes, and that the
`district court erred in refusing to suppress all
`evidence gained from those wiretaps.
`
`(2) Williams contends that the district court erred in
`admitting portions of the lay opinion testimony
`provided by FBI Special Agent John Bevington, who
`was involved in the underlying investigation.
`
`(3) Williams argues that the district court improperly
`denied his motion for a judgment of acquittal,
`because there was insufficient evidence to support his
`conviction.
`
`(4) Williams challenges the district court’s denial of
`requests to instruct the jury on multiple conspiracies
`and
`to give a
`limiting
`instruction concerning
`Bowman’s and Edwards’s bad acts.
`
`
`
`
`
`4
`(5) Williams also contends that the district court erred in
`denying his motion to sever his trial from that of
`Bowman and Edwards.
`
`(6) Bowman contends that the Government violated his
`Fifth Amendment due process rights by improperly
`“wiring” his plea agreement to a plea by Williams.
`
`(7) Edwards contends that the district court violated his
`Fifth and Sixth Amendment rights by increasing his
`sentence based on his possession of a firearm even
`though the jury had acquitted him of that conduct.
`
` We affirm the judgments of conviction, with one
`exception. We hold that the district court erred in admitting
`portions of Agent Bevington’s lay opinion testimony and that
`this error was not harmless. Therefore, we reverse Williams’s
`conviction and remand his case to the district court for further
`proceedings. We do not reach Williams’s other challenges to
`his conviction other than to hold that the district court did not
`err in denying his motion for a judgment of acquittal.
`
`I. Facts and Prior Proceedings
`
`A.
`
`In late 2009, a joint task force of the FBI and the District
`of Columbia Metropolitan Police Department began
`investigating a suspected cocaine distribution operation based
`in Washington, D.C. In an effort to uncover the nature, scope,
`and membership of that operation, investigating agents
`reviewed pen
`registers of
`telephone calls, arranged
`undercover drug buys, obtained information from confidential
`sources, and conducted extensive physical surveillance. After
`concluding that traditional methods alone were insufficient to
`investigate the operation, the Government sought, and
`eventually obtained, judicial authorization for wiretaps on
`
`
`
`
`
`5
`three separate phone numbers associated with Bowman, who
`the Government suspected was a ringleader of the drug
`trafficking. See United States v. Edwards, 889 F. Supp. 2d 1,
`5-6 (D.D.C. 2012).
`
`The first of those wiretaps, which the Government
`obtained on December 7, 2010, authorized the interception of
`wire communications over Target Telephone 1 (“TT1”). See
`id. at 5. Just a few weeks later, however, the Government
`terminated that wiretap due to lack of activity on the TT1
` See id. The Government did not seek
`phone line.
`reauthorization of the TT1 wiretap. Instead, it applied for a
`separate wiretap on Target Telephone 2 (“TT2”). See id. at 5-
`6. Special Agent Timothy Pak submitted an affidavit in
`support of the TT2 wiretap, averring that Bowman was
`utilizing the TT2 phone line “to discuss and facilitate drug
`trafficking in the Washington, D.C. area.” Gov’t’s Jan. 13,
`2011, TT2 Wiretap Affidavit (“Jan. 13 TT2 Aff.”) ¶ 7. Agent
`Pak’s affidavit asserted that the TT2 wiretap was necessary
`because
`the Government’s
`“[n]ormal
`investigative
`procedures,” id. ¶ 35 – including the use of confidential
`sources and undercover officers, physical surveillance, trash
`covers, and pen registers – had failed to reveal the full scope
`and nature of the drug trafficking operation. See id. ¶¶ 35-48.
`On January 13, 2011, the district court authorized the TT2
`wiretap for an initial thirty days. See Edwards, 889 F. Supp.
`2d at 6.
`
`
`
`At the Government’s requests, the district court granted
`
`three extensions of the TT2 wiretap. See id. The Government
`sought the first extension on February 14, 2011, relying on an
`updated affidavit from Agent Pak. That affidavit emphasized
`that reauthorization of the TT2 wiretap was necessary
`because, even after using the TT2 wiretap for a month
`alongside traditional investigative tools, agents had yet to
`
`
`
`
`
`6
`uncover the full scope and membership of the drug trafficking
`operation. See Gov’t’s Feb. 14, 2011, TT2 Wiretap Affidavit
`(“Feb. 14 TT2 Aff.”) ¶¶ 34-55. The district court agreed and
`promptly reauthorized the TT2 wiretap for an additional thirty
`days. See Edwards, 889 F. Supp. 2d at 6.
`
`On March 11, 2011, the Government requested another
`extension of the TT2 wiretap. Agent Pak’s March 11, 2011,
`affidavit did not name Edwards – another suspected leader of
`the drug trafficking operation – as a potential target of the
`TT2 wiretap reauthorization. In that affidavit, Agent Pak
`reiterated his belief that the TT2 wiretap remained necessary
`to
`fill evidentiary gaps
`left by normal
`investigative
`procedures. See Gov’t’s March 11, 2011, TT2 Wiretap
`Application (“Mar. 11 TT2 Aff.”) ¶¶ 25-41. The district court
`obliged and, on March 11, 2011, reauthorized the TT2 wiretap
`for another thirty-day period. See Edwards, 889 F. Supp. 2d
`at 6.
`
`The Government then sought and obtained a third and
`final thirty-day reauthorization of the TT2 wiretap on April 8,
`2011, again based on Agent Pak’s view that the TT2 wiretap
`was necessary to investigate the full scope of the drug
`trafficking operation. See id.; Gov’t’s April 8, 2011, TT2
`Wiretap Affidavit (“Apr. 8 TT2 Aff.”) ¶¶ 31-50.
`
`On March 21, 2011, while the TT2 wiretap was still
`
`operational on its second extension, the Government sought
`an order authorizing the interception of wire communications
`to and from Target Telephone 3 (“TT3”), another phone
`number associated with Bowman. See Edwards, 889 F. Supp.
`2d at 6. As in his other affidavits, Agent Pak attested that the
`TT3 wiretap was necessary to determine the full nature and
`scope of the conspiracy, which called for further investigation
`notwithstanding the TT2 wiretap. See Gov’t’s Mar. 21, 2011,
`
`
`
`
`
`7
`TT3 Wiretap Affidavit (“Mar. 21 TT3 Aff.”) ¶¶ 27-43.
`Notably, the Government’s TT3 wiretap application was the
`first to name Edwards as a possible target of the wiretap. See
`id. ¶ 10(c). The district court authorized the TT3 wiretap,
`and, on April 15, 2011, reauthorized it for an additional thirty
`days. See Edwards, 889 F. Supp. 2d at 6.
`
`Between January and April 2011, investigating agents
`
`employed the TT2 and TT3 wiretaps to intercept numerous
`telephone calls between Bowman, Edwards, Williams, and
`several other members of the suspected drug trafficking
`operation. Toward the end of the investigation, agents
`executed search warrants on a storage unit and various
`residences connected to Bowman and Edwards and seized
`cocaine,
`drug
`paraphernalia,
`several
`firearms,
`and
`ammunition.
`
`B.
`The Government arrested Williams, Edwards, and
`
`Bowman along with several other individuals and indicted
`them for various drug-related offenses. The operative
`superseding indictment charged Williams, Edwards, Bowman,
`and several other men with conspiracy to distribute and
`possess with intent to distribute five kilograms or more of
`cocaine, in violation of 21 U.S.C. § 846. The superseding
`indictment also charged Bowman and Edwards with two
`counts of using, carrying, and possessing a firearm during a
`drug
`trafficking offense,
`in violation of 18 U.S.C.
`§ 924(c)(1).1 It charged Bowman with an additional count of
`firearm possession and three counts of unlawful distribution
`
`
`1 Those two firearm possession counts were later merged into one
`before the case was submitted to the jury.
`
`
`
`
`
`8
`of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
`841(b)(1)(C).2
`
`Appellants filed several pretrial motions during the early
`
`stages of the case. Williams moved to sever his trial from that
`of his co-defendants. Williams insisted that trying him
`alongside co-defendants facing much more serious charges
`would risk prejudicial spillover and allow the prosecution to
`benefit from guilt by association. The district court denied
`that motion, concluding that Williams failed to show a serious
`risk that a joint trial would prevent the jury from making a
`reliable judgment about his guilt or innocence. Around the
`same time, Bowman and Edwards moved to suppress
`evidence obtained from the TT2 and TT3 wiretaps on the
`ground that, in obtaining judicial approval of the wiretaps, the
`Government failed to satisfy the requirements of the Fourth
`Amendment and Title III of the Omnibus Crime Control and
`Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2510 et seq.
`See Edwards, 889 F. Supp. 2d at 4-5.3 The district court
`denied those suppression motions. Id. at 18. It held that the
`TT2 and TT3 wiretaps, and all subsequent reauthorizations,
`satisfied Title
`III’s “necessity”
`requirement because
`traditional investigative techniques were insufficient to reveal
`the full scope of the suspected drug trafficking operation. Id.
`at 8-13. The district court further concluded that Appellants
`were not entitled to a hearing under Franks v. Delaware, 438
`U.S. 154 (1978), because they failed to make a substantial
`showing that the purported omissions in the Government’s
`
`2 The superseding indictment also charged Bowman with two
`counts of unlawful distribution of five grams or more of cocaine
`base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii),
`but the Government later dismissed those counts.
`
` Williams filed a notice to adopt those motions.
`
` 3
`
`
`
`
`
`9
`wiretap applications were material. Edwards, 889 F. Supp. 2d
`at 14-18. Edwards filed more motions, some counseled and
`some pro se, reiterating his earlier claims and also arguing
`that agents violated Title III’s “naming” and “prior
`applications” provisions. The district court denied each of
`those motions in a series of written memoranda and orders.
`See, e.g., Edwards, 889 F. Supp. 2d at 18-23 (D.D.C. Sept.
`16, 2012) (denying pre-trial motion for reconsideration); id. at
`23-29 (D.D.C. Oct. 23, 2012) (same); United States v.
`Edwards, 904 F. Supp. 2d 7, 9-11 (D.D.C. 2012) (denying pro
`se motion for reconsideration); United States v. Edwards, 943
`F. Supp. 2d 125, 127-29 (D.D.C. 2013) (denying pro se
`motion for new trial and other post-trial motions); United
`States v. Edwards, 994 F. Supp. 2d 1, 4-7 (D.D.C. 2013)
`(denying pro se post-trial motions); United States v. Edwards,
`994 F. Supp. 2d 7, 9-10 (D.D.C. 2014) (same).
`
`
`In the months leading up to trial, Bowman entered into
`plea negotiations. The Government offered Bowman a
`“wired” plea deal. Under the initial version of that deal,
`Bowman could plead guilty, and the Government would
`recommend a prison sentence capped at twenty-three years,
`but only if Williams also pleaded guilty to the drug
`conspiracy charge. If Williams pleaded guilty, he, in turn,
`would face no mandatory minimum and likely would face a
`guidelines sentencing range of twenty-seven to thirty-three
`months imprisonment. Bowman’s counsel told the court that
`Bowman was willing to accept his half of the deal but “would
`hope that [the Government] would unwire it” from the
`condition that Williams also plead guilty. Status Hr’g Tr. 75
`(Sept. 7, 2012). A month later, during jury selection, the
`Government offered a revised plea agreement to Bowman.
`Under that revised agreement, Bowman could plead guilty to
`a sentence of twenty-five years imprisonment, contingent
`upon Williams’s acceptance of a plea offer of a thirty to
`
`
`
`
`
`10
`thirty-seven month prison sentence. On the eve of trial,
`Bowman’s counsel notified the district court that his client did
`“not wish to engage in any discussions with the Government
`and does not wish to plead guilty based upon the offer that has
`been made to him.” Trial Tr. 7 (Oct. 22, 2012). Williams, for
`his part, stated on the record that he also would not accept the
`Government’s plea offer.
`
`C.
`All three Appellants proceeded to trial. During its case-
`
`in-chief, the Government played audio recordings of phone
`calls obtained
`from
`the wiretaps, showed numerous
`surveillance videos,
`and presented
`testimony
`from
`investigating agents, narcotics experts, and cooperating
`witnesses. The Government offered evidence to show that
`Edwards and Bowman were the leaders of a cocaine-
`trafficking network in the Washington, D.C., area. According
`to one of the prosecution’s cooperating witnesses, Edwards
`and Bowman repeatedly acquired large quantities of cocaine
`from California and used cross-country shipping pods to
`transport it to the Washington, D.C., area. The evidence
`suggested that they stored the cocaine in various locations,
`including an apartment in Capitol Heights, Maryland, and
`storage facilities in Hyattsville, Maryland. The Government
`adduced testimony that Edwards processed, weighed, and
`repackaged the cocaine into smaller blocks for resale to mid-
`level drug dealers.
` Bowman, in turn, distributed the
`repackaged cocaine to those mid-level dealers, usually on
`consignment. Another cooperating witness testified that
`Bowman typically would give the drugs to him “on
`consignment,” and that he later would pay Bowman back with
`the proceeds earned from selling the drugs to individual
`customers. Trial Tr. 9, 21 (Nov. 5, 2012, p.m. session). The
`prosecution’s evidence, including wiretap recordings and
`surveillance videos, also showed that Williams interacted with
`
`
`
`
`
`11
`the other defendants during the early half of 2011. Williams
`repeatedly called Bowman between January and March 2011,
`and met with Bowman on several occasions in mid-March
`2011, including on March 12, March 15, and March 23,
`shortly after Bowman and Edwards, on or before March 10,
`had received a large shipment of cocaine.
`
`The Government also presented the testimony of FBI
`Special Agent John Bevington, one of the lead investigating
`officers. On the second day of trial, the district court granted
`the Government’s motion to qualify Agent Bevington as an
`expert witness “in the interpretation of words and phrases
`used by drug traffickers in this particular case.” Trial Tr. 67
`(Oct. 24, 2012, a.m. session). In his capacity as an expert on
`narcotics terminology, Agent Bevington translated many
`“coded” words that appeared in conversations between
`Bowman and other members of the alleged drug conspiracy.
`Over defense counsel’s objections, the district court also
`permitted Agent Bevington to provide lay opinion testimony
`interpreting recorded calls between Bowman, Williams, and
`other co-conspirators.
`
`
`
`D.
`At the close of all the evidence, Williams moved for a
`
`judgment of acquittal, chiefly on the ground that the evidence
`was insufficient to prove his participation in the charged drug
`conspiracy.
` Drawing all
`inferences
`in favor of
`the
`prosecution, the district court orally denied the motion and
`found that a reasonable jury could find that Williams
`participated in the alleged conspiracy based on the nature and
`frequency of his contacts with Bowman. See Trial Tr. 96-97
`(Nov. 13, 2012, p.m. session). During the final days of the
`trial, Edwards and Williams asked the district court to give a
`“multiple conspiracies instruction” to the jury, arguing that
`the prosecution’s evidence, at most, established
`their
`
`
`
`
`
`12
`involvement in a different drug conspiracy from the one
`alleged in the superseding indictment. The district court
`rejected that request and declined to give the proposed
`instruction. See generally Final Jury Instructions, United
`States v. Edwards, No. 11-cr-129 (D.D.C.), ECF No. 591.
`After resolving other pending trial motions and hearing the
`parties’ closing statements, the district court instructed the
`jury and then submitted the case to the jury for deliberation.
`
`
`On November 16, 2012, the jury began its deliberations
`and delivered verdicts four days later. The jury found
`Bowman, Edwards, and Williams guilty of
`the drug
`conspiracy charge. On that charge, the jury held Bowman and
`Edwards responsible for five kilograms or more of cocaine
`and held Williams responsible for an amount less than 500
`grams. The jury also found Bowman guilty of two firearm
`possession charges and all
`three
`remaining cocaine
`distribution charges. The jury acquitted Edwards on the
`firearm possession charge.
`
`During Edwards’s sentencing hearing, the district court
`granted the Government’s request for a two-level increase in
`Edwards’s guidelines calculation
`for possession of a
`dangerous weapon, pursuant to U.S. Sentencing Guideline
`§ 2D1.1(b)(1). Even though the jury had acquitted him on the
`firearm possession count, the district court found by a
`preponderance of the evidence that Edwards possessed a
`firearm in furtherance of the drug trafficking conspiracy. The
`district court sentenced Edwards to life imprisonment,
`Williams to fifty-one months in prison for the conspiracy
`charge, and Bowman to an aggregate prison term of forty-five
`years in prison for his offenses. Appellants timely appealed.
`
`
`
`
`
`
`
`
`
`13
`II. Wiretap Issues
`
`Appellants’ first challenge to their convictions rests on
`their contention that many of the Government’s wiretap
`applications were flawed, requiring the suppression of all
`evidence gained from those wiretaps. They rest that challenge
`on four grounds. First, they argue that the district court erred
`by refusing to hold a hearing, pursuant to Franks v. Delaware,
`438 U.S. 154, to determine whether the Government omitted
`material information from its wiretap applications. Second,
`they claim that by omitting that information, the Government
`violated the necessity requirement of Title III. Third, they
`argue that the information the Government did disclose was
`insufficient to establish the necessity of the wiretaps. And
`fourth, Edwards asserts that the Government unlawfully failed
`to name him in its March 11, 2011, wiretap affidavit. After
`setting forth the governing legal principles, we address each
`of these contentions in turn.
`
`A.
`A defendant may seek to suppress the evidence gathered
`as a result of wiretap surveillance under two different legal
`theories: she can argue that the wiretap violated her rights
`under the Fourth Amendment, or that the wiretap failed to
`comply with the requirements of Title III. Appellants argue
`both here.
`
`1. Appellants’ Fourth Amendment claim is based on the
`Supreme Court’s decision in Franks v. Delaware, 438 U.S.
`154. Franks involved a defendant’s challenge to a warrant
`affidavit that, according to the defendant, contained false
`statements. Id. at 157-58. The Court held that “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
`
`
`
`
`
`14
`warrant affidavit, and if the allegedly false statement is
`necessary to the finding of probable cause, the Fourth
`Amendment requires that a hearing be held at the defendant’s
`request.” Id. at 155-56. This court has thereafter referred to
`such hearings as “Franks hearings.” See, e.g., United States
`v. Maynard, 615 F.3d 544, 550-51 (D.C. Cir. 2010); United
`States v. Becton, 601 F.3d 588, 594 (D.C. Cir. 2010). To
`obtain a Franks hearing, a movant “must show that (1) the
`affidavit contained false statements; (2) the statements were
`material to the issue of probable cause; and (3) the false
`statements were made knowingly and intentionally, or with
`reckless disregard for the truth.” Becton, 601 F.3d at 594
`(internal quotation marks omitted).
`
`This court has extended Franks to apply not only where
`the Government is alleged to have made false statements but
`also where a defendant alleges
`that
`the Government
`“knowingly and intentionally (or with reckless disregard)
`omitted a fact that would have defeated probable cause.”
`United States v. Glover, 681 F.3d 411, 419 (D.C. Cir. 2012);
`accord United States v. Spencer, 530 F.3d 1003, 1007 (D.C.
`Cir. 2008) (stating that “suppression also remains ‘an
`appropriate remedy if the magistrate or judge in issuing a
`warrant was misled by information in an affidavit,’” and
`noting that “[t]his latter exception also has been held to apply
`under certain circumstances to material omissions” (quoting
`United States v. Leon, 468 U.S. 897, 923 (1984))). Although
`Franks involved a probable cause determination concerning a
`warrant affidavit, this court has applied Franks in the wiretap
`context as well. See, e.g., Maynard, 615 F.3d at 550-51;
`Becton, 601 F.3d at 597-98.
`
`Yet not just any omission is enough. This court’s
`precedent is clear that to implicate the Fourth Amendment,
`and to require a Franks hearing, the omission alleged must be
`
`
`
`
`
`15
`such that, had the omitted information been provided to the
`authorizing court, it would have altered the court’s conclusion
`that the wiretap was necessary. See, e.g., Becton, 601 F.3d at
`597 (finding “the Government’s failure to disclose certain
`information bearing on the credibility of two confidential
`sources” unproblematic where the inclusion of that additional
`information “was [not] material” and “would not have
`defeat[ed] probable cause”
`(internal quotation marks
`omitted)). If a defendant makes such a showing, she would
`then be entitled to a hearing before the district court to
`determine whether suppression of that wiretap evidence is
`required under the Fourth Amendment. See Franks, 438 U.S.
`at 171-72. The court has not resolved whether a district
`court’s decision not to hold a Franks hearing is reviewed
`under the clearly erroneous or de novo standard of review.
`See Becton, 601 F.3d at 594. It is unnecessary to do so here
`because, under either standard of review, we would find no
`error by the district court.
`
`2. Appellants also contest the wiretaps at issue here by
`arguing that the Government failed to comply with the
`provisions of Title III in seeking the wiretap.
`
`To approve a wiretap, a judge must determine that the
`wiretap is supported by both probable cause and necessity. 18
`U.S.C. § 2518(3); Glover, 681 F.3d at 420. Appellants do not
`challenge the Government’s probable cause showing,4 but
`
`
`4 To demonstrate probable cause, the Government must show that
`there is probable cause for belief that: (1) “an individual is
`committing, has committed, or is about to commit a particular
`offense”; (2) “particular communications concerning that offense
`will be obtained through such interception”; and (3) “the facilities
`from which . . . the wire . . . communications are to be intercepted
`
`
`
`
`
`
`16
`instead argue that the affidavits the Government submitted to
`support its wiretap applications did not demonstrate that each
`wiretap was necessary.
`
`To demonstrate that a wiretap is necessary, Title III
`requires the Government to provide “a full and complete
`statement as to whether or not other investigative procedures
`have been tried and have 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). The authorizing court must then
`determine 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” on the basis of this
`statement. Id. § 2518(3)(c). This necessity requirement is
`satisfied when “traditional investigative techniques have
`proved inadequate to reveal the operation’s full nature and
`scope.” Becton, 601 F.3d at 596 (internal quotation marks
`omitted). In assessing the necessity of a wiretap application,
`courts must “giv[e] close scrutiny to applications challenged
`for noncompliance and
`.
`.
`. reject[] generalized and
`conclusory statements that other investigative procedures
`would prove unsuccessful.” United States v. Johnson, 696
`F.2d 115, 123 (D.C. Cir. 1982) (quoting United States v.
`Williams, 580 F.2d 578, 588 (D.C. Cir. 1978)). “Nonetheless,
`the statutory command was not designed to foreclose
`electronic surveillance until every other imaginable method of
`investigation has been unsuccessfully attempted.” Williams,
`580 F.2d at 588 (internal quotation marks omitted). It is
`sufficient for the Government to show that “other techniques
`are impractical under the circumstances and that it would be
`
`
`are being used . . . in connection with the commission of such
`offense.” 18 U.S.C. § 2518(3)(a)-(b), (d).
`
`
`
`
`
`17
`those avenues of
`to require pursuit of
`unreasonable
`investigation.” Id. (internal quotation marks omitted).
`
`An “aggrieved person” may move to suppress the
`contents of any intercepted communication and any evidence
`derived therefrom where “the communication was unlawfully
`intercepted.” 18 U.S.C. § 2518(10)(a)(i). This provision
`“was not intended to reach every failure to follow statutory
`procedures,” but applies where there is a “failure to satisfy
`any of
`those statutory requirements
`that directly and
`substantially implement the congressional intention to limit
`the use of intercept procedures.” United States v. Chavez, 416
`U.S. 562, 574-75 (1974) (quoting United States v. Giordano,
`416 U.S. 505, 527 (1974)). This includes “the statutorily
`imposed preconditions to judicial authorization” of a wiretap,
`such as necessity. United States v. Donovan, 429 U.S. 413,
`436 (1977) (citing 18 U.S.C. § 2518(3)(c)); see also United
`States v. Carter, 449 F.3d 1287, 1292-93 (D.C. Cir. 2006).
`
`An affidavit offered in support of a wiretap application
`enjoys a “presumption of validity.” Maynard, 615 F.3d at
`550 (quoting Franks, 438 U.S. at 171) (concerning affidavits
`in support of search warrants). The court reviews an
`authorizing court’s necessity determination for abuse of
`discretion, but does not give a second layer of deference to a
`district court’s assessment of the authorizing court’s necessity
`determination. See Glover, 681 F.3d at 419-20. In assessing
`a district court’s denial of a wiretap suppression motion, the
`court reviews the district court’s legal conclusions de novo
`and its factual findings for clear error. United States v.
`Eiland, 738 F.3d 338, 347 (D.C. Cir. 2013).
`
`B.
`We turn now to Appellants’ arguments seeking to
`suppress the evidence derived from the wiretaps.
`
`
`
`
`
`18
`1. Appellants first argue that the district court erred by
`to hold a Franks hearing concerning certain
`refusing
`omissions from the Government’s wiretap applications.
`Because the omissions were not material, we reject the
`argument.
`
`Appellants allege, and the Government does not dispute,
`that the Government’s wiretap affidavits did not disclose two
`“investigative procedures,” 18 U.S.C. § 2518(1)(c), related to
`its investigation of Bowman. First, the Government’s initial
`three applications seeking to wiretap Bowman’s TT2 phone
`failed to disclose the existence of a pen register5 on TT3,
`another of Bowman’s phones. See generally Jan. 13 TT2
`Aff.; Feb. 14 TT2 Aff.; Mar. 11 TT2 Aff. The Government
`had been operating the TT3 pen register for nearly a year
`when it first sought to wiretap Bowman’s TT2 phone, and by
`March 2011, when it submitted its third application for a
`wiretap on TT2, the Government had recorded over two
`thousand activations on TT3. See Mar. 21 TT3 Aff. ¶ 23.
`
`Second, in the March 11 Affidavit, the Government did
`not disclose the existence of an additional confidential source,
`CS-4, who had known Bowman and Edwards for over ten
`years, and who, in late February 2011, informed the
`Government that he or she knew that the two were “working
`in concert to traffic[] in narcotics.” Apr. 8 TT2 Aff. ¶ 35.
`
`
`5 “A pen register is a mechanical device that records the numbers
`dialed on a telephone by monitoring the electrical impulses caused
`when the dial on the telephone is released. It does not overhear oral
`communications and does not indicate whether calls are actually
`completed.” United States v. N.Y. Tel. Co., 434 U.S. 159, 161 n.1
`(1977).
`
`
`
`
`
`19
`these omissions, however, would have
`Neither of
`“defeat[ed] probable cause,” and therefore, the district court
`was not required to hold a Franks hearing concerning those
`omissions. Becton, 601 F.3d at 597 (quoting Spencer, 530
`F.3d at 1007). While pen registers cannot “convey to the
`government the substance of [Bowman’s] calls,” Eiland, 738
`F.3d at 349, they can nonetheless reveal relevant and
`important information. And sometimes they uncover data that
`can make a wiretap unnecessary.6 Here, however, Appellants
`have not shown that pen register data rendered the wiretaps
`unnecessary. See Franks, 438 U.S. at 171-72.
`
`The same is true of the Government’s use of CS-4. CS-4
`provided some information to the Government concerning
`Bowman and Edwards’s relationship and participation in drug
`trafficking. But that information was not sufficient to
`
`6 See, e.g., Smith v. Maryland, 442 U.S. 735, 737 (1979) (police
`obtained a search warrant through use of a pen register, where pen
`register demonstrated petitioner was respons
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