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United States v. Whittler

United States District Court, N.D. Illinois, Eastern Division

January 5, 2015

UNITED STATES OF AMERICA, Respondent,
v.
BRUCE WHITTLER, Petitioner.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

On September 22, 2014, pro se Petitioner Bruce Whittler filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Whittler's § 2255 motion and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

PROCEDURAL BACKGROUND

On December 14, 2010, a grand jury returned an indictment charging Whittler with one count of conspiracy to knowingly and intentionally possess with intent to distribute and to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846 (Count One), three counts of knowingly and intentionally using a communications facility, namely, a cellular telephone, in committing a narcotics felony in violation of 21 U.S.C. § 843(b) (Counts Two, Four, and Six), and two counts of knowingly and intentionally possessing with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Three and Five). On October 13, 2011, Whittler pleaded guilty to Count One pursuant to a written plea agreement. On July 16, 2012, the Court sentenced Whittler to 92 months in prison.

On July 27, 2012, Whittler filed a notice of appeal. On appeal, Whittler argued that the Court miscalculated his guidelines range by applying an upward adjustment for possession of a dangerous weapon pursuant to U.S.S.G. § 2D1.1(b)(1). On June 27, 2013, the United States Court of Appeals for the Seventh Circuit affirmed Whittler's sentence. See United States v. Whittler, No. 12-2756, 528 Fed.Appx. 623 (7th Cir. June 27, 2013) (unpublished). On September 22, 2014, Whittler filed the present pro se § 2255 motion. Construing his pro se § 2255 motion liberally, see Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014), Whittler brings a Sixth Amendment ineffective assistance of trial counsel claim based on counsel's failure to move to suppress intercepted calls on the ground that the government failed to establish the necessity for a wiretap.

FACTUAL BACKGROUND

In March 2009, Whittler began selling crack cocaine supplied by his cousin, Robert Jones. On three occasions during the summer of 2009, the government submitted applications for orders authorizing the interception of wire communications regarding two phones used by Robert Jones and one phone use by another co-conspirator, Marcus Jones.

I. June 1, 2009, Application and Affidavit

On June 1, 2009, the government submitted applications for orders authorizing the interception of wire communications regarding two phones, Target Phone 1, which was used by Marcus Jones, and Target Phone 2, which was used by Robert Jones. The applications were supported by FBI Special Agent Christopher Soyez's affidavit. In particular, Agent Soyez's affidavit described the FBI's investigation to date, which included that a confidential source ("CS-1") made three cocaine purchases from Marcus Jones, one cocaine purchase from Marcus Jones and Robert Jones together, and another cocaine purchase from Robert Jones. Further, Soyez's affidavit described information that CS-1 provided regarding Robert Jones, Marcus Jones, and some of their associates. The affidavit, however, did not include any information regarding Whittler, who had not been identified as a violator or interceptee at that time.

In his June 1, 2009, affidavit, Agent Soyez also explained the need for interception of wire communications as the "only available investigative technique that has a reasonable likelihood of securing evidence necessary to prove beyond a reasonable doubt that the Violators and others as yet unknown" were committing drug offenses. More specifically, he discussed CS-1's information and the limitations on CS-1's ability to provide additional information, including (a) CS-1's not being in a position to purchase from or identify Robert Jones' supplier(s), and (b) CS-1's inability to engage in narcotics purchases from others purchasing drugs from Robert Jones and Marcus Jones.

On June 1, 2009, the Chief Judge entered orders authorizing the interception of wire communications over Target Phone 1 and Target Phone 2.

II. July 20, 2009, Application and Affidavit

On July 20, 2009, the government submitted an application for orders authorizing the interception of wire communications regarding Target Phone 4-a phone that Robert Jones had recently begun using. Another Agent Soyez's affidavit supported this application. More specifically, Agent Soyez's June 20, 2009, affidavit described the FBI's investigation to date, including calls intercepted over Target Phone 1 between Marcus Jones and Robert Jones and calls between Marcus Jones and Whittler. In addition, Agent Soyez averred that no calls were intercepted on Target Phone 2 due to Robert Jones ceasing the use of that phone shortly before the June 1, 2009, order. Further, Agent Soyez described two calls between Marcus Jones and Whittler. In one call on June 9, 2009, Whittler and Marcus Jones discussed whether Marcus Jones was holding any narcotics and whether Marcus Jones asked Whittler to bring him narcotics. In another call made on June 24, 2009, Whittler warned Marcus Jones not to go to a bar in Robbins, Illinois because police were there.

Furthermore, Agent Soyez averred that there was a need for continuing interception of wire communications. Specifically, he stated that interception of Target Phone 4 was necessary to identify Robert Jones' source of supply and customers. The affidavit also discussed CS-1 and his inability to assist in providing evidence against anyone besides Robert Jones or Marcus Jones. On July 20, 2009, ...


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