USA v. Booker et al, 1:11-cr-00255, No. 576 - Docket Alarm

USA v. Booker et al, 1:11-cr-00255, No. 576 - Docket Alarm

Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 1 of 53 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA ...

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Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION UNITED STATES OF AMERICA

v.

CRIMINAL CASE NO. 1:11-cr-00255-TWT-RGV

STACEY DOOLEY and ASHLEY HENDERSON

ORDER FOR SERVICE OF MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Attached is the Report and Recommendation of the United States Magistrate Judge made in accordance with 28 U.S.C. § 636(b)(1) and N.D. Ga. Cr. R. 58.1(A)(3)(a) and (b). Let the same be filed and a copy, with a copy of this Order, be served upon counsel for the parties. Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within fourteen (14) days of receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for

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Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 2 of 53

review by the District Court. Failure to object to this Report and Recommendation waives a party’s right to review. Fed. R. Crim. P. 59(b)(2). Pursuant to Title 18, U.S.C. § 3161(h)(1)(D) and (H), the above-referenced fourteen (14) days allowed for filing objections is EXCLUDED from the computation of time under the Speedy Trial Act, whether or not objections are actually filed. The Clerk is DIRECTED to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period. IT IS SO ORDERED and DIRECTED, this 30th day of January, 2013. .

RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE

2

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Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 3 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION UNITED STATES OF AMERICA

v.

CRIMINAL CASE NO. 1:11-cr-00255-TWT-RGV

STACEY DOOLEY and ASHLEY HENDERSON MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Defendants Stacey Dooley (“Dooley”) and Ashley Henderson (“Henderson”), collectively referred to herein as “defendants,” are charged along with seven other co-defendants in a fifteen count indictment. [Doc. 312].1 Dooley and Henderson are charged with (1) unlawfully obstructing, delaying, and interfering with interstate commerce by taking personal property in the custody and control of armored car couriers by means of actual and threatened force, violence, and fear of injury, and conspiring to do so, in violation of 18 U.S.C. §§ 1951 and 2; (2) carrying and using a firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii)

1

The cited document and page numbers in this Report and Recommendation refer to the document and page numbers shown on the Adobe file reader linked to this Court’s electronic filing database (CM/ECF).

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Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 4 of 53

and 2; and (3) causing the death of a person through using a firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(j)(1), and 2. See [Id.]. Defendants have filed motions to suppress intercepted communications, [Doc. 247 (Henderson’s motion); Doc. 252 (Dooley’s motion)], and the government has filed a consolidated response to these motions, see [Doc. 341]. For the following reasons, it is hereby RECOMMENDED that the motions to suppress intercepted communications, [Docs. 247, 252], be DENIED. I. FACTUAL BACKGROUND A.

Wiretap for Target Telephone #1 (404-667-4900) (“First Wiretap”) On March 18, 2011, the Acting District Attorney for the Gwinnett Judicial

Circuit submitted an “Application for an Order Authorizing the Interception of Wire Communications” to a Gwinnett County Superior Court Judge. See [Doc. 341-1 at 2-15]. An affidavit signed by Detective Andrew Whaley (“Detective Whaley”) of the Gwinnett County Police Department (“GCPD”), was submitted in support of the application.2 [Id. at 6, 16]. The application sought to intercept communications from 2

Detective Whaley stated that he had been employed by the GCPD since June of 2007 and had been a police officer since January of 2000. [Doc. 341-1 at 17]. He stated that he had worked for four years on narcotics investigations, prostitution investigation, burglary investigations, and robbery investigations. [Id.]. Detective Whaley averred that he had attended “Basic Investigations courses,” received 2325 hours of Peace Officer Standards and Training (“POST”) instruction, and that he had been the lead investigator in “numerous drug investigations and prostitution investigations” when he worked for a different police department, that he had been 2

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Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 5 of 53

“Target Telephone #1” (404-667-4900) used by co-defendant Quentin Booker (“Booker”), and the application specified that an investigation had produced probable cause to believe that Target Telephone #1 was being used to facilitate criminal offenses, specifically robbery and armed robbery, and that “Booker, an unidentified black male referred to as ‘Chicken,’ and others known and as yet unknown” were involved in the offenses. [Id. at 2-3]. 1.

Probable Cause in the First Wiretap Affidavit

In the affidavit submitted in support of the first wiretap application, Detective Whaley described in great detail the background investigation leading to the request for the wiretap order. See [id. at 24-30]. Specifically, the affidavit described the investigation of three armored truck robberies in Gwinnett County, taking place at a Bank of America on November 11, 2010 (“Bank of America robbery”); a Wells the lead investigator in “numerous burglary and robbery investigations while working for [GCPD],” and that he had been associated with more than two hundred felony charges as a result of those investigations. [Id.]. He further affirmed that his investigations had resulted in “arrests, search warrants and seizure of [illegal drugs], money, guns, and personal property of victims” and that he was “familiar with how [] drug organizations operate as well as burglary and robbery organizations.” [Id.]. He stated that he was “familiar with the ways in which armed robbers conduct their business, including the various means and method by which armed robbers and their criminal organizations use cellular telephone, text messaging, digital display paging devices and calling cards to facilitate armed robberies; and their use of numerical codes and code words to conduct their transactions.” [Id. at 17-18]. He testified that in his experience “armed robbers often obtain cellular telephones in fictitious names, and/or the names of third parties in an effort to conceal their drug trafficking [sic] activities from law enforcement.” [Id. at 18]. 3

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Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 6 of 53

Fargo on November 29, 2010 (“Wells Fargo robbery”); and at the Mall of Georgia on December 7, 2010 (“Mall of Georgia robbery”). [Id. at 24-29]. The affidavit noted how similarities in the Bank of America robbery and the Wells Fargo robbery led officers to believe that the two may be related, [id. at 25-28],3 and how a string of armored truck robberies eventually led law enforcement agents from the Federal Bureau of Investigation, DeKalb County, Marietta, and the City of Atlanta to pool their resources with the GCPD to share information regarding their investigations, [id. at 33]. The affidavit described how the investigators were able to identify vehicles that were involved in these robberies, and how this search eventually led them to identify individuals suspected of being involved in the crimes. See generally [id. at 26-32]. Specifically, witnesses at the Bank of America robbery were able to get the tag number for the getaway vehicle, a blue Chevy Tahoe (“the Tahoe”), which had been stolen from the Atlanta Medical Center (“AMC”) in Fulton County earlier on the morning of that robbery. [Id. at 26]. Surveillance video from the AMC parking 3

In each robbery, the courier or “hopper” from the armored truck company was mid-way through loading the cassettes of money into the ATM when a black male wearing a hoodie and carrying a gun came up behind the courier and told him or her to “open” the ATM. Compare [Doc. 341-1 at 25], with [id. at 27]. In each case, the suspect or suspects then grabbed the unloaded cassettes from the ATM, but were unable to pull the previously loaded cassettes out, breaking off the handles. Compare [id. at 25], with [id. at 27]. The robber then fled to a neighboring parking lot where a car was waiting for him. Compare [id. at 25-26], with [id. at 27-28]. 4

Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 7 of 53

lot showed that a dark-colored passenger car, which appeared to be a late model Buick LaCrosse (“the LaCrosse”), and a maroon SUV were in the AMC parking lot near where the Tahoe was parked. [Id. at 28]. After a meeting between the driver of the LaCrosse and an occupant of the maroon SUV, someone from the maroon SUV broke into the Tahoe, and all three cars then drove off in the same direction. [Id.]. Video surveillance from the Mall of Georgia parking lot showed that the same type of LaCrosse was used as a getaway vehicle by the armed robber. [Id. at 30]. Based on the body style and features of the LaCrosse, officers determined the vehicle was a brown 2008-2009 Buick LaCrosse Super, and further investigation revealed that only one vehicle, owned by Anita Booker, wife of co-defendant Booker, was a potential match.4 [Id. at 31-32]. The affidavit also described how fingerprints recovered following an armored car robbery in Marietta provided law enforcement with evidence supporting Booker’s involvement in the robberies. [Id. at 33-35, 44-45]. Specifically, the affidavit stated that one fingerprint recovered from the getaway vehicle used in the Marietta armed robbery was identified as belonging to Christopher Bennett (“Bennett”), who 4

The affidavit also explained that the LaCrosse was later found in the driveway of Anita Booker’s cousin in Hiram, Georgia, in March of 2011. [Doc. 341-1 at 46]. Detective Whaley stated that he believed Booker had taken the vehicle there and “draped it with a vehicle cover in order to conceal its identify and avoid its detective by law enforcement officers investigating the recent armored truck robberies.” [Id.]. 5

Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 8 of 53

had been reported missing on December 29, 2010.5

[Id. at 33].

During the

investigation of Bennett’s disappearance, officers subpoenaed his phone records and the phone records for the last numbers he had contacted, believing it would belong to “Chicken,” who had been identified as an individual connected to the robberies.6 [Id.]. Records for that phone number showed that it was actually registered to Henderson from November 12, 2010, until December 29, 2010, and that it had been used in the vicinity of the armored car robberies, and had moved away from those locations immediately after each robbery took place. [Id. at 33-34]. Additionally, one of the numbers called from that phone around the times of the robberies was registered to Booker at the same address listed on the registration for the LaCrosse.

5

According to interviews with Bennett’s brother, Tramel Bennett (“Tramel”), Bennett’s girlfriend, Aeriel Taylor (“Taylor”), and Warren Pope (“Pope”) Bennett had admitted to them before his disappearance that he was involved in the armored car robberies. See [Doc. 341-1 at 35, 37-39]. Bennett also told them that “Big Quint” was responsible for planning the robberies, and both Pope and Donavan Thomas, Bennett’s cousin who denied any knowledge of the robberies, identified a picture of Booker as “Big Quint” or “Big Q.” [Id. at 35, 37-39]. Pope, Tramel, and Taylor also told police that Bennett had informed him that “Chicken” and “Teddy” were involved in the robberies. [Id. at 37, 39]. According to Tramel, Bennett also told him that the robbery was supposed to be an inside job. [Id. at 39]. Further police investigation revealed that Veronica Bullard, who was employed by Dunbar Armored Truck Company and had worked on three of the routes that had been robbed, was Booker’s sister. [Id. at 34, 36]. 6

Taylor told law enforcement that Bennett was supposed to be meeting “Chicken” when he disappeared, leading investigators to believe that “Chicken” was the last person Bennett may have contacted with his phone. [Doc. 341-1 at 33]. 6

Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 9 of 53

[Id. at 34]. Finally, subpoenaed phone records for a number associated with Booker7 showed that the phone was in the vicinity of each robbery when it took place and left the area immediately after the robberies were over. See [id. at 44-45]. The affidavit also described how information gleaned from visual surveillance and GPS trackers attached to Booker’s vehicles connected Booker to Target Telephone #1. See [id. at 40-42].8 The GPS tracker revealed that Booker’s vehicle traveled to a Spring Hill Suites in Lithia Springs, Georgia, on March 14, 2011, and when the manager of the hotel was interviewed the following day, he confirmed that Booker entered the lobby and requested a room key for a room registered to Stanley Johnson (“Johnson”). [Id. at 41-42]. After the manager refused to give him a key because Booker was not the registered guest, Booker stepped into the lobby and made a phone call on his cell phone, and Johnson arrived in the hotel lobby shortly thereafter to obtain a key for Booker.9

[Id.].

Based on this interaction, law

7

Tramel provided law enforcement with phone numbers for Booker and “Chicken.” [Doc. 341-1 at 39]. 8

During the surveillance of Booker, agents also observed him watching a Loomis truck as it made deliveries and “engaging in evasive driving techniques, referred to by law enforcement officials as heat checks.” [Doc. 341-1 at 40-41]. Detective Whaley explained that “[h]eat checks are commonly used by individuals involved in criminal activity to determine if law enforcement officers are conducting surveillance on them.” [Id. at 41]. 9

Video surveillance confirmed the manager’s version of events. [Doc. 341-1 at 42]. Agent Paul Szabo (“Agent Szabo”), who had observed Booker several times 7

Case 1:11-cr-00255-TWT-RGV Document 576 Filed 01/30/13 Page 10 of 53

enforcement officials subpoenaed Johnson’s telephone records in order to obtain Booker’s telephone number. [Id.]. The records revealed that Johnson received a call from Target Telephone #1 (404-667-4900) at approximately the same time that the hotel manager observed Booker in the lobby making a phone call. [Id. at 43-44]. 2.

Necessity in the First Wiretap Affidavit

Detective Whaley explained that a wiretap was necessary because “routine investigative techniques” had been tried and had failed, appeared reasonably unlikely to succeed if tried, or were too dangerous to employ. [Id. at 47]. With respect to physical surveillance, he noted that agents efforts had been “consistently thwarted by Booker’s evasive driving techniques . . . and Booker’s sporadic schedule,” and he noted that physical surveillance was not likely to accomplish the investigation’s goals because it is impossible to conduct 24/7 surveillance and excessive surveillance of mobile targets was likely to drive the organization further underground. [Id. at 47-48]. With respect to grand jury subpoenas, Detective Whaley noted that the subjects involved in Booker’s organization would likely be uncooperative or invoke their Fifth Amendment privileges, that subpoenas would likely lead to the destruction of evidence or cause the organization to move “further while surveilling him, confirmed that the individual on the tape who had spoken with the manager was Booker. [Id.]. 8

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