UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

:

v. : Criminal Action No.: 13-cr-33(RC)

:

KEVIN HOLLAND, : Re Document No.: 15,18-22,26

:

Defendant. :

MEMORANDUM OPINION

DENYING GOVERNMENT’S MOTIONS TO ADMIT EVIDENCE PURSUANT TO FEDERAL RULES OF 

EVIDENCE 404(B) AND 609(A)(1); DENYING DEFENDANT’S MOTION FOR SUPPRESSION OF 

ELECTRONIC INFORMATION OBTAINED PURSUANT TO WIRETAP; DENYING DEFENDANT’S 

MOTION FOR DISCLOSURE OF BRADY, GIGLIO, AND JENCKS INFORMATION; DENYING 

DEFENDANT’S MOTION TO DISCLOSE IDENTITIES OF EACH CONFIDENTIAL INFORMANT;

DENYING DEFENDANT’S MOTION TO SUPPRESS TANGIBLE EVIDENCE; AND DENYING 

DEFENDANT’S MOTION FOR DISCOVERY OF CO-DEFENDANT AND CO-CONSPIRATOR 

STATEMENTS

I. INTRODUCTION

Defendant Kevin Holland is charged with three counts of unlawful distribution of 

cocaine, one count of conspiracy to distribute and possession with intent to distribute cocaine, 

and one count of unlawful distribution of heroin, pursuant to 21 U.S.C. §841(a)(1). Superseding 

Indictment, Jan. 30, 2014, ECF No. 17. Defendant has filed motions in limine prior to trial, for 

the: 1) disclosure of identities of each confidential informant, regardless of whether they will 

testify at trial, 2) disclosure of any co-defendant or co-conspirator statements in advance of trial, 

3) disclosure of Brady and Giglio information, and the early production of Jencks material, 4) 

suppression of electronic information obtained from wiretaps, and 5) suppression of tangible 

evidence obtained pursuant to a search warrant. The Government has filed motions seeking the 

admission of Defendant’s prior drug offense, pursuant to Fed. R. Evid. 404(b), and admission of 
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Defendant’s prior assault and theft conviction, pursuant to Fed. R. Evid. 609(a)(1). The Court 

addresses each of these motions below. 

II. LEGAL STANDARD

“While neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence 

expressly provide for motions in limine, the Court may allow such motions ‘pursuant to the 

district court’s inherent authority to manage the course of trials.’” Barnes v. District of 

Columbia, 924 F. Supp. 2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States, 469 U.S. 38, 41 

n. 4 (1984)). “Motions in limine are designed to narrow the evidentiary issues at trial.” Williams 

v. Johnson, 747 F. Supp. 2d 10, 14 (D.D.C. 2010). “Rule 103(d) of the Federal Rules of 

Evidence mandates that the court must conduct a jury trial to the extent practicable so that 

inadmissible evidence is not suggested to the jury by any means.” Daniels v. District of 

Columbia, No. CV 11-1331 (BAH), 2014 WL 535213, at *2 (D.D.C. Feb. 11, 2014) (citing Fed. 

R. Evid. 103(d)). Importantly, a trial judge’s discretion “extends not only to the substantive 

evidentiary ruling, but also to the threshold question of whether a motion in limine presents an 

evidentiary issue that is appropriate for ruling in advance of trial.” Barnes, 924 F. Supp. 2d at 79 

(quoting Graves v. District of Columbia, 850 F. Supp. 2d 6, 11 (D.D.C. 2011)). 

“In evaluating the admissibility of proffered evidence on a pretrial motion in limine the 

court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to 

Federal Rules of Evidence 401 and 402.” Daniels, 2014 WL 535213, at *3. A court “may 

exclude relevant evidence if its probative value is substantially outweighed by a danger of one or 

more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, 

wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Unfair 

prejudice within its context means an undue tendency to suggest [making a] decision on an 
3

improper basis, commonly, though not necessarily, an emotional one.” United States v. Ring, 

706 F.3d 460, 472 (D.C. Cir. 2013), cert. denied, 134 S. Ct. 175 (2013) (quoting Advisory 

Committee’s Note Fed. R. Evid. 403); see also Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 

1980) (explaining that evidence is unfairly prejudicial “if it appeals to the jury’s sympathies, 

arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base 

its decision on something other than the established propositions in the case.”) (citations 

omitted). Under Rule 403, “the court must ‘engage in on-the-spot balancing of probative value 

and prejudice and. . . exclude even factually relevant evidence when it fails the balancing test.” 

Daniels, 2014 WL 535213, at *3 (quoting United States v. Moore, 651 F.3d 30, 63 (D.C. Cir. 

2011)). 

III. ANALYSIS

A. Rule 404(b) evidence

The Government seeks the admission of the Defendant’s 1996 conviction for a 

conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base, 

pursuant to Rule 404(b). Govt.’s Mot. for Evid. Pursuant to 404(b), Jan. 24, 2014, ECF No. 15.

Rule 404(b) of the Federal Rules of Evidence governs the admission of other crimes, wrongs, or 

bad acts of a defendant. The D.C. Circuit has described Rule 404(b) as one “of inclusion rather 

than exclusion,” United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000), and has explained 

that it excludes only evidence that “is offered for the sole purpose of proving that a person's 

actions conformed to his or her character,” United States v. Long, 328 F.3d 655, 661 

(D.C.Cir.1993).

Evidence of other crimes, wrongs, or bad acts is admissible under Federal Rule of 

Evidence 404(b) if offered for a permissible purpose. Such permissible purposes include “proof 
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of intent, motive, opportunity, plan, knowledge, identity or absence of mistake or accident.” 

United States v. Morrow, 2005 WL 3159572 at *3 (D.D.C. Apr. 7, 2005); see also United States 

v. Pindell, 336 F.3d 1049, 1056 (D.C. Cir. 2003); United States v. Miller, 895 F.2d 1431, 1436 

(D.C. Cir. 1990). This Circuit has made clear that Rule 404(b) “was intended not to define the set 

of permissible purposes for which bad-acts evidence may be admitted but rather to define the one 

impermissible purpose for such evidence.” Miller, 895 F.2d at 1436. “Rule 404(b) thus is not so 

much a character rule as a special aspect of relevance” because it “does not prohibit character 

evidence generally, only that which lacks any purpose but proving character.” United States v. 

Douglas, 482 F.3d 591, 596 (D.C. Cir. 2007) (citing Bowie, 232 F.3d at 930).

The Court must conduct a two-part analysis to determine admissibility in the Rule 404(b) 

context. See Miller, 895 F.2d at 1435. First, the Court considers whether the evidence is 

“probative of some material issue other than character.” United States v. Clarke, 24 F.3d 257, 

264 (D.C. Cir. 1994); Fed. R. Evid. 404(b). Second, if the Court deems the evidence to be 

relevant, the Court should exclude the evidence only if its probative value “is substantially 

outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403; Long, 328 F.3d at 662. In 

close cases, the rule tilts toward the admission of the uncharged conduct evidence. See United 

States v. Johnson, 802 F.2d 1459, 1464 (D.C. Cir. 1986) (“[T]he balance should be generally 

struck in favor of admission when the evidence indicates a close relationship to the event 

charged.”) (quoting United States v. Day, 591 F.2d 861, 878 (D.C. Cir. 1978)). 

The Government seeks to introduce evidence of facts and circumstances surrounding 

Defendant’s prior drug offense. In 1996, Defendant pled guilty in the United States District 

Court for the District of Columbia (Criminal Case No. 94-394-02) to conspiracy to distribute and 

possess with the intent to distribute 50 grams or more of cocaine base. Def.’s Mot. at 2, ECF No. 
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15. Defendant here is charged with three counts of unlawful distribution of cocaine, one count of 

conspiracy to distribute and possession with intent to distribute cocaine, and one count of 

unlawful distribution of heroin. Superseding Indictment, Jan. 30, 2014, ECF No. 17. 

21 U.S.C. §841(a)(1), pursuant to which Defendant is charged here, makes it unlawful for 

“any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with 

intent to manufacture, distribute, or dispense, a controlled substance.” (emphasis added). The 

Government intends to introduce the evidence of Defendant’s previous drug offense to show 

Defendant’s “knowing and intentional possession with intent to distribute narcotics in this case.” 

Govt.’s Mot. for 404(b) evidence, Jan 24. 2014, ECF No. 15. At the motions hearing held in this 

matter on May 20, 2014, the Government asserted that Defendant’s prior conviction would 

establish that he knew how cocaine looked, and knew how to arrange the time, place, and 

manner of a drug transaction. 

In support of this, and in order to establish the probative value of the prior offense, the 

Government relies largely on the factual proffer presented orally during Defendant’s 1995 plea 

hearing. However, perhaps because Mr. Kevin Holland was a co-defendant in the previous 

matter with his brother Andre Holland, the Government read only one, anemic factual proffer. 

Tr. Plea Hearing, at 19-20, Nov. 30, 1995, Govt.’s Supp. to Mot. Seeking 404(b) Evidence, Ex. 

1, ECF. No 23. As a result, the factual proffer does not sufficiently distinguish the degree of each 

brother’s involvement in the conspiracy. 

The proffer states, for example, that Mr. Kevin Holland scheduled deliveries, and 

conducted hand-to-hand transactions on three occasions. Tr. Plea Hearing, at 20. However, the 

proffer adds that the drugs being sold were Andre Holland’s, and that on other occasions, he 

personally scheduled drug deliveries to be simply executed by his brother Kevin. Id. It is thus 
6

unclear how involved Mr. Kevin Holland actually was when scheduling deliveries, or whether he

was in fact anything more than a simple delivery man. The proffer does not allege, for example,

that Defendant ever saw the content of his deliveries, and thus cannot establish that Defendant 

knows what cocaine looks like. Similarly, although the proffer alleges that “Mr. Kevin Holland 

schedule[d] a delivery,” the proffer does not explain how and with whom these transactions were 

arranged, nor does it further allege that Defendant used code words when scheduling the 

transactions. Id. Thus, the factual proffer cannot shed any light, other than in the most general 

way, of Defendant’s knowledge concerning the drug trade and how to arrange transactions. 

Notwithstanding the factual proffer, the Government additionally argues that Mr. Kevin

Holland’s prior conviction is probative as to his knowledge and intention to distribute because, in 

entering a guilty plea, Mr. Holland was required to accept that he “knowingly and intentionally 

distribute[d] a mixture and substance containing a detectable amount of cocaine base.” Id. at 14-

15. Although this is the element the Government intends to prove, generally speaking, it seeks to 

introduce Defendant’s prior conviction for much more specific reasons —1) that the Defendant 

can recognize the drug he was allegedly dealing, and 2) to show Defendant’s familiarity with the 

relevant terminology and code words used to schedule drug transactions. Defendant’s mere 

acceptance of guilt pursuant to the basic elements of the conspiracy charge is not, without more, 

sufficiently probative on the particular issues for which the Government seeks to introduce this 

evidence. And indeed, courts routinely look for factual similarities above and beyond the bare 

elements of a prior conviction to determine the probativeness of a prior offense. See, e.g., United 

States v. Crowder 141 F.3d 1202, 1214-15 (D.C. Cir. 1998) (finding that a previous drug offense 

provided evidence of modus operandi because the Government presented evidence that the 

defendant used certain colored bags for certain quantities and types of cocaine); United States v. 
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Burch, 156 F.3d 1315, 1323-24 (D.C. Cir. 1998) (admitting a prior drug conviction under 404(b) 

but emphasizing that Defendant was selling the same substance (crack cocaine) and on the same 

block as his previous offense). Because the factual proffer does not clearly establish Defendant’s 

knowledge, the Court finds that Defendant’s prior conviction has little, if any, probative value. 

The Court thus turns to the second prong of the 404(b) test—whether the probative value 

of the other acts evidence is substantially outweighed by the danger of unfair prejudice. Fed. R. 

Evid. 403. As the Defendant correctly notes, “[e]vidence of prior wrongful behavior. . . risks that 

the jury may infer guilt simply on the basis that the accused has committed wrongful acts.” 

Campbell v. United States, 450 A.2d 428, 431 (D.C. 1982). Such evidence “diverts the jury’s 

attention from the question of the defendant’s responsibility for the crime charged to the 

improper issue of his bad character.” Id. Courts have previously recognized the strong prejudicial 

effect of prior drug convictions, “because it invites the jury to infer that [the defendant] has a 

propensity for drug offenses” and that he must thus be guilty of this drug offense as well. United 

States v. Watson, 171 F.3d 695, 703 (D.C. Cir. 1999); see also United States v. (Dennis) 

Mitchell, 49 F.3d 769, 776–77 (D.C. Cir. 1995); United States v. (Timothy) Johnson, 27 F.3d 

1186, 1193 (6th Cir. 1994); United States v. (Michael) Johnson, 970 F.2d 907, 912-14 (D.C. Cir.

1992). Although many courts have nonetheless allowed evidence of prior drug convictions 

pursuant to 404(b), the probative value of the evidence was quite high in those cases. See, e.g., 

Crowder 141 F.3d at 1214-15 (finding probative value in the prior conviction because the 

Government presented evidence that the defendant used certain colored bags for different 

quantities and types of cocaine, thus indicating a modus operandi); Burch 156 F.3d at 1323-24

(finding probative value in the prior conviction because the government was able to establish that 

in both the prior conviction and the present matter, the defendant was found selling the same 
8

substance on the same street block). Because the probative value of Mr. Holland’s prior 

conviction is quite minimal, and because the similarity between the two convictions is likely to 

prejudice the jury into improperly inferring that because Defendant was previously a drug dealer 

he probably still is one, the Court finds that the prejudicial effect of the evidence substantially 

outweighs the probative value, and thus denies the Government’s motion for 404(b) evidence. 

B. Federal Rule of Evidence 609(a)(1)

The Government seeks to introduce evidence of Defendant’s prior convictions pursuant 

to Fed. R. Evid. 609, for the purpose of attacking Defendant’s character for truthfulness should 

the Defendant choose to testify as a witness. Govt.’s Notice of Impeachment, Jan. 24, 2014, ECF 

No. 16. The Government offers two prior convictions under Fed. R. Evid. 609: assault in the 

second degree pursuant to Md. Code, Crim. Law §3-203, and theft under $500 pursuant to Md. 

Code, Crim. Law §7-104(g)(2). The penalty for each of these convictions is over one year. 

Fed. R. Evid. 609(a)(1) allows a party to attack a “witness’s character for truthfulness by 

evidence of a criminal conviction for a crime that, in the convicting jurisdiction, was punishable 

by death or by imprisonment for more than one year.” Fed. R. Evid. 609(a)(1). Such evidence 

“must be admitted in a criminal case in which the witness is a defendant, if the probative value of 

the evidence outweighs its prejudicial effect to that defendant.” Fed. R. Evid. 609(a)(1)(B)

(emphasis added). This Circuit has previously held that “all felonies have some probative value 

on the issue of credibility.” United States v. Lipscomb, 7902 F.2d 1049, 1062 (D.C. Cir. 1983). 

Nevertheless, the Court must still determine whether the probative value of admitting this 
9

evidence is outweighed by the prejudicial effect to the Defendant. Id. at 1058; Fed. R. Evid. 

609(a)(1)(B).1

The Court balances several factors in determining whether the probative value of the 

proffered prior convictions is outweighed by unfair prejudice to the Defendant: “(1) the kind of 

crime involved; (2) when the conviction occurred; (3) the importance of the witness’ testimony 

to the case; (4) the importance of the credibility of the defendant; and (5) generally, the 

impeachment value of the prior crime.’” United States v. Pettiford, 238 F.R.D. 33, 41 (D.D.C. 

2006) (citing United States v. Butch, 48 F. Supp. 2d 453, 464 (D.N.J. 1999). “This list does not 

exhaust the range of possible factors, but it does outline the basic concerns relevant to the 

balancing under Rule 609(a)(1).” United States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir.

1980)). 

The Court first considers the type of crime involved, and whether that crime is 

particularly probative of the Defendant’s truthfulness. Under Rule 609(a)(1), a court “may admit 

evidence of a witness’s felony convictions that do not constitute crimen falsi, subject to 

balancing pursuant to Rule 403,” United States v. Estrada, 430 F.3d 606, 615 (2d Cir. 2005)

(emphasis in original), because “all felonies have some probative value on the issue of 

credibility.” Lipscomb, 702 F.2d at 1062. Thus, “[w]hile many felonies exemplifying untruthful 

 

1

Fed. R. Evid. 609(a)(2) mandates that the Court allow a “witness’s character for 

truthfulness to be attacked by evidence of a criminal conviction. . . for any crime regardless of 

the punishment...if the court can readily determine that establishing the elements of the crime 

required proving–or the witness’s admitting–a dishonest act or false statement.” Fed. R. Evid. 

609(a)(2). Under Rule 609(a)(2), the Court would not be permitted to balance the probative value 

of the prior conviction against the prejudice to the Defendant. Instead, Rule 609(a)(2) “creates a 

per se rule that probativeness outweighs prejudice for crimes” involving a dishonest act or false 

statement, and thus, such acts must be admitted into evidence. United States v. Lipscomb, 702 

F.2d 1049, 1064 (D.C. Cir. 1983). Neither party here argues that the Defendant’s prior 

convictions fall under this mandatory provision. As a result, the Court only analyzes this motion 

under 609(a)(1). 
10

behavior fall within the ambit of Rule 609(a)(2), many crimes that do not fit that provision are 

nonetheless quite probative of veracity.” Estrada, 430 F.3d at 618. 

Nevertheless, courts have held that certain types of felonies are not particularly probative 

of a witness’s credibility under 609(a)(1), especially when they do not require plaintiffs to make 

a false statement. See, e.g., United States v. Rosales, 680 F.2d 1304, 1306–07 (10th Cir. 1981) 

(excluding convictions for forgery, burglary, conspiracy, illegal possession of a firearm, and 

violation of narcotics laws as “not normally suggest[ive of] the special probative value on the 

issue of credibility contemplated by Fed. R. Evid. 609(a)(1)”); Furtado v. Bishop, 604 F.2d 80, 

93–94 (1st Cir. 1979) (finding convictions for armed robbery, burning a building, and assault and 

battery were “not particularly probative of credibility”). 

“An influential case from the Court of Appeals for the District of Columbia. . . 

distinguished between crimes that reflect adversely on a persons integrity, and which therefore 

bear on honesty—such as those involving deceit, fraud, and theft—and acts of violence, ‘which 

may result from a short temper, a combative nature, extreme provocation, or other causes, [and] 

generally have little or no direct bearing on honesty and veracity.’” Estrada, 430 F.3d at 617-18 

(citing Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967)). In essence, this Circuit 

stated in Gordon that “convictions which rest on dishonest conduct relate to credibility whereas 

those of violent or assaultive crimes generally do not.” Gordon, 383 F.2d at 940.

Defendant’s prior conviction for assault pursuant to Md. Code, Crim. Law §3-203(a) did

not require an individual to make a false statement in order to be found guilty. Indeed, the statute 

simply states that “[a] person may not commit an assault.” Md. Code, Crim. Law §3-203(a). Nor 

did the Government present any additional evidence at the motions hearing that this assault 

involved dishonest conduct or false statements. Instead, the assault charge allegedly arose out of 
11

a “stick-up” involving Defendant and his brother Andre Holland. As a result, the Court finds that 

Plaintiff’s previous assault is not particularly probative in regards to Defendant’s character for 

truthfulness. 

Theft pursuant to Md. Code, Crim. Law §7-104(g)(2) similarly does not require 

Defendant to make a false or dishonest statement as an element of the crime. And indeed, 

Defendant’s conviction for theft allegedly arose out of the same facts as the assault—a mugging. 

According to the facts presented during the motions hearing, Defendant did not make any false 

or dishonest statements in connection with his conviction for theft. Of course, crimes such as 

robbery still “show[ ] conscious disregard for the rights of others” and thus “reflect[ ] more 

strongly on credibility than, say, crimes of impulse, or simple narcotics or weapons possession.” 

Lipscomb, 702 F.2d at 1071. Nevertheless, this Circuit has previously held that crimes of theft 

not involving the use of false statements are not particularly probative as to the Defendant’s 

character for truthfulness. See, e.g., United States v. Smith, 551 F.2d 348, 364 (D.C. Cir. 1976) 

(finding that armed robbery is not a crime of dishonesty or false statement); United States v. 

Dorsey, 591 F.2d 922, 935 (D.C. Cir. 1978) superseded by statute as stated in United States v. 

Fennell, 53 F.3d 1296, 1300 (D.C. Cir. 1995) (holding that shoplifting is not a crime of 

dishonesty or false statement); United States v. Fearwell, 595 F.2d 771, 776 (D.C. Cir. 1978) 

(same for petit larceny). Given the nature of the theft and its factual connection to the conviction 

for assault, which is otherwise considered a crime of violence, the Court finds that the theft has 

only minimal probative value into Defendant’s character for truthfulness. 

The Court thus turns to the prejudicial effect of the prior convictions. Generally, prior 

convictions have at least some prejudicial effect on a Defendant, as a jury could “generaliz[e] a 

defendant’s earlier bad act into bad character and tak[e] that as raising the odds that he did the 
12

later bad act now charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997). Moreover, this 

Circuit has recognized that impeachment through use of prior convictions has a greater 

prejudicial effect where, as here, the impeached witness is also the Defendant. Lipscomb, 702 

F.2d at 1063 (noting that “[t]here is less risk of prejudice when a defense witness other than the 

defendant is impeached through a prior conviction because the jury cannot directly infer the 

defendant’s guilt from someone else’s criminal record”). Moreover, as the Government has 

stated, in impeaching Defendant with these prior convictions, it can do no more than to ask 

whether he was convicted of the crime. See, e.g., United States v. Morrow, 537 F.2d 120, 141 

(5th Cir. 1976). It cannot further explore the facts surrounding the crimes. Id. As a result, the jury 

will only know that Defendant was convicted of “assault” and “theft,” but will not know the 

seriousness of those alleged crimes, and thus their general probative value of Defendant’s 

character for truthfulness. As the Supreme Court recognized, “evidence of the name or nature of 

the prior offense generally carries a risk of unfair prejudice to the defendant.” Old Chief, 519 

U.S. at 185. 

Finally, this Circuit has recognized that a limiting instruction would not be particularly 

effective in this scenario. When “[t]he jury is told to consider the defendant's prior conviction 

only on the issue of credibility and not on the overall issue of guilt. . .the jury [is required] to 

perform ‘a mental gymnastic which is beyond, not only their powers, but anybody else’s.’” 

Lipscomb, 702 F.2d at 1062 (citing Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) 

(Hand, J.)). The Court thus finds that the prior convictions’ probative value of Defendant’s 

character for truthfulness is quite minimal, and is outweighed by the prejudicial nature of the 

evidence. As a result, evidence of Defendant’s prior Maryland convictions is inadmissible for 

purposes of impeachment. 
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C. Motion to Suppress Electronic Information Obtained from Wiretap

Defendant next moves to suppress the contents of all intercepted wire communications 

and seized electronic communications. Def.’s Mot. to Suppress Electronic Communications, Feb. 

5, 2014, ECF No. 18. The legal standards that govern an application for a court order authorizing 

the interception of wire, oral, or electronic communications are defined by statute: 

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 

2510 et seq., authorizes the district court to approve an application for the 

interception of certain wire, oral, or electronic communications. 18 U.S.C. § 2518. 

The wiretap statute requires that an application for a wiretap shall be in writing, 

under oath, and shall contain certain information including “a full and complete 

statement of the facts and circumstances relied upon by the applicant[ ] to justify 

his belief that an order should be issued.” Id. § 2518(1). On the basis of the facts 

submitted by the applicant, the district court may authorize a wiretap upon finding 

that (1) probable cause exists to believe that an individual has committed or is 

about to commit one of certain enumerated offenses; (2) probable cause exists to 

believe that “particular communications concerning that offense will be obtained” 

through an interception; (3) “normal investigative procedures have been tried and 

have failed or reasonably appear to be unlikely to succeed if tried”; and (4) 

probable cause exists to believe that the communication facility sought to be 

wiretapped “[is] being used, or [is] about to be used, in connection with the 

commission of [the] offense.” Id. § 2518(3)(a-d); see United States v. Donovan, 

429 U.S. 413, 435 (1977). The determination 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,” 18 U.S.C. § 2518(3)(c), is referred to as 

the “necessity requirement,” and it is the “keystone of congressional regulation of 

electronic eavesdropping.” United States v. Williams, 580 F.2d 578, 587–588 

(D.C. Cir. 1978).

The wiretapping statute also requires that “[e]very [wiretap] order and extension 

thereof shall contain a provision that the authorization to intercept shall be 

executed as soon as practicable [and] shall be conducted in such a way as to 

minimize the interception of communications not otherwise subject to 

interception....” 18 U.S.C. § 2518(5). This is referred to as the “minimization 

requirement.” Although “[t]he statute does not forbid the interception of all 

nonrelevant conversations,” the government must make reasonable efforts to 

“minimize” the interception of such conversations. Scott v. United States, 436 

U.S. 128, 139–40 (1978). The statute also provides that an order authorizing an 

interception cannot extend “for any period longer than is necessary to achieve the 

objective of the authorization, nor in any event longer than thirty days.” 18 U.S.C. 

§2518(5).
14

The wiretap statute provides that “no part of the contents of [intercepted] 

communication and no evidence derived therefrom may be received in evidence 

in any trial, hearing, or other proceeding ... if the disclosure of that information 

would be in violation of this chapter.” Id. § 2515. The “aggrieved person” may 

move to suppress the introduction of wiretap evidence or its fruits if “the 

communication was unlawfully intercepted,” the “order of authorization or 

approval under which it was intercepted is insufficient on its face,” or if “the 

interception was not made in conformity with the order of authorization or 

approval.” Id. § 2518(10)(a)(i-iii); see Donovan, 429 U.S. at 433–34.

United States v. Carter, 449 F.3d 1287, 1292–93 (D.C. Cir. 2006).

On December 16, 2011, the Honorable Judge Bates approved a wiretap warrant over 

telephone number 704-277-7076, which the FBI had identified as a number connected to the 

Defendant. Def.’s Opp’n. at 6. Judge Bates further authorized a “roving wiretap” for the 

interception of changing cellphones used by the Defendant for a 30-day period. Id. Judge Bates 

extended this roving wiretap for an additional 30-day period on January 26, 2012 and again on 

February 25, 2012. Id. at 6-9. 

Between December 16, 2011, and March 25, 2012, the FBI began to tap cellphone 

numbers not specifically listed in the wiretap warrant. The Government believes that it was able 

to intercept these cellphone conversations and text messages pursuant to Judge Bates’s roving 

wiretap authorization. Def.’s Opp’n, at 7-9. To cover its bases, the Government provided Judge 

Bates with additional memoranda detailing the new cell numbers it intended to track. Id. at 7-10. 

Judge Bates signed these memoranda. Id. Pursuant to the Court’s request at the motions hearing, 

the Government has submitted these materials to the Court ex parte. See Govt’s Ex Parte 

Supplement, May 22, 2014, ECF No. 34. The Court now orders the Government to produce these 

documents for defense counsel. 

Defendant now seeks to suppress evidence obtained pursuant to the Government’s 

wiretap of four cellphone numbers. He argues that these numbers could not be subsumed under 

Judge Bates’s initial roving wiretap because the Government did not submit evidence describing 
15

the manner in which they obtained those new numbers. Defendant further seeks to suppress 

evidence obtained from all of the Government’s wiretaps, arguing that the Government failed to 

demonstrate the necessity for electronic surveillance in general, and failed to comply with the 

statute’s minimization requirement. 

1. Probable Cause. 

To determine whether probable cause exists for a wiretap courts apply the same legal 

standards used to determine whether probable cause exists for a search warrant. See, e.g., United 

States v. Diaz, 176 F.3d 52, 110 (2d Cir. 1999). Accordingly, a federal judge must “simply. . .

make a practical, common-sense decision whether, given all the circumstances set forth in the 

affidavit. . . including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay 

information, there is a fair probability that. . . evidence of a crime” will be obtained by the 

interception of wire, oral, or electronic communications.” Illinois v. Gates, 462 U.S. 213, 238 

(1983). “While each fact standing alone may be insufficient, the combination of all the facts can 

establish probable cause.” United States v. Gilliam, 167 F.3d 628, 633 (D.C. Cir. 1999). It is the 

duty of a reviewing court “to ensure that the [judge issuing the wiretap order] had a ‘substantial 

basis for ... conclud[ing]’ that probable cause existed.” Gates, 462 U.S. at 238–39. 

Defendant does not dispute that Judge Bates had probable cause in issuing the original 

wiretap warrant on December 16, 2011. Nor does the Defendant contest the general validity of 

the roving wiretap. Defendant only argues that, before the Government intercepted cellphone 

conversations pursuant to the roving wiretap, it was required to submit proof to the authorizing 

Judge describing how it obtained the new numbers, and how it verified that Defendant was 

connected to those numbers. 
16

Although no Circuit has addressed this particular issue, other courts have upheld the 

constitutionality of Section 2518(11)(b) of Title III of the Omnibus Crime and Control Safety 

Act’s (“Title III”). Section 2518(11)(b) of Title III, authorizing the use of roving wiretaps, 

states, in relevant part: 

(11) The requirements of subsections (1)(b)(ii) and (3)(d) of this section relating 

to the specification of the facilities from which, or the place where, the 

communication is to be intercepted do not apply if....

(b) in the case of an application with respect to a wire or electronic 

communication--

(i) the application is by a Federal investigative or law enforcement 

officer and is approved by the Attorney General, the Deputy 

Attorney General, the Associate Attorney General, an Assistant 

Attorney General, or an acting Assistant Attorney General;

(ii) the application identifies the person believed to be committing 

the offense and whose communications are to be intercepted and 

the applicant makes a showing that there is probable cause to 

believe that the person's actions could have the effect of thwarting 

interception from a specified facility;

(iii) the judge finds that such showing has been adequately made; 

and

(iv) the order authorizing or approving the interception is limited to 

interception only for such time as it is reasonable to presume that 

the person identified in the application is or was reasonably 

proximate to the instrument through which such communication 

will be or was transmitted.

18 U.S.C. §2518(11)(b). In contrast, to obtain a non-roving wiretap, the investigative officer 

must submit:

(b) a full and complete statement of the facts and circumstances relied upon 

by the applicant, to justify his belief that an order should be issued, 

including:

(i) details as to the particular offense that has been, is being, or is about to 

be committed, 
17

(ii) except as provided in subsection (11), a particular description of 

the nature and location of the facilities from which or the place where the 

communication is to be intercepted, 

(iii) a particular description of the type of communications sought to be 

intercepted, 

(iv) the identity of the person, if known, committing the offense and 

whose communications are to be intercepted

18 U.S.C. §2518(1)(b) (emphasis added). Section 2518(1)(b)(ii) specifically exempts roving 

wiretap authorization obtained pursuant to §2518(11) from the “particularity” requirement. Thus, 

§2518(11) acts as a substitute to §2518(1)(b)(ii) for situations in which the Government cannot 

easily identify the facility used for communication, such as a cell phone number. This is 

precisely why authorization for a roving wiretap requires the Judge to make a finding that the 

“person's actions could have the effect of thwarting interception from a specified facility.” 18 

U.S.C. §2518(11)(b)(ii). Because the parties do not dispute that the roving wiretap was properly 

issued by Judge Bates, the roving wiretap covers other additional cell phone numbers linked to 

Defendant, even if no additional proof is submitted for those numbers. 

Other courts have similarly upheld the constitutionality of the roving wiretap provision, 

albeit on a slightly different issue. Nevertheless, these courts have specifically noted that “[t]he 

conditions imposed on ‘roving’ wiretap surveillance. . . satisfy the purposes of the particularity 

requirement.” United States v. Petti, 973 F.2d 1441, 1445 (9th Cir. 1992); see also United States 

v. Gaytan, 74 F.3d 545, 553 (5th Cir. 1996); United States v. Bianco, 998 F.2d 1112, 1120-25 

(2d Cir. 1993) (abrogated on other grounds by Groh v. Ramirez, 540 U.S. 551 (2004)); United 

States v. Jackson, 207 F.3d 910, 914 (7th Cir. 2000) (reconsidered on other grounds); United 

States v. Savoy, 883 F. Supp. 2d 101, 116-18 (D.D.C. 2012). Moreover, these courts have 

recognized that, in enacting the roving wiretap provision, “Congress contemplated the roving 

surveillance of suspects who. . . use cloned cellular phone numbers and changed numbers 
18

frequently to avoid detection.” Savoy, 883 F. Supp. 2d at 116. The roving wiretap thus authorizes 

the Government to intercept any number connected to a particular individual, even if they cannot 

identify the number that they are tracking. Id.

Defendant’s argument seeks to limit the scope of the roving wiretap by arguing that the 

Government must first inform the judge of the facts surrounding its acquisition of the number—

which is essentially what the Government is otherwise required to do under 18 U.S.C. 

§2518(1)(b)(ii) when obtaining a non-roving warrant. Practically speaking then, the government 

would be required to return to the authorizing judge each time the suspect changes cell phones, 

and obtain new authorization to intercept communications from that phone. This would impose a 

burden on the government, especially in cases such as this one. In the instant case, Mr. Holland 

employed six different cellphone numbers in the time period between January 2011 and 

December 2011, and an additional seven numbers between December 16, 2011 and March 25, 

2012. Govt.’s Omnibus Opp’n at 4–9, n.2. Defendant’s proposed requirement would thus 

eviscerate the purpose of the roving wiretap, which was specifically adopted to remedy the 

challenges the government faces when investigating sophisticated individuals seeking to thwart 

surveillance. See United States v. Hermanek, 289 F.3d 1076, 1087 (9th Cir. 2002); Savoy, 883 F. 

Supp. 2d at 116. If the government has to return to the Court and obtain authorization each time 

the Defendant switched numbers, there would be no purpose to the roving wiretap. 

Moreover, the Court notes that the heightened procedural safeguards provided in 18 

U.S.C. §2518(11)(b) allay any additional constitutional concerns. The roving wiretap does “not 

permit a ‘wide-ranging exploratory search’” and requires the government to first establish that “it 

is the suspect’s purpose to thwart interception” by changing communication devices. Petti, 973 

F.2d at 1445. The affidavit first requesting a roving wiretap established that Defendant had “used 
19

at least seven different cellular telephones” in a period of six months, while communicating with 

Confidential Source 1 (CS-1). Affidavit in Support of Application, at ¶15, Feb. 10, 2014, ECF 

No. 24, Ex. 1. The Affidavit further notes that Defendant had “previously been intercepted in a 

T-III investigation” and “was made aware of his intercepted telephone calls during the discovery 

process and at trial” in the previous case. Id. The affidavit concluded that the Defendant was 

“keenly aware and mindful of law enforcement’s ability and concerted efforts to intercept 

telephones.” Id. Additionally, the affidavit outlined several minimization techniques. One such 

technique required all intercepted electronic communications to first be reviewed by a case 

agent, who would disclose those communications to the Assistant United States Attorneys, 

outside law enforcement, defense counsel, or the public, only if he or she found them to be 

“pertinent.” Id. at ¶70. The Court thus finds that the affidavit met the required procedural 

safeguards provided in 18 U.S.C. §2518(11)(b). 

Because “the conditions imposed by the roving wiretap provision. . . and. . . the many 

safeguards mandated by the statute for both roving and fixed interceptions satisfy the Fourth 

Amendment requirement that ‘no greater invasion of privacy [occur] than [is] necessary’ to meet 

‘the legitimate needs of law enforcement,’” Id. citing Katz v. United States, 389 U.S. 347, 355-56 

(1967), and because the affidavit met the required standards here, the Court finds that the statute 

does not obligate the Government to submit additional information to the authorizing judge for 

cell-phone numbers obtained pursuant to a roving wiretap. 

Despite not having to do so under the statute, the Government has in fact returned to the 

Court each time the Defendant changed phones and submitted detailed memoranda to the 

authorizing Judge. Memorandum for 804-479-5646, Dec. 28, 2011, Ex. 1; Memorandum for 

864-525-9522, Feb. 7, 2014, Ex. 2; Memorandum for 202-322-5484, Feb. 9, 2012, Ex. 4; 
20

Memorandum for 443-930-7339, March 19, 2012, Ex. 5. These memoranda described in detail 1) 

how law enforcement officials discovered that the Defendant had stopped using the currently 

tracked cell phone, 2) how law enforcement then utilized pen registers and toll records to 

determine the new number Defendant began to use, and 3) how law enforcement confirmed that 

it was in fact the Defendant using the new number. Id. Judge Bates accepted and signed each of 

these memoranda. Id. The Court accordingly finds that the Government exceeded the 

information required for a finding of probable cause. 

2. Necessity 

The necessity requirement in 18 U.S.C. § 2518 mandates that a wiretap application 

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). Courts will “reject[ ] generalized and conclusory 

statements that other investigative procedures would prove unsuccessful.” United States v. 

Williams, 580 F.2d 578, 588 (D.C. Cir. 1978). However “[b]ecause. . . the statutory command 

was not designed to ‘foreclose electronic surveillance until every other imaginable method of 

investigation has been unsuccessfully attempted,’” the government will meet its burden of 

demonstrating necessity if it shows that “other techniques are impractical under the 

circumstances and that it would be unreasonable to require pursuit of those avenues of 

investigation.” Williams, 580 F.2d at 588. Moreover, this Circuit has held that “a court may 

authorize the wiretap of the phone of a member of an operation if traditional investigative 

techniques have proved inadequate to reveal the operation's full ‘nature and scope.’” United 

States v. Brown, 823 F.2d 591, 598 (D.C. Cir. 1987).
21

The D.C. Circuit has previously held that “the necessity requirement was met by specific 

evidence in affidavits establishing that a drug trafficking operation existed, the defendants were 

involved in the operation, and the government tried to gather information about the defendant in 

other ways.” Glover, 583 F. Supp. 2d at 36–37 (referencing United States v. Carter, 449 F.3d 

1287, 1293 (D.C. Cir. 2006); United States v. Sobamowo, 892 F.2d 90, 93 (D.C. Cir. 1989)). 

Here, the Government attests that Defendant’s proposed methods (physical surveillance, use of 

confidential witnesses, mail covers, search warrants, and other investigative techniques) could 

not have adequately led to Defendant’s drug suppliers, because Defendant was technologically 

savvy. Other courts have found the necessity exemption satisfied based on much less information 

concerning exhaustion of alternative methods. 

In Carter, for example, the government only attempted to use physical surveillance, 

which the government found would not succeed because of the defendant's counter-surveillance 

methods and “because physical surveillance alone would not generate detailed information on 

the activities and associates [of the members of the operation].” 449 F.3d at 1294. Similarly, in 

Sobamowo, the government attempted to use foreign sources and informers, checked federal law 

enforcement agency records, and conducted physical surveillance. 892 F.2d at 93. The D.C. 

Circuit found these efforts adequate and noted that the government “was not required to 

enumerate every technique or opportunity missed or overlooked.” Id.

In the Government’s initial December 2011 affidavit, the Government noted that it had 

employed normal investigative procedures, including: surveillance, debriefings of cooperating 

witnesses, controlled purchases of narcotics by cooperating sources, consensual recordings of 

conversations, review of pen register and telephone records, and review of public records. 

Affidavit in support of Application for Wiretap, Dec. 16, 2011, Notice of Filing, Ex. 1, ECF No. 
22

24. Although these methods had proven successful in establishing an ongoing illegal narcotics 

business, the Government stated that these methods had not “yielded sufficient evidence to 

ascertain the full scope of the narcotics trafficking conspiracy.” Id. Specifically, the investigators 

were hoping to identify all members of the conspiracy, including co-conspirators, the sources of 

funds for the drug trafficking organization, and the location of the organization’s stash houses for 

narcotics and drug proceeds. Id. at ¶53. 

The affidavit further explained the deficiencies in each traditional surveillance method. 

Undercover agents and cooperating sources were unable to penetrate the organization and gain 

access to the identity of suppliers, or the manner in which the members laundered their illegal 

drug proceeds. Id. at ¶¶54, 56. The cooperating sources did not have sufficient access to the 

Defendant’s suppliers and could not provide information regarding “the locations of their stash 

houses, approximate quantities of cocaine being distributed by the drug organization, and what 

methods/channels [we]re utilized to transport narcotics and/or drug proceeds.” Id. at ¶54. 

Moreover, the affidavit concluded that even new cooperating witnesses would not have access to 

the full scope of the trafficking operation. Id. “In order to thwart law enforcement” and to 

“protect their own financial interest,” “a dealer would never introduce a customer to his 

supplier.” Id. The dealer would be worried that “the customer would then cut the dealer, and the 

dealer’s profit, out of the supply chain,” and the supplier would be worried that he or she was 

“vulnerable to a customer who is ‘compromised’ by law enforcement or intent on theft from the 

supplier.” Id. 

Controlled drug purchases were insufficient to gather the full scope of the trafficking 

operation for much the same reason. Because a dealer has no interest “in divulging the names of 

his drug suppliers,” the controlled purchases could not yield sufficient evidence concerning 
23

Defendant’s suppliers, their whereabouts, their drug stash locations, or the intricate details of 

their narcotics operation. Id. at ¶55. 

Similarly, physical surveillance, although helpful in identifying certain meeting points, 

was of limited value as it could not, by itself, establish the necessary elements of a criminal 

charge. Id. at ¶57. For example, although agents were able to trail Defendant to certain meeting 

points through physical surveillance, they: 

could not observe what HOLLAND was doing, whether or not HOLLAND was 

meeting with someone else, or whether or not HOLLAND’S visit was even 

related to his narcotics trafficking. However, even if agents had observed 

HOLLAND meeting with someone, the mere fact that HOLLAND met with 

another individual in a shopping plaza does not prove that their encounter was 

illicit. . . . Such an observation alone cannot provide sufficient evidence necessary 

for successful prosecution.

Id. at ¶58. Moreover, the affidavit noted that physical surveillance had to be used cautiously 

given Mr. Holland’s vigilance in avoiding detection, as evidenced by his sophistication with 

cellphone tracking. Id. Prolonged surveillance could lead to detection and could “totally nullify 

the investigation to date.” Id. For example, “if physical surveillance was detected the 

conspirators might radically change their modus operandi, including telephone numbers and the 

persons with whom they were dealing drugs.” Id. 

Use of grand jury witness subpoenas likewise would not be effective, as “the only known 

witnesses who could provide evidence to a grand jury” of the full scope of the narcotics 

trafficking “are the persons intimately involved in the criminal activity at the highest levels” and 

thus “unlikely...to testify voluntarily or truthfully.” Id. at ¶63. The affidavit predicted that such 

witnesses would likely “assert their Fifth Amendment privilege not to testify” and would further 

“cause the co-conspirators to become more cautious in their activities, to flee to avoid 

investigation or prosecution, to destroy evidence, to threaten the lives of the cooperating 

individuals, or otherwise compromise the investigation.” Id. The use of search warrants, too, 
24

would “alert the target subjects to the ongoing investigation” and thus result in many of the same 

consequences already outlined above. Id. at ¶66. For example, “co-conspirators would likely 

relocate their base of operations and obtain new telephone numbers,” thus mooting the 

effectiveness of a physical search warrant. Id. Moreover, co-conspirators arrested pursuant to this 

method generally refuse to incriminate themselves or their close working associates, unless law 

enforcement is able to present solid evidence of their involvement. Id. Such evidence did not 

exist at the time of the affidavit, and so a physical search warrant would not have succeeded in 

ascertaining evidence of the full scope of the trafficking operation. Id. 

Given the thorough explanation and analysis in its affidavit, the Court finds that the 

Government sufficiently met the necessity requirement prior to obtaining the wiretap 

authorization. 

3. Minimization 

Defendant finally argues that the Government failed to make an initial prima facie 

showing that it complied with the minimization requirement. Defendant asks that the 

Government first carry its prima facie burden, arguing that he will rebut that showing once it is 

made. 

All wiretap orders must contain a provision that requires that the wiretap “be conducted 

in such a way as to minimize the interception of communications not otherwise subject to 

interception.” 18 U.S.C. § 2518(5). “What the wiretapping statute forbids is failure by the 

government to make reasonable efforts to minimize interceptions of non-pertinent 

communications. Carter, 449 F.3d at 1295. As a result, “[b]efore the court can find that the 

government failed to comply with the minimization requirement, the defendant must show that 

‘some conversation was intercepted which clearly would not have been intercepted had 
25

reasonable attempts at minimization been made.’” United States v. Savoy, 883 F. Supp. 2d 101, 

107-8 (D.D.C. 2012) (quoting United States v. Scott, 516 F.2d 751, 757 (D.C. Cir. 1975); see 

also United States v. Giacalone, 853 F.2d 470, 482 (6th Cir. 1988) (holding that the burden of 

production and persuasion rests on the person seeking to suppress wiretap evidence on the basis 

of improper minimization); United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985) 

(holding that “[a] motion to suppress must in every critical respect be sufficiently definite, 

specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is 

presented” and “must allege facts which, if proven, would provide a basis for relief”); United 

States v. Duarte–Rosales, 2008 WL 140665, at *3 (N.D.Ga. Jan.11, 2008) (rejecting 

minimization challenge because the defendant asserted no specific facts to suggest that the 

requirements were not met). “Without some showing on Defendant's part, this Court cannot 

conclude that the Government did not minimize its interception of non-pertinent calls or that a 

hearing should be held to require the Government to prove that it properly minimized 

interception of irrelevant calls.” United States v. Maldonado, 2014 WL 61483, at *21 (N.D.Ga. 

Jan. 8, 2014). Defendant has not identified conversations containing non-pertinent information 

that ought to have been, but were not, minimized. Absent such identification, the Government 

has not been provided information to which it is required to respond. Consequently, the Court 

cannot find that the Government failed to minimize non-pertinent communications.

* * *

Because the Government’s wiretap meets all three requirements under Title III—probable 

cause, necessity, and minimization—the Court denies Defendant’s motion to suppress evidence 

obtained pursuant to the wiretap. 
26

D. Motion for Disclosure of Brady and Giglio Information and for the Early Production of 

Jencks Information

Defendant next requests that the Court order the Government to provide him with Brady, 

Giglio, and Jencks materials. Def.’s Mot. for disclosure of Brady, Giglio and Jencks Information, 

Feb.5, 2014, ECF No. 19. In its motion, Defendant requests several types of information from 

the Government, but without any specificity. For example, Defendant requests “copies of any 

indictment, complaints or information” brought against “each witness the government intends to 

call at trial, or any member of the family of such witness.” Def.’s Mot. ¶4,Feb. 5, 2014, ECF No. 

19. Similarly, Defendant requests “any material not otherwise listed which reflects or evidences 

the motivation of any witness the government intends to call at trial.” Id. at ¶6. 

As the Defendant correctly notes, and the Government agrees, the information Defendant 

lists in his motion should be properly disclosed by the Government. However, the Government 

states that it understands its Brady and Giglio obligations, has disclosed information pursuant to 

these obligations, and will continue to do so in a timely manner. At the motions hearing, defense 

counsel agreed that the Government has been timely and forthcoming in its disclosure of Brady 

and Giglio information. 

Defendant also requests disclosure of Jencks material at this time. However, as the 

Government correctly notes, this Circuit has held that “the Jencks Act directs that in a criminal 

prosecution, statements made by government witnesses or prospective government witnesses are 

not open to discovery or inspection by the defense until said witnesses have testified on direct 

examination in the trial of the case.” Tarantino, 846 F.2d at 1414. Moreover, Tarantino has 

prohibited early discovery of such information, regardless of whether early disclosure of the 

Jencks material may assist the Defendant in preparing for trial. Id. at 1414-15. “In balancing a 
27

criminal defendant’s need for such statements against legitimate state interests, Congress provide 

for discovery of statements only after the witness has testified, out of concern for witness 

intimidation, subornation of perjury, and other threats to the integrity of the trial process.” Id. at 

1414. This Circuit has previously recognized that there is an inherent violence and danger that 

accompanies the cocaine trade and that disclosure of an informant’s identity exposes them to the 

“real potential of retaliation at the hands of cocaine traffickers.” Mays v. Drug Enforcement 

Admin., 234 F.3d 1324, 1330-31 (D.C. Cir. 2000); see also United States v. Payne, 805 F.2d 

1062, 1065 (D.C. Cir. 1986) (firearms “are as much tools of the [drug] trade as more commonly 

recognized drug paraphernalia”); Navegar, Inc. v. United States, 192 F.3d 1050, 1058 (D.C. Cir. 

1999) (Congressional Record establishes “ disproportionate link between [assault] weapons and 

drug-trafficking and violent crime”); United States v. Holland, 810 F.2d 1215, 1219 (D.C. Cir. 

1987) (drug transactions “contribute directly to the violent and dangerous milieu that Congress 

sought to eliminate”). And the Government has indicated that Defendant has already shown a 

proclivity to disclose the identities of known secret informants to the community at large. Govt.’s 

Opp’n. at 22 n.3. Thus the Court finds that the informants’ safety to be a particularly sensitive 

issue in this matter, which cautions against early disclosure of Jencks information. 

Finally, the Government again states that it understands its obligations under the Jencks Act 

and promises to disclose Jencks material in a timely manner, suggesting the Friday before the 

week that the witness will testify at trial. Govt’s Opp’n at 21. This Court joins the common 

standard practiced by numerous other Judges in this District, and orders the Government to 

provide Defendant with the Jencks materials the Friday before the week that the witness will be 

testifying. 
28

E. Motion to Disclose Identities of Each Confidential Informant Regardless of Whether 

They Will be Called at Trial 

Defendant next moves for the disclosure of the identities of the Government’s 

confidential informants, citing to Roviaro v. United States, 353 U.S. 53 (1957), for the 

proposition that disclosure is necessary to ensure fundamental fairness and due process. Def.’s 

Mot. to Disclose Identities, Feb. 5, 2014, ECF No. 20. The government argues that “the 

disclosure of informants names, to the extent that the Defendant does not already know them, 

would expose those informants to danger in the violent drug community.” Govt.’s Opp’n., 22. 

Moreover, the Government has promised to make any informant who does not testify at trial 

available to the Defendant. 

The “informant’s privilege” is a well-established doctrine recognizing the “government’s 

right to withhold the identity of confidential informants in furtherance of the public’s interest in 

encouraging citizens to share with law enforcement officers any knowledge they have about 

crimes.” Glover, 583 F. Supp. 2d at 11 (citing to Roviaro, 353 U.S. at 59). Nevertheless, this 

privilege is not absolute and must give way if disclosure “is relevant and helpful to the defense 

of an accused, or is essential to a fair determination of a cause. . . .” Roviaro, 353 U.S. at 60-61. 

It is the Defendant who bears the “heavy burden. . . to establish that the identity of an informant 

is necessary to his defense.” United States v. Skeens, 449 F.2d 1066, 1070 (D.C. Cir. 1971). 

In assessing whether disclosure is warranted, “the Court must take into consideration the 

particular circumstances of the case, including the charged crime, the [d]efendants’ possible 

defenses, the potential significance of the informant’s testimony, and other relevant factors.” 

Glover, 583 F. Supp. 2d at 12. Defendant argues that fundamental fairness warrants the early 

disclosure of confidential informants, “in order to investigate bias, motives to fabricate and to 
29

cast doubt upon the credibility of certain witnesses.” Def.’s Mot. to Disclose Identities, 2. 

However, the Defendant does not go further to identify any defenses or other arguments of 

significance that the early disclosure of an informant’s identity might advance. Id.; see also 

United States v. Gaston, 357 F.3d 77, 85 (D.C. Cir. 2004). Moreover, the Government has 

indicated that Defendant has already shown a proclivity to disclose the identities of known secret 

informants to the community at large. Govt.’s Opp’n., 22 n. 3. Thus, as described further above, 

the Court finds the informants’ safety to be a particularly sensitive issue in this matter. 

Additionally, it appears that Rovario is not even applicable here. The Government has 

represented to this Court that there will only be a small number of cooperating witnesses called 

to testify, and that at this time, there are no cooperating witnesses that the Government does not 

intend to call to testify. However, as the Government correctly notes, Roviaro and its progeny 

only apply when the informant does not testify at trial. See United States v. Palfrey, 515 F. Supp. 

2d 120, 126 (D.D.C. 2007); Glover, 583 F. Supp. 2d at 12. Thus, there appear to be no 

cooperating witnesses to which the logic of Rovario applies. 2

Regardless, the Court does not believe that the Defendant shall be prejudiced by a denial 

of this motion. To the extent that the Defendant does not already know the identities of the 

Government’s cooperating witnesses, he shall have adequate time to investigate the biases for 

such a small group of individuals when he receives such information closer to the time of their 

proposed testimony. Moreover, the Government has promised to make non-testifying informants 

available to the Defendant at the commencement of trial, and the Court presumes that such 

 

2

The Court notes that Rovario v. United States, 353 U.S. 53, 65 (1957), involved a case 

in which the Government’s informer was the sole participant, other than the accused, in the 

transaction charged. In the matter at hand however, it is unclear whether the Government has 

employed any cooperating witnesses who were not also participants in, or witnesses of, the 

charged crime. 
30

informants will be made at a “time that affords the defendants a meaningful opportunity to 

ascertain whether these individuals have any information that is material to the defense.” Glover, 

583 F. Supp. 2d at 13. Accordingly, Defendant’s motion to disclose the identities of confidential 

informants is denied. 

F. Motion to Suppress Tangible Evidence 

Defendant moves to suppress tangible evidence obtained pursuant to the Government’s 

warranted search of 8801 Lottsford Road, Apt. 155 in Largo, MD. Def.’s Mot. to Suppress 

Tangible Ev., Feb. 5, 2014, ECF No. 21. During that search, it is alleged that mail matter, 

receipts, tax information, bank documents, and other miscellaneous records were recovered. 

Defendant argues that these tangible items must be suppressed, as the warrant to search the 

property was not supported by probable cause. 

As already stated above, in determining whether probable cause for a warrant exists, a 

federal judge must “simply. . . make a practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit. . . including the ‘veracity’ and ‘basis of knowledge’ of 

persons supplying hearsay information, there is a fair probability that. . . evidence of a crime” 

will be obtained. Illinois v. Gates, 462 U.S. 213, 238 (1983). “While each fact standing alone 

may be insufficient, the combination of all the facts can establish probable cause.” United States 

v. Gilliam, 167 F.3d 628, 633 (D.C. Cir. 1999). It is the duty of a reviewing court “to ensure that 

the magistrate had a ‘substantial basis for. . . conclud[ing]’ that probable cause existed.” Gates, 

462 U.S. at 238–39. 

Defendant makes only one argument in arguing that the affidavit did not establish 

probable cause—that the affidavit provides only a “tenuous nexus between the alleged narcotics 

transaction and the target location.” Def.’s Mot. to Suppress Tangible Ev. at 5, Feb. 5, 2014, ECF 
31

No. 21. This Circuit, however, has rejected such an argument in the past, instead finding 

sufficient probable cause where an affidavit relied on expert testimony that “drug dealers 

frequently keep business records, narcotics, proceeds from sales, and firearms in their houses.” 

United States v. Johnson, 437 F.3d 69, 72 (D.C. Cir. 2006); see also, United States v. Thomas, 

989 F.2d 1252, 1254 (D.C. Cir. 1993) (“observations of illegal activity outside of the home can 

provide probable cause for the issuance of a search warrant...even in the absence of an allegation 

that any illegal activity occurred in the home itself.”). 

In his affidavit, investigator Derek Starliper stated that he had participated in 

investigations of criminal activity, including those pertaining to drug trafficking activities. 

Affidavit in support for Search Warrant of Physical Property, at ¶2, Jan. 31, 2013, Govt. 

Supplement, Ex. 1, ECF No. 30. He has previously worked in the Organized Crime and Drug 

Enforcement Task Force and has experience investigating individuals who “as a part of their 

narcotics trafficking, also commit money laundering offenses and use a variety of means to hide 

the true source of their narcotics income.” Id. at ¶3. Mr. Starliper further attests that, based on 

this training and experience, he knows that “individuals who deal in illegal controlled substances 

keep such substances, as well as paraphernalia, in their residences.” Id. at ¶5a. Moreover, Mr. 

Starliper attests that Mr. Kevin Holland had executed a lease in his name for the identified target 

location. Finally, Mr. Starliper observed Defendant’s car parked in the garage at this location 

immediately following observed narcotics transactions. Id. at ¶ 12. Pursuant to these facts, the 

Court finds that there was a fair probability that the Defendant, who had been adequately 

described as having engaged in drug transactions, would keep contraband or other evidence of 

his crime in his residence, despite the fact that he had not been alleged to have engaged in drug 
32

transactions there. Thus, the Court finds there to be sufficient probable cause for the warrant 

authorizing a search of 8801 Lottsford Road, Apt. 155. 

Defendant also argues that the affidavit establishing probable cause to search 8801 

Lottsford Road, Apt. 155, should be suppressed pursuant to Franks v. Delaware, 438 U.S. 154, 

155-56 (1978), because it relied on misleading material statements, and omitted critical facts that 

would have undermined the basis for the issuing Judge’s finding of probable cause. Def.’s Mot. 

to Suppress Tangible Ev. At 6. In order to challenge an affidavit pursuant to Franks, the 

Defendant must show that “(1) the affidavit contained false statements; (2) the statements were 

material to the issues of probable cause; and (3) the false statements were made knowingly and 

intentionally, or with reckless disregard for the truth.” United States v. Richardson, 861 F.2d 

291, 293 (D.C. Cir. 1988). Franks has also been held to apply to material omissions—“‘material’ 

meaning that their ‘inclusion in the affidavit would defeat probable cause.’” United States v. 

Spencer, 530 F.3d 1003, 1007 (D.C. Cir. 2008) (quoting United States v. Colkley, 899 F.,2d 297, 

301 (4th Cir. 1990)). As a general rule, there is a “presumption of validity with respect to the 

affidavit supporting the search warrant.” Franks, 438 U.S. at 171. 

Defendant argues that the affidavit omitted that, in the Government’s three-year 

investigation of Defendant’s drug activities, law enforcement officers never stopped Defendant 

“while he purportedly was in possession of either drugs or money.” Def.’s Mot. at 6. The 

Defendant concludes that this omission was material because it evidenced the Government’s 

failure, or inability, to corroborate its position that Mr. Holland was selling drugs to confidential 

informants. Id. However, this omission simply cannot defeat probable cause because, despite the 

omission, the affidavit describes with particularity the process by which investigators determined 
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that the Defendant sold drugs to confidential informants. See Affidavit for Search Warrant, ¶8, 

Jan 1, 2013. The Affidavit states in relevant part: 

Between July 2011, and November 2011 , CW-1 arranged and conducted 

four narcotics-related transactions with HOLLAND during which HOLLAND 

sold amounts totaling over 300 grams of cocaine to CW-1. Each quantity of 

narcotics purchased from HOLLAND in the above-mentioned drug transaction 

was submitted to the DEA's Mid-Atlantic Laboratory and found to contain 

cocaine hydrochloride. CW-1 was equipped with an audio/video recording device 

for each transaction. Through surveillance and the down loaded recordings 

obtained from the audio/video recording device law enforcement was able to 

positively identify the individual that CW-1 had met with as HOLLAND. Prior 

to each transaction, CW-1 called HOLLAND using a telephone number 

previously supplied by HOLLAND in order to arrange a time and location to 

meet. Before and after conducting each of the controlled purchases of cocaine, 

law enforcement searched CW-1 and the undercover vehicle for contraband and 

money with negative results. Prior to each transaction, CW-1 was also provided 

an amount of pre-recorded law enforcement funds in order to purchase a quantity

of cocaine from HOLLAND. After each of the controlled cocaine purchases by 

CW-1 from HOLLAND (which were monitored by law enforcement agents), 

CW-1 turned over a quantity of narcotics to law enforcement agents which field 

tested positive for the presence of cocaine.

Id. 

Moreover, as already analyzed above, the Government presented several other facts, 

including the affiant’s experience in narcotics trafficking, to support probable cause to search the 

target property. Following controlled purchases, Defendant’s car was parked in the target 

property’s garage and the lease on the property was registered in his name. Id. at ¶¶12,13. 

Moreover, a reasonable judge reviewing the application at issue would assume that, if the 

affidavit did not state that the defendant had been stopped while in possession of either drugs or 

money, such an event did not occur. After all, had such an event occurred, any reasonable agent 

would have included it as contributing to probable cause, if not outright arrest. Accordingly, 

omitting information that a reviewing judge would have assumed anyway could not be material 

to the probable cause determination. Hence, the Court denies the Defendant’s motion to suppress 

tangible evidence, and for a Franks hearing.
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G. Motion for Discovery of Co-Defendants and Co-Conspirator Statements 

Defendant moves for an order, pursuant to Fed. R. Crim. P. 801(d)(2)(E), mandating that 

the Government disclose in advance of trial any co-defendant or co-conspirator statements that 

the Government plans to admit against him. Def.’s Mot. for Discovery of Co-Defendant and CoConspirator Statements, Feb. 5, 2014, ECF No. 22. However, this Circuit has made clear that 

“the government is not required to provide pre-trial discovery of co-defendant and co-conspirator 

statements.” Govt.’s Omnibus Brief in Opp., 29, March, 7, 2014, ECF No. 29. Indeed, the D.C. 

Circuit has “decline[d] to extend the defendant’s right to discovery beyond that required by 

statute or the Constitution,” and has found that neither the Jencks Act nor the Federal Rules of 

Evidence mandate such disclosures. United States v. Tarantino, 846 F.2d 1384, 1418 (D.C. Cir. 

1988) (per curiam). As a result, “courts in this jurisdiction have no authority to order the pre-trial 

discovery of co-conspirator [or co-defendant] statements, regardless of whether [such 

individuals] will testify at trial.” United States v. Glover, 583 F. Supp. 2d 5, 11 (D.D.C. 2008); 

see also United States v. Edelin, 128 F. Supp. 2d 23, 33 (D.D.C. 2001) (“Criminal defendants are 

only entitled to statements of non-testifying witnesses or co-conspirators if those statements 

qualify as Brady material.”). Accordingly, the Court denies Defendant’s motion for pre-trial 

disclosure of co-conspirator and co-defendant statements. 

IV. CONCLUSION

For the foregoing reasons, Government’s Motions to Admit Evidence Pursuant to Federal 

Rules of Evidence 404(b) and 609(a)(1) are DENIED, and Defendant’s Motion for Suppression 

of Electronic Information Obtained Pursuant to Wiretap, Defendant’s Motion for Disclosure of 

Brady, Giglio, and Jencks Information, Defendant’s Motion to Disclose Identities of Each 

Confidential Informant, Defendant’s Motion to Suppress Tangible Evidence, and Defendant’s 
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Motion for Discovery of Co-Defendant and Co-Conspirator Statements are DENIED. An order 

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: May 30, 2014 RUDOLPH CONTRERAS

United States District Judge