NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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Nos. 17-1985 & 17-1986

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UNITED STATES OF AMERICA

v.

LIONEL CANNON, 

a/k/a Cannon

 Lionel Cannon,

 Appellant

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On Appeal from the United States District Court 

for the Western District of Pennsylvania

(D.C. Nos. 2-14-cr-00213-001 &

2-15-cr-00038-001)

District Judge: Honorable Mark R. Hornak

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Submitted Under Third Circuit L.A.R. 34.1(a)

January 22, 2018

Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges.

(Opinion Filed: February 13, 2018)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

HARDIMAN, Circuit Judge.

Lionel Cannon appeals an order of the District Court denying his motion to 

suppress wiretap evidence of his participation in a drug-trafficking conspiracy. We will

affirm.

I

This case arises out of an investigation into members of the Crips street gang in 

the Homewood neighborhood of Pittsburgh, Pennsylvania. In 2013, two confidential 

sources told authorities that a man named “Cecil Penex” or “Cecil Pentex” was selling 

large quantities of cocaine in Pittsburgh. A multi-agency Task Force subsequently began 

investigating the drug-trafficking activities of various Crips. Between December 2013 

and March 2014, the Task Force sought and obtained three warrants to wiretap a variety 

of target telephones believed to be affiliated with the conspiracy. See 18 U.S.C. 

§ 2518(3).

In May 2014, the Task Force obtained a fourth warrant (Wiretap C). Among other 

things, Wiretap C authorized the wiretap of Target Telephone 11 (TT11), which belonged

to Cecil Pinnix. Wiretap C also identified Cannon as a “Target Subject and/or

Interceptee” over TT11. App. 1435. In support of this classification, the affidavit 

referenced information provided by Confidential Source 8 (CS-8), who provided an 

address and phone number used by Cannon and stated that Cannon used a white 

Chevrolet Malibu to transport large quantities of cocaine from Cleveland, Ohio to 

Pittsburgh.
3

The following month, the Task Force obtained a fifth warrant (Wiretap D), which 

authorized the interception of Cannon’s communications over two of his cell phones

(TT14 and TT15). The affidavit averred that intercepted communications from TT11, 

pen-register and toll-record data, physical surveillance, and GPS data all corroborated the 

information previously provided by CS-8. In addition, CS-8 stated that Cannon mailed 

proceeds from drug-trafficking activity to a man in California named Jason Hunter, and 

provided authorities with what CS-8 claimed was Hunter’s number. Pen-register data 

evidenced communications between Cannon and a number subscribed to Hunter, which 

the Task Force interpreted as further corroborating CS-8’s statements. Finally, the Task 

Force obtained a sixth warrant (Wiretap E) for a third phone used by Cannon (TT16), 

supported in large part by communications intercepted under Wiretap D.

As a result of the investigation, Cannon was indicted for, among other things,

conspiracy to possess with intent to distribute five kilograms or more of cocaine, in 

violation of 21 U.S.C. §§ 841 and 846. Cannon moved to suppress all evidence obtained 

from Wiretaps C, D, and E, claiming the affidavits lacked probable cause and did not 

contain the required showing of necessity. See 18 U.S.C. § 2518(1)(c). Cannon also 

requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978), arguing that the 

District Court should excise allegedly false statements from the affidavits. After oral 

argument and the submission of additional briefs, the U.S. District Court for the Western 

District of Pennsylvania denied Cannon’s motion in all respects. Cannon entered a 

conditional guilty plea, reserving the right to appeal the District Court’s order. This 

appeal followed.
4

II1

On appeal, Cannon again contends that the affidavits lacked probable cause and

the wiretaps were not necessary to the investigation. He does so, however, without telling 

us how or where the District Court’s analysis went astray. Counsel has neither argued

that specific factual findings were clearly erroneous nor addressed the merits and analysis 

of the District Court’s opinion in any meaningful way. Instead, Cannon’s brief

reproduces almost verbatim what he filed in opposition to the Government’s motion to 

dismiss. Compare Cannon Br. 38–51, with App. 977–91 (Wiretap D and E’s probable 

cause); Cannon Br. 56–61, with App. 991–995 (affidavits’ lack of necessity); Cannon Br. 

33–36, with App. 971–74 (Wiretap C’s probable cause and CS-8’s reliability); compare 

also Cannon Br. 24–32, with App. 957–65 (legal standards for probable cause, including 

those governing a Franks hearing, the denial of which was not challenged on appeal); 

Cannon Br. 51–56, with App. 965–69 (legal standards governing necessity).

As a consequence, Cannon’s 37-page argument nowhere cites the District Court 

decision and provides only two citations to the appendix. See Cannon Br. 24–61. 

Submitting a brief so devoid of record citations in support of legal arguments in such a 

fact-bound case is inconsistent with Rule 28(a)(8)(A) of the Federal Rules of Appellate 

Procedure, as well as Rule 28.3(c) of the Third Circuit’s Local Appellate Rules.

 

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction 

under 28 U.S.C. § 1291. “We review the denial of a suppression motion for clear error as 

to the underlying facts, but exercise plenary review as to its legality in light of the court’s 

properly found facts.” United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005).
5

This is not appropriate appellate advocacy. Counsel for appellants “must of 

necessity” identify in the record where the trial court erred in finding the facts or in 

applying the law to the facts. Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404, 407 

(3d Cir. 1980). This duty flows from the fact that we are not a court of first impression, 

and—especially where factual findings are involved—we do not write on a blank slate. 

Our task is to decide whether the findings already made by the District Court were clearly 

erroneous and whether it applied the correct legal standards. By simply reproducing his 

District Court brief, Cannon’s counsel has failed to assist us in discharging our duty. 

Nevertheless, we have performed an independent review of the record and the 

decision of the District Court. And that review has led us to conclude that the District 

Court did not err when it held that the affidavits were supported by probable cause and 

the wiretaps were necessary to the investigation. Accordingly, for the reasons set forth in 

the District Court’s well-crafted opinion, we will affirm its order denying Cannon’s 

motion to suppress.