In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3411

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONALD Q. TERRY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 CR 146—Charles N. Clevert, Jr., Judge.

ARGUED MARCH 30, 2009—DECIDED JULY 16, 2009

Before KANNE, WOOD, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. In October 2007, the defendant,

Ronald Terry, pled guilty to conspiring to distribute

controlled substances and was sentenced to more than

twenty years in prison. In his plea agreement, Terry

reserved the right to appeal adverse decisions on his

pretrial motions, which included the denial of a motion

to suppress evidence. Terry appeals that ruling, and

we now affirm.
2 No. 08-3411

I. BACKGROUND

The government began investigating the drug trafficking activities of Mark Cubie, one of Terry’s co-defendants, in late 2004. As part of the investigation, authorities

monitored Cubie’s telephone communications using

“pen registers” and “trap and trace devices.” A pen

register records the telephone numbers of outgoing

calls made from the monitored phone, while a trap and

trace device records the telephone numbers of those

calling the phone. Neither method records conversations; both compile only numerical data.

In early April 2005, investigators noted a significant

change in calling patterns on Cubie’s telephone, which

was registered with a number ending in 1716. This

change indicated that the phone was no longer in

Cubie’s possession. The government subsequently identified Cubie’s new telephone, which ended in 5638. As

we discuss below in the context of Terry’s suppression

hearing, the way in which this identification occurred is

at the center of the present dispute.

On April 12, 2005, authorities requested authorization

to monitor 5638 with a pen register and a trap and trace

device. On the same day, acting pursuant to 18 U.S.C.

§ 2703(d), they also obtained 5638’s past phone records.

Using data gathered from these sources, investigators

later received permission to place Title III wiretaps on

the telephones of Cubie and Orlandes Nicksion, another

of Terry’s co-defendants. Evidence compiled from

these wiretapped conversations ultimately led to Terry’s

indictment.
No. 08-3411 3

The grand jury returned its first indictment on June 7, 2005. 1

With the exception of a firearms charge that was later dropped,

the original indictment alleged essentially the same charges

against Terry as the third superseding indictment. A superseding indictment issued on July 19, 2005, followed by a

second superseding indictment on August 22, 2006; neither

superseding indictment contained any material changes

related to Terry.

Terry’s standing to challenge the wiretap evidence is pro2

vided by statute and is not disputed by the government. See

18 U.S.C. §§ 2510(11), 2518(10)(a). The statute provides that

any “aggrieved person,” defined as one “against whom the

interception was directed,” id. § 2510(11), may move to suppress wiretap evidence on grounds that it was unlawfully

intercepted, id. § 2518(10)(a).

On September 18, 2007, a federal grand jury in the

Eastern District of Wisconsin returned a third superseding indictment against six men, including Terry,

Cubie, and Nicksion. Three of the indictment’s nine 1

counts, all involving various drug and related firearm

offenses, named Terry as a defendant.

Terry filed a motion to suppress on October 20, 2006.

Terry presented two arguments: first, that law enforcement illegally obtained information that it then used to

identify and monitor Cubie’s 5638 telephone, thereby

tainting any evidence derived therefrom, see 18 U.S.C.

§§ 2515, 2518; and second, that the government knowingly failed to disclose the illegality of these intercepts,

in violation of Franks v. Delaware, 438 U.S. 154 (1978).2

Both claims hinge on the legality of the government’s

investigation into Cubie’s new telephone number.
4 No. 08-3411

A federal magistrate judge held two hearings on Terry’s

motion. At the first, held December 6, 2006, the government presented a single witness, Dan Thompson, a detective with the Milwaukee Police Department. Detective

Thompson detailed the process he followed to obtain

court orders for the pen register, trap and trace device,

and § 2703(d) report on 5638. He then discussed

using the information gleaned from these sources to

acquire authorization for the Title III wiretap on that

same phone. According to Thompson, the government

used two primary clues to identify 5638: (1) a confidential

informant’s call to 1716; and (2) a comparison of 1716’s

old calling patterns with the past and current calling

patterns of phones associated with Nicksion and Terry.

First, Thompson stated that on April 4, a confidential

informant, acting at the behest of investigators, telephoned 1716 and asked to speak with Cubie. A female

answered the call and told the informant that the phone

was no longer Cubie’s. According to Thompson, 1716’s

pen register indicated an outgoing call to 5638 “[a] couple

of hours after [the confidential informant’s call].” The

timing of this call from 1716 to 5638 was later questioned during the second suppression hearing.

Second, Thompson testified that he had analyzed call

information taken from preexisting pen registers and

trap and trace devices on phones belonging to Nicksion

and Terry. Thompson stated that Nicksion and Terry

were placing calls to and receiving calls from 5638 in

frequencies that were similar to their previous calling

patterns with 1716, while calls to and from 1716 had

stopped altogether.
No. 08-3411 5

In his motion and at the hearing, Terry sought to discredit Thompson. Terry targeted one attack at a supplemental report, prepared by Thompson, that documented

the calling patterns of Cubie’s new 5638 number. Thompson’s report contained two date/time stamps. The first

stamp, which appears on the report’s first page, was

entered manually by the person creating the report. The

second stamp, located on the report’s second page, was

automatically generated by the computer program.

The manually entered date/time stamp was April 11 at

4:00 p.m. The automatically generated stamp was a day

later, on April 12 at 3:18 p.m.

From this evidence, it was not immediately clear

whether the report was created on April 11 or April 12, a

fact that Terry argued was of significance. According

to Terry, if Thompson created the report on April 11,

it would support Terry’s contention that the government actually possessed 5638’s call data before receiving

judicial approval to obtain such data on April 12. At the

hearing, Thompson explained the discrepancy as an

inadvertent mistake—he had simply erred and entered

the incorrect date.

On cross-examination, Terry also probed Thompson’s

statements about the use of data collected from Terry’s

telephone to help identify 5638. According to Terry,

authorities did not receive permission to monitor his

phone until May 2005, several weeks after the April 12

court authorization for 5638. Thompson, however, stood

firm in his claim that authorities were legally monitoring

Terry’s call data prior to April 12 and that he had used
6 No. 08-3411

such data to identify 5638. At the conclusion of the

hearing, Terry’s counsel requested documentation

proving that the government was lawfully monitoring

Terry’s telephone before April 12.

The government, however, was unable to provide

such proof. Indeed, it discovered that it had not been

monitoring Terry’s phone at that time. Immediately

following the first hearing, the government filed a

motion to reopen, accompanied by an affidavit

from Detective Thompson confessing errors of fact in

his testimony. According to Thompson, he testified

mistakenly that he had relied on pen/trap data gathered

from Terry’s phone to identify 5638 as Cubie’s new telephone number. After the hearing, Thompson learned that

no orders authorizing the collection of such data from

Terry’s two telephones were issued until May 3, 2005,

meaning that he could not possibly have used Terry’s

phone data to identify Cubie’s new number the month

before. In his affidavit, Thompson reaffirmed the remainder of his testimony from the first hearing, particularly

those statements related to the confidential informant’s

telephone call to 1716 and the monitoring of Nicksion’s

phone activities. It was this information, Thompson

stated, that allowed him to connect 5638 with Cubie.

The court granted the motion to reopen and held a

second hearing on Terry’s motion to suppress on

December 20, 2006. Thompson testified again, explaining

his mistake during the previous hearing. An additional

discrepancy emerged at the second hearing regarding

the timing of the phone call from 1716 to 5638. At the
No. 08-3411 7

first hearing, Thompson testified that 1716 had called

5638 after receiving the informant’s call on April 5. Phone

data, however, revealed that 1716’s new user had called

5638 on March 31, six days before the April 5 phone call

from the confidential informant. Thompson explained

that he had again been mistaken—that he had learned of

the call between 1716 and 5638 after the informant’s call

to 1716, not that the call had actually occurred subsequent to the informant’s call.

Thompson’s reliance on Nicksion’s phone data

remained unchanged. In early April, Nicksion had

stopped communicating with 1716 and begun calling 5638

at a frequency similar to his previous calls to 1716.

Near the conclusion of his testimony, Thompson said:

“Right now I’d have to say Orlandes Nicksion’s pen

was the key to us identifying that phone number . . . .”

As Terry pointed out, Thompson’s new focus on

Nicksion’s number alone contradicted a statement the

government made in its § 2703(d) application, filed

on April 12. There, as one of its grounds for issuing the

§ 2703(d) order, the government offered “[a]n analysis of

the telephone records pertaining to the most commonly

called numbers to [1716] over a two month period” (emphasis added). If, as Thompson contends, he had relied on

analysis of only Nicksion’s number, the use of the

plural “numbers” in the § 2703(d) application would be

at odds with Thompson’s testimony.

In his recommendation to the district judge, the magistrate judge found that Thompson’s original misstatements

were mistakes made in good faith—not, as Terry asserted,

evidence of governmental indiscretion. The magistrate
8 No. 08-3411

judge determined that Thompson’s testimony, including

his explanations for the aforementioned discrepancies,

was credible and recommended to the district court that

it deny Terry’s motion to suppress. The district judge

adopted the recommendation in an order dated

August 21, 2007.

Terry eventually pled guilty to the charge contained in

Count One—conspiring to distribute more than five

kilograms of cocaine, fifty grams of crack, and an unspecified quantity of marijuana in violation of 21 U.S.C.

§ 841(a)(1)—and was sentenced to 260 months in prison,

to be followed by five years of supervised release. In

exchange for his plea, the government dismissed the

remaining two counts against Terry. It also allowed him

to reserve the right to appeal issues raised in any

pretrial motions, which included his motion to suppress. Terry now appeals the district court’s decision

on this motion.

II. ANALYSIS

In essence, Terry asks us to overturn the finding that

Detective Thompson was a credible witness. To convince

us to take such a drastic step, Terry must traverse a

difficult path.

When a credibility finding is based upon testimony

presented during a suppression hearing, we will reverse

such a determination only when it is clearly erroneous.

United States v. Huebner, 356 F.3d 807, 812 (7th Cir. 2004).

Indeed, we provide “special deference” to credibility
No. 08-3411 9

findings, based on the lower court’s superior position

to evaluate a witness. United States v. Whited, 539 F.3d 693,

697 (7th Cir. 2008); see also Huebner, 356 F.3d at 812 (commenting on the trial judge’s ability “to observe the

verbal and nonverbal behavior of the witnesses . . . in

contrast with merely looking at the cold pages of an

appellate record” (emphasis and quotations omitted));

United States v. Mancillas, 183 F.3d 682, 710 (7th Cir. 1999)

(“[W]e do not second-guess the . . . judge’s credibility

determinations because he or she has had the best opportunity to observe . . . the subject’s . . . facial expressions,

attitudes, tone of voice, eye contact, posture and body

movements . . . .” (alterations in original) (quotations

omitted)). We will credit testimony found credible by

the court below “ ‘unless it is contrary to the laws of

nature, or is so inconsistent or improbable on its face

that no reasonable factfinder could accept it.’ ” Mancillas,

183 F.3d at 710 (quoting United States v. Yusuff, 96 F.3d

982, 986 (7th Cir. 1996)).

As both the magistrate judge and the district judge

acknowledged, there were a number of discrepancies

surrounding Detective Thompson’s testimony and the

documentary evidence presented in support thereof.

First, there was the misdated report, which, if it had

been created on the date entered by Thompson, would

suggest that Thompson had early access to unauthorized

information; this error Thompson chalked up as “a typo.”

Second, he said that the new user of 1716 placed a call

to 5638 within a “couple of hours” of receiving a call

from a government informant; when confronted with
10 No. 08-3411

the phone records, however, he admitted that 1716

had telephoned 5638 several days before the informant’s

call. Third, Thompson originally stated that Terry’s

phone data provided a link between 5638 and Cubie,

only to recant the statement after he realized that the

government did not begin monitoring Terry’s phone until

three weeks after it identified the 5638 number. And

fourth, we learned of the § 2703(d) application, which

discussed the analysis of data gleaned from the phones

associated with 1716’s “frequently called numbers,”

although Thompson eventually testified that he relied

on the calling pattern of only one number, Nicksion’s,

to identify 5638.

These facts are indicative of less-than-exemplary detective work and are certainly unfavorable to the government. Detective Thompson’s missteps in his written

documentation and testimony were far cries from the

accuracy that we expect from those empowered with

restricting the freedom of our citizens. Before a person

is sent to prison for any length of time, let alone twenty

years of his life, he is correct to demand accountability

from those who are responsible for sending him there.

As we know, however, perfection is impossible. So although Thompson’s several mistakes might be regrettable,

they were, as the magistrate and district judges rightfully concluded, nothing more than mistakes.

As we have said: “ ‘[T]estimony is not incredible as a

matter of law . . . only because the witness may have

been impeached by certain discrepancies in his story, by

prior inconsistent statements, or by the existence of a
No. 08-3411 11

motive to provide evidence favorable to the government.’ ” Huebner, 356 F.3d at 813 (second alteration in

original) (quoting United States v. Scott, 145 F.3d 878,

883 (7th Cir. 1998)). Each of these circumstances existed,

to one degree or another, in this case. Yet after a

thorough review of the relevant facts, the magistrate

judge found Terry’s arguments unavailing. The facts

were only that the government had committed a series

of minor errors, not that it had acted illegally.

Staring at the pages of a cold record, we are in no

position to reassess the credibility of the sole witness

who appeared at the suppression hearing. That job belonged to the magistrate judge. The district judge

properly deferred to his judgment; we, in turn, will

defer to them both. This is not, as Terry contends, a

“remarkable case” warranting reversal. There is nothing

in the record that compels the conclusion that the government acted illegally in identifying Cubie’s 5638 number. The district court’s decision was not clearly erroneous

and must stand.

III. CONCLUSION

We AFFIRM the decision of the district court to deny

Terry’s motion to suppress.

7-16-09