ELLEN LIPTON HOLLANDER, District Judge.
This Court held two days of motions hearing in January and March 2013, which culminated in a Memorandum Opinion and Order of June 7, 2013 (ECF 205, 206). In the Memorandum Opinion and Order, I granted in part and denied in part Wilford's Motion For Disclosure (ECF 166). In particular, I ordered the Government to produce all directives or instructions issued to federal law enforcement agents involved in the investigation of Wilford that directed compliance with the August 2010 decision of the United States Court of Appeals for the D. C. Circuit in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010); and I denied Wilford's Motion To Suppress (ECF 160), without prejudice to his right to renew his argument as to the inapplicability of the good faith defense to the federal agents' warrantless use of slap-on GPS trackers, based on documents that might be produced by the Government in connection with my ruling as to ECF 166
Thereafter, the Government produced one document under seal 2012 an email of August 6, 2010. On July 25, 2013, Wilford filed a "Request To Reconsider Court's Order Denying Suppression And Request For Franks Hearing Based On New Discovery" ("Motion for Reconsideration"), with exhibits (ECF 217). The Government then filed a response in opposition. ECF 222. See also ECF 243 (Letter of 11/1/13 from defense counsel to Court, outlining issues). On November 6, 2013, I held an evidentiary hearing in regard to the Motion for Reconsideration, at which DEA Special Agents Todd Edwards and Mark Lester testified, along with defendant Richard Wilford.
After the hearing, the Government submitted a letter memorandum to the Court, ECF 249, complaining that Wilford belatedly raised a new issue pertaining to F. R. Crim. P. 41(d). In its view, the contention was waived because it was untimely. See Fed. R. Crim. P. 12(b)(3)(C), 12(c), and 12(e). Alternatively, the Government argued that Wilford's new arguments lack merit.
Preliminarily, in ECF 156, the Court extended the motions deadline for Wilford to November 11, 2012, to permit him to file supplemental motions. Thus, to the extent that defense counsel has presented new arguments that could have been timely raised, such as those under F. R. Crim. P. 41, I agree with the Government that the contentions are subject to waiver. However, given the importance of this case to the defendant (and to avoid any potential claims of ineffective assistance of counsel), I will overlook any failure of the defense to have raised contentions that should have been raised previously. Nevertheless, for the reasons set forth below, and for the reasons set forth in my earlier opinion (ECF 205), incorporated herein, Mr. Wilford's arguments, new and old, do not persuade me that I erred in my ruling as to the good faith defense. I will also deny the request for a Franks hearing based on new discovery. But, as explained, infra, I will grant Wilford's request for reconsideration of the Court's ruling, in part, and deny it, in part.
Mr. Wilford urges the Court to reconsider its decision with respect to cell phone pinging because, in State court, when the agents sought authorization in connection with the wiretap applications, the case agents did not rely on the statute used to support their request for authorization to conduct cell phone pinging. In particular, in regard to cell phone pinging, law enforcement relied on Md. Code, § 10-4B-01 of the Courts and Judicial Proceedings Article ("C.J.") (the pen register statute). Yet, in regard to the wiretap application, law enforcement relied on C.J. § 10-408(b)(2) (the "wiretap" statute). In my view, the distinction is not material. The agents were not precluded from relying on two separate statutes, and the use of one statute in one context does not become improper merely because, in another context, the agents relied on a different statute. In either event, the request for pinging data satisfied the requirements of the Fourth Amendment. See Memorandum Opinion, ECF 205 at 52-54.
In his Motion For Reconsideration, Wilford also contends that the application for Trap and Trace for phone number XXX-XXX-XXXX, dated October 27, 2010, contains the same errors as the application for Trap and Trace for phone number XXX-XXX-XXXX, dated November 18, 2010. The application of November 18, 2010, erroneously indicated that in August 2010 CS1 named Wilford as the source of drugs when, in fact, CS1 named Hayes. In addition, it erroneously recited that 410-984-4229 was in constant contact with Hayes' target phone and that it was used by Wilford when, in fact, it was registered to Michael Smooth. Notably, however, Smooth's company, B'More Dumping, shared an address with Wilford's business, R.A.W. Enterprises, which understandably led to confusion in the early stages of the investigation.
The application of October 27, 2010, was authored by Special Agent Mara Hewitt, who also authored the application of November 18, 2010. The applications were submitted just a few weeks apart, and it is apparent that, in the later application, Special Agent Hewitt merely perpetuated the mistakes contained in her earlier application. Based on Agent Hewitt's testimony at the prior hearing, there was not a shred of evidence to suggest that she acted deliberately or recklessly. She was, at worst, inexperienced and careless. And, as I noted earlier, the agents had no need to mislead, because by November 18, 2010, they had ample evidence to support a finding of probable cause as to Wilford's involvement. See ECF 205 at 59-60.
As indicated, in response to my Order of June 7, 2013 (ECF 206), the Government produced a single email that was disseminated by the Office of Enforcement Operations ("OEO") of the United States Department of Justice, on or about August 6, 2010, in response to the Maynard decision. See ECF 222-1(Sealed). The United States Attorney's Office in Maryland was a recipient of the email. AUSA Barbara Sale then forwarded it to other prosecutors in the United States Attorney's Office in Maryland. The prosecutor in this case, Assistant United States Attorney John Sippel, represented that he received the email and promptly forwarded it to DEA Agents Mark Lester and Todd Edwards, with whom he had been working on an unrelated matter.
In particular, the email disseminated by OEO on August 6, 2010, advised of the Maynard decision. The subject line of the OEO email stated: "URGENT UPDATE: Slap-on GPS vehicle tracking devices." The email rated the importance of the content as "High." The text provided, in part: "OEO believes that the court's decision is fundamentally wrong and incompatible with established Fourth Amendment principles. (As a counterpoint, we note the decision last week in United States v. Jesus-Nunez, 2010 WL2991229 (M.D. Pa. July 27, 2010), finding such surveillance permissible over a period of more than eleven months.") OEO's email also stated: "In the meantime, OEO's view is that other circuits are unlikely to follow Maynard, and that as a formal legal matter the use of magnetic vehicle tracking devices without a warrant ought to be upheld elsewhere in the federal courts." Nonetheless, OEO warned: "[P]rosecutors and agents outside the 7th, 8th, and 9th Circuits may wish to consider obtaining warrants as a precaution pending final disposition of ...