UNITED STATES OF AMERICA, Plaintiff, v. GARY K. WILSON, ANTHONY COLLINS, CHARLES WOOTEN, CASTRA PIERRE-LOUIS, HAROLD WIGGINS, LARRY GREEN, and GENA WIGGINS, Defendants CASE NO: 04-20487-CR-COOKE/MCALILEY United States District Court, S.D. Florida Entered on FLSD Docket May 10, 2005 Counsel Adam S. Fels, Arimentha R. Walkins, Frank Tamen, Aimee C. Jimenez, Todd William Mestepey, United States Attorney's Office, Miami, FL, for Plaintiff. McAliley, Chris M., United States Magistrate Judge REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTIONS TO DISMISS AND TO SUPPRESS *1 This Report and Recommendation addresses a motion to dismiss the indictment, several motions to suppress wiretap evidence and corresponding motions for a Franks hearing. Those motions, and related pleadings and orders, are identified as follows: 1) Defendant Larry Green’s Motion to Dismiss Indictment, [DE 60.8/16/04].[1] (“Green’s Motion to Dismiss”). The pleadings and court orders pertinent to this Motion are found at docket entries: 61, 112, 125, 134, 147, 181, 188, 196. 2) Defendant Gena Wiggins’s Motion to Suppress Wiretap Evidence, [DE 65, 8/16/04]. (“Wiggins’s Motion to Suppress”). The pertinent pleadings and court orders are found at docket entries: 92, 97, 125, 136, 143, 145, 147. 3) Defendant Gena Wiggins’s Amended Sworn Request for Franks Hearing. [DE 172, 1/5/05; DE 185, 1/11/05]. (“Wiggins’s FranksMotion”). This Motion supplements Ms. Wiggins’s Motion to Suppress, noted above. The pertinent pleadings and court orders are found at docket entries: 97, 181, 185, 189, 197. 4) Defendant Larry Green’s Motion to Suppress the Results of the Interceptions of Wire Communications, [DE 62, 8/16/04]. (“Green’s Motion to Suppress”). The pertinent pleadings and court orders are found at docket entries: 63, 112, 125, 136, 147, 196, 299, 301. 5) Defendant Larry Green’s Supplemental Motion to Suppress. [DE 182, 1/7/05]. (“Green’s Franks Motion”). This Motion supplements Green’s Motion to Suppress, noted above. The pertinent pleadings and court orders are found at docket entries: 112, 181, 189, 196, 299, 301. 6) Defendant Anthony Collins’s Supplement to Co-Defendants. Green and Wiggins. Motions to Suppress Wiretap Evidence. [DE 121, 11/17/04]. (“Collins’s Motion to Suppress”). The pertinent pleadings and court orders are found at docket entries: 97, 112, 181, 183, 189. 7) Defendant Anthony Collins’s Second Supplement to Co-Defendants. Green and Wiggins. Motions to Suppress Wiretap Evidence and Sworn Supplemental Request for a Franks Hearing, [DE 176, 1/5/05; DE 183, 1/7/05]. (“Collins’s Franks Motions”). The pertinent pleadings and court orders are found at docket entries: 97, 112, 181, 189. The Honorable Marcia G. Cooke referred each of these Motions to the undersigned for report and recommendation. [DE 97, 112].[2] Each Defendant has either in writing, or orally at hearings, adopted the co-defendants’ above-filed motions.[3] On March 4, 2005, I held a hearing on the above-listed motions, and the transcript has been filed with the Court. [DE 242]. I. Background. A. The Superseding Indictment. *2 The Defendants, alleged to be members of a drug-trafficking organization, are charged in a multi-count Superseding Indictment with various offenses (the “present Indictment”). [DE 220]. Specifically, all remaining Defendants[4] are charged in Count I with conspiracy to possess with intent to distribute cocaine and cocaine base. (Count I, or the “drug conspiracy”). All but Defendant Castra Pierre-Louis (“Pierre-Louis”) are charged in Count II with conspiracy to violate the Hobbs Act by robbery and extortion. (Count II, or the “Hobbs Act conspiracy”). Again, all Defendants, except Pierre-Louis, are charged in Count III with attempt to possess with intent to distribute cocaine. (Count III, or the “narcotics attempt charge”). Finally, one Defendant, Charles Wooten, is charged in Count IV with carrying a firearm in relation to a crime of violence or drug trafficking crime, and in Count V with being a felon in possession of a firearm. (The “firearms charges”). In addition, the Government seeks criminal forfeiture of certain items. B. The wiretaps. 1. The first and second wires (Alan Ross’s telephone). This prosecution is the result of evidence gathered, inter alia, from three wiretaps. The three orders authorizing these interceptions were signed by the Honorable Paul C. Huck. The first such order, entered on July 28, 2003, authorized the interception of communications on a cellular telephone used by Allen Ross for a period of thirty days (the “first wire”). [Case No. 04-20204-CR-COOKE, DE 166, Ex. 8]. On August 28, 2003, Judge Huck authorized a thirty day extension of that interception (the “second wire”) [collectively, the first wire and second wire are referred to as the “Ross wires”]. [Id. at Ex. 9]. 2. The third wire (Gary Wilson’s telephone). The Government intercepted calls on the first two wires between Allen Ross and a male initially known only as “G,” but later identified as Defendant Gary Wilson (“Wilson”). On September 29, 2003, upon termination of the Ross wires, the Government applied for authorization to intercept communications over the cellular telephone used by “G.” [Id. at Ex. 7]. The targets of that interception were “G,” Ross, and Defendant Anthony Collins (“Collins”). [Id. at Ex. 7, ¶ A, pp. 2-3]. Special Agent Kevin O’Rourke(“O’Rourke”) stated the objective of the third wire was to gather evidence of: “the identities and roles of participants in the illegal narcotics activities, the manner in which those activities were conducted, other locations utilized in furtherance of those activities, and the distribution of contraband and monies utilized in and obtained by these activities ....” Id. at Ex. 7, ¶ C, p. 4] [hereafter “the objective”]. O’Rourke stated that “G” was believed to be a United States citizen residing in Miami, Florida, who supplied drug distributors in Miami, Florida. [Id. at Ex. 7, ¶ 13(A) ]. O’Rourke summarized the conversations intercepted between Ross and “G,” in particular, their references to “G” supplying cocaine to Ross and others. [Id. at Ex. 7, ¶¶ 25-43, 48-49]. O’Rourke explained the telephone number used by “G” was actually subscribed in the name of “Audreshia Lewis” who resided at, and used as her billing address, 3595 N.W. 188th Street, Opa Locka, Florida. [Id. at Ex. 7, ¶ 50]. The Agent opined that “G” had placed the telephone service in Lewis’s name with her knowledge. [Id. at Ex. 7, ¶ 50]. Agent O’Rourke advised that a pen register and trap and trace device had been installed on “G’s” cellular telephone, pursuant to court order, from August 1 to September 16, 2003. [Id. at Ex. 7, ¶¶ 51-52]. During that period 8,985 calls were documented on G’s telephone[5]including: 874 calls between “G” and Ross’s telephone [Id. at Ex. 7, ¶ 52(a) ] and 140 calls between “G’s” telephone and that subscribed to by Collins. [Id. at Ex. 7, ¶ 52(a) ]. Both Ross and Collins had criminal histories associated with drug trafficking. [Id. at Ex. 7, ¶ 52]. *3 On September 29, 2003, Judge Huck granted the Government’s application (the “third wire” or the “Wilson wire”). [Id. at Ex. 10]. With a few exceptions noted below, the application for the third wire, the supporting affidavit, and the resulting order, are the subject of the Motions addressed herein.[6] II. Green’s Motion to Dismiss [DE 60]. In this Motion, Larry Green (“Green”) urges the Court to sanction the Government for its alleged failure to meet its obligations under 18 U.S.C. Section 2517(5) (“Section 2517(5)”). For the reasons stated herein, I recommend that the Motion be denied. A. The third wire. The application for the third wire sought permission to intercept communications that are evidence of narcotics and money laundering offenses.[7] The Order authorizing the third wire found probable cause that evidence of the following offenses would be obtained by interception of “G’s” telephone: “possession and distribution of controlled substances, in violation of Title 21, United States Code, Section 841(a)(1); the use of a communication facility in the commission of narcotics trafficking offenses, in violation of Title 21, United States Code, Section 843(b); and conspiracy to commit narcotics trafficking offenses, in violation of Title 21, United States Code, Section 846 and aiding and abetting the aforementioned crimes, in violation of Title 18, United States Code, Section 2.” [Case No. 04-20204-CR-COOKE, DE 166, Ex. 10, ¶ a]. The Order directed the Government to file three reports with the Court at intervals of ten days “showing what progress has been made toward achievement of the authorized objectives and the need for interception” [hereafter, “progress reports”]. [Id. at 6]. Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520 (“Title III”) governs the interception of electronic communications. Its many provisions include the following: When an investigative or law enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized herein, intercepts wire, oral or electronic communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable. *4 18 U.S.C. § 2517(5) (emphasis added). Subsections (1) and (2), referenced above provide, in essence, that law enforcement officers may use information learned from electronic surveillance in the proper performance of their official duties, and may disclose this information to other law enforcement officers when appropriate to the performance of their official duties. 18 U.S.C. §§ 2517(1) and (2). Subsection (3) governs the testimonial use of this evidence: Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof. 18 U.S.C. § 2517(3) (emphasis added). On October 18, 2003, during the execution of the third wire, Government agents intercepted telephone conversations concerning the kidnaping of Laguerre and his three-year-old goddaughter. The kidnaping was allegedly orchestrated by several of the Defendants to avoid paying a drug debt to Laguerre, one of their suppliers, and to force him to disclose the location of his drug supply. The Government detailed two of these conversations in its second progress report to Judge Huck, [Case No. 04-20204-CR-COOKE, DE 166, Ex. B, pp. 10-15], and otherwise described these telephone conversations as follows: Approximately 55 calls intercepted on October 18, 2003 were related to the abduction of Rodney Laguerre and kidnaping of his three year old God daughter Manaya Lavalliere. The abduction/kidnaping was orchestrated by Gary Wilson and conducted by Anthony Collins, Derek Scott, Charles Wooton, and several other unidentified males. The victim (a suspected supplier of cocaine) was severely beaten, threatened with a hot iron and being shot. The attackers demanded the victim tell them where the money was hidden. The victim was bound, gagged, and forced into the trunk of a vehicle driven by Scott, which was stopped by law enforcement after receiving a “911 call” from a motorist. The motorist provided a license plate when he/she noticed the trunk of the vehicle ajar and an individual attempting to remove himself. Scott and Wooton were apprehended after a short vehicle and foot chase. Two handguns were recovered, as well as other items/evidence related to the abduction. The three year old was released at approximately 6:00 A.M. on 10/19/03, after private negotiations between the victims family and abductors. [Id. at 10, n.1]. On October 21, 2003, Gary Wilson’s cellular telephone service terminated and, as a result, the third wire concluded. [DE 242, Hearing Transcript at 37]. B. The original Indictment (Case No. 04-20204-CR-COOKE). Thereafter, the Government presented evidence of the intercepted communications to a grand jury, including the October 18, 2003 interceptions, and asked the grand jury to return an indictment charging not only narcotics offenses, the authorized focus of the third wire, but also a Hobbs Act conspiracy and firearms charges. On April 2, 2004, the grand jury returned the original Indictment in this matter, in Case Number 04-20204-CR-COOKE (the “original Indictment”), with charges nearly the same as those in the current Superseding Indictment. In particular, the original Indictment included a narcotics conspiracy, Hobbs Act conspiracy, narcotics possession attempt, firearms counts and forfeiture. [Case No. 04-20204-CR-COOKE, DE 3].[8] *5 Most of the Defendants were arrested on April 14, 2004, with the exception of Defendants, Anthony Collins and Charles Wooten, who were arrested shortly thereafter.[9] On the same date, in a motion filed with Judge Huck, the Government notified the Court that the grand jury had returned an Indictment on April 2, 2004, charging various defendants who had been the subject of the wire with conspiracy to possess cocaine and “other related charges.”[10] Anticipating bail and detention hearings, the Government sought and was given permission to produce at those hearings the application for the third wire, the order authorizing that interception, and related materials. [DE 284, Ex. C]. Thereafter, on April 21, 2004, Defendant Green had a pre-trial detention hearing. [Case No. 04-20204-CR-COOKE, DE 53, 70]. In his Motion to Dismiss, Green contends that at this hearing the Government utilized evidence obtained from the third wire, including Green’s alleged role in the October 18th kidnaping, over Green’s objection that this was in violation of Section 2517(5). [DE 61, p. 19]. I could not independently verify this from a review of the Court’s record, and Green did not file a transcript of his pretrial detention hearing. [See Case No. 04-20204-CR-COOKE, DE 53, 70]. Pretrial detention orders for Defendants, Wilson [Case No. 04-20204-CR-COOKE, DE 107, p.2], and Gena Wiggins [Id. at DE 69, p. 2; DE 173], do indicate that wiretap evidence was introduced at those hearings. C. Green’s motion to dismiss the original Indictment. The Government’s compliance with 18 U.S.C. Section 2517(5) was again raised, on June 3, 2005, when Green moved to dismiss the original Indictment. [Case No. 04-20204-CR-COOKE, DE 134, 135]. Specifically, Green complained that the Order authorizing the interception of Wilson’s cellular telephone only authorized the interception of communications regarding narcotics trafficking offenses, that the Government intercepted violations of the Hobbs Act, 18 U.S.C. § 1951(a), and made testimonial use of this evidence before the grand jury to secure an indictment, charging both narcotics trafficking and Hobbs Act conspiracies and later used this information at Green’s pretrial detention hearing, and in so doing violated Section 2517(5)’s mandate that the Government get a prior disclosure order. In that motion, Green argued that the appropriate remedy for the Government’s violation of Title III, was dismissal of the Indictment. [Case No. 04-20204-CR-COOKE, DE 135]. In its response the Government made essentially two arguments.[11] [Case No. 04-20204-CR-COOKE, DE 153]. First, it argued that all of the intercepted conversations were made in furtherance of the charged conspiracy to possess with intent to distribute cocaine. In particular, it alleged that Defendant Gary Wilson (“Wilson”) owed Laguerre a drug debt, and decided to kidnap Laguerre, and possibly kill him, as a way of avoiding that debt. The kidnaping was also intended to force Laguerre to reveal the whereabouts of his cocaine supply. Since the kidnaping, and the telephone conversations about it, were undertaken in furtherance of the narcotics conspiracy, the Government contends that the October 18th telephone discussions fell within the order authorizing the third wire. Therefore, the Government did not need a subsequent order under Section 2517(5) to present this evidence to the grand jury. Second, the Government argued that in its second progress report, submitted to Judge Huck and signed by him on October 22, 2003, it informed the Court of the October 18, 2003, interceptions regarding the kidnaping, and that by so informing the Court, the Government effectively satisfied Section 2517(5).[12] D. The Government presents its evidence to a new grand jury. *6 While the first motion to dismiss was pending and ripe before me, pursuant to orders of reference from Judge Cooke [DE 155, 7/7/04; DE 160, 7/13/04], the Government sought to cure its alleged violation of Section 2527(5) in the following manner. On July 8, 2004, the Government filed a motion with Judge Huck for authorization, pursuant to Section 2517(5), to make testimonial use of evidence derived from the Wilson wire, in particular, evidence relating to carrying a firearm in relation to a crime of violence or drug trafficking crime, 18 U.S.C. § 924(c), and a Hobbs Act robbery, 18U.S.C. § 1951(a). [DE284, Ex.D]. In making this request, the Government informed Judge Huck that Green had filed motion to dismiss the Indictment for noncompliance with Section 2517(5) and that this motion was pending before Judge Cooke. Further, it cited, inter alia, United States v. Shields, 999 F.2d 1090, 1096-97 (7th Cir. 1993), as authority that 1) the Government had not violated Section 2517(5) and 2), even if it had, it could cure the violation by obtaining a Section 2527(5) order for the additionally intercepted crimes, and thereafter present that evidence to a new grand jury. The Government advised Judge Huck that, “in an abundance of caution,” it was considering taking this step, [DE 284, Ex. D, ¶13], in which case it would move to dismiss the original Indictment and replace it with the substitute Indictment. The Government filed this motion ex parte, under seal, and it was granted without a hearing on the same date. [Id. at Ex. D].[13] E. The original Indictment is dismissed without prejudice and the new Indictment is filed. On July 15, 2004, armed with its Section 2517(5) order, the United States presented its evidence to a new grand jury, which returned an Indictment identical to the original Indictment that was assigned this case number. [DE 1].[14] Initial appearances on the new Indictment took place five days later. [DE 2-17]. On July 26, 2004, Judge Cooke gave the Government leave, under Federal Rule of Criminal Procedure 48(a), to dismiss the original Indictment without prejudice. [Case No. 04-20204-CR-COOKE, DE 171]. Meanwhile, a new round of pre-trial detention hearings was held. This time, the Government’s motion to pre-trial detain Gena Wiggins (“Wiggins”) was denied, and she was ordered released on a personal surety bond. [DE 35, 36, 37, 88, 89, 93]. The Court found that the third wiretap evidence presented against Gena Wiggins was subject to interpretation [DE 93, Hearing Transcript at 85], and the Government’s proffered evidence “appears weakest against Ms. [Gena] Wiggins.” [Id. at 96]. As for the other Defendants, they remained under pretrial detention. [Green: DE 31, 41; Harold Wiggins: DE 10; Wilson, DE 30, 40; Wooten and Pierre-Louis: DE 33, 45, 50]. F. Green moves Judge Cooke for reconsideration of her order allowing dismissal of the original Indictment without prejudice. Defendant Green immediately moved, in Case No. 04-20204-CR-COOKE, for reconsideration of Judge Cooke’s dismissal of the original Indictment without prejudice. [Case No. 04-20204-CR-COOKE, DE 172, 179]. Green made two arguments in support of his request that Judge Cooke vacate her earlier order and in its place, dismiss the original Indictment with prejudice. First, he argued that the Government’s purpose in dismissing the original Indictment, and the manner in which it accomplished this, was improper. Specifically, the Government dismissed the charges to avoid a ruling on Green’s pending motion to dismiss, and did so without notice to the Defendants and without a hearing. Green argued that it was improper to use Fed. R. Crim. P. 48(a) in this manner to gain a tactical advantage, that the Government acted in bad faith and, consistent with United States v. Dyal, 868 F.2d 424 (11th Cir. 1989), the Court must construe the dismissal as one with prejudice. Second, Green returned to the merits of his motion to dismiss and reiterated his argument that the Government violated Section 2517(5), which should be remedied by dismissal with prejudice of the Indictment. The Government filed a memorandum in opposition that reasserted its prior arguments in opposition to Green’s motion to dismiss. [Case No. 04-20204-CR-COOKE, DE 185]. It also contended that, by obtaining a belated Section 2517(5) order from Judge Huck, and presenting its evidence to a new grand jury, the Government eliminated any alleged prejudice to the Defendants and thus Green’s motion to dismiss should be denied as moot. [Id.] Judge Cooke granted Green’s motion for reconsideration, and held oral argument on September 1, 2004, at the conclusion of which she denied his motion to dismiss.[15] [See also Case No. 04-20204-CR-COOKE, DE 187, 188]. G. The current Motion to Dismiss. *7 Defendant Green also filed a Motion to Dismiss the present Indictment [DE 60] with a supporting memorandum of law [DE 61], which is addressed herein.[16] Again, Green argues that the Government dismissed the first Indictment in bad faith and therefore, consistent with Dyal, 868 F.2d 424, that dismissal must be construed as a dismissal with prejudice. This argument, however, was squarely presented to Judge Cooke, considered by her and denied at the September 1, 2004 hearing. Relying upon that prior ruling, I recommend that it be denied here too. Green raised a second argument, however, not previously presented: that in obtaining the Section 2527(5) order from Judge Huck, the Government had not satisfied the mandate of that section that “such application shall be made as soon as practicable.” [DE 61, pp. 16-21].[17] Nearly nine months elapsed between the interceptions at issue (the October 18, 2003, kidnaping), and Judge Huck’s July 8, 2004 order authorizing the Government’s testimonial use of that information. Although the Court does not know when the Government presented to the grand jury information obtained from the October 18, 2003 interceptions, we do know the original Indictment was returned on April 2, 2004. Measuring from that date, the Government waited more than three months to apply for the Section 2517(5) order. Moreover, the Government delayed applying for authorization from Judge Huck, despite Green having brought the issue to its attention, first, at the April 21, 2004 pretrial detention hearing and later, on June 3, 2004, when it filed the instant motion to dismiss. Green argues, persuasively, that there is no practical reason why the Government could not have sought this order immediately, and certainly no later than the initial presentation of this evidence to the grand jury. In fact, at oral argument, Government counsel effectively acknowledged this as true. [DE 242, Hearing Transcript at 39]. Green relies upon the often-expressed policy of strict construction of Title Ill’s mandates, necessary to protect citizens from the extraordinarily intrusive nature of wiretap surveillance. See e.g., United States v. Donovan, 429 U.S. 413, 440 (1977). Green urges that the Government’s failure to satisfy Section 2517(5) must be met with one of the following remedies: 1) dismissal of the Indictment, 2) dismissal of Count II, the Hobbs Act conspiracy, or 3) suppression of the October 18, 2003 electronic communications.[18] *8 In response, relying upon United States v. Shields, 999 F.2d 1090 (7th Cir. 1993), the Government argues that Green’s argument the Government did not secure a Section 2517(5) order was rendered moot when the Government got such an order from Judge Huck and presented its evidence to new grand jury. The Government also contends Green’s motion must be denied as he has suffered no prejudice from the Government’s delay in applying for a disclosure order. [DE 188]. H. Analysis. Green’s complaint that the Government did not apply for a Section 2517(5) disclosure order “as soon as practicable” has relevance only if the Government had a duty to seek such an order. This duty arose if the October 18, 2003, communications about the kidnaping “relat[ed] to offenses other than those specified in the order of authorization.” 18 U.S.C. § 2517(5). If they did not so relate, the Government was obligated to seek Court authorization to make testimonial use of that evidence, and to do so “as soon as practicable.” 18 U.S.C. § 2517(5). If, on the other hand, the October 18th interceptions did relate to the offenses specified in the order of authorization, the Government needed no further authorization to use that evidence before the grand jury, or in other proceedings. Thus, this Court need not reach Green’s “as soon as practicable” argument, unless it first determines that the October 18th communications were not “relat[ed] to offenses other than those specified in the order of authorization.” As I address this preliminary issue, I am mindful that it was, at least in some measure, before Judge Cooke in Case No. 04-20204-CR-COOKE on September 1, 2004, when she granted Green’s motion to reconsider the Government’s dismissal without prejudice of the original Indictment, but denied Green’s motion to dismiss that Indictment with prejudice. 1. Did the Government need to get a Section 2517(5) disclosure order? Only a handful of opinions have examined when an electronic interception is “relat[ed] to offenses other than those specified in the order of authorization.” Both the Government and Defendants can find language in those opinions to support their respective positions. Unfortunately, no binding decision settles the question on the facts presented in this case. A review of the decisions binding on this Court must begin with United States v. Campagnuolo, 556 F.2d 1209 (5th Cir. 1977), the only opinion of this Circuit that expressly examines the meaning of “relating to” in Section 2517(5).[19] See also United States v. Watchmaker, 761 F.2d 1459, 1470 (11th Cir. 1985) (reviewed the Campagnuolo decision analysis of “relating to” in Section 2517(5)). On very different facts, the Campagnuolo court faced the question whether the Government had erred in presenting to a grand jury certain information obtained from a Title III, without first getting a disclosure order under Section 2517(5). In answering this question, the court focused on Congress’s purpose in enacting Section 2517(5): to insure the Government does not secure a wiretap authorization to investigate one offense, as a subterfuge to acquire evidence of a different offense. Campagnuolo, 556 F.2d at 1214. Keeping this purpose in mind, the Campagnuolo Court looked for evidence of subterfuge in the use the Government made of the disputed communications, and its purpose in disclosing that evidence. There, the Government used the disputed evidence to secure an indictment charging only those crimes named in the authorization order. The fact that the Government did not use the evidence to bring other charges dispelled the notion of Government subterfuge. In this context, the Court made the following observation: “We believe that when wiretap evidence is probative of both the offense named in the authorization order and some other unnamed offense, the relationship of the evidence to the unnamed offense becomes important in terms of 2517(5) only when the Government attempts to use it with respect to that offense.” Campagnuolo, 556 F.2d at 1215. *9 The present cases presents important similarities to, and differences from, Campagnuolo. First, an important similarity: in both cases the disputed wiretap evidence was probative of both the offense named in the authorization order and another unnamed offense. Here, to the extent some Defendants kidnaped Laguerre to avoid paying a drug debt, and to force him to disclose the location of his cocaine supply so that they might steal it, the October 18th interceptions were probative both of the offense named in the authorization order (narcotics trafficking) and another offense, Hobbs Act conspiracy.[20] From this perspective, looking narrowly at the language of Section 2517(5), one can say that the October 18th interceptions were “communications relating to offenses ...specified in the order of authorization.” There is another similarity here to the findings in Campagnuolo: in both cases there was no evidence that the Government engaged in a subterfuge when applying for its Title III authorization. In the record before this Court, there is nothing to suggest that when the Government applied for the third wire it truly wished to intercept evidence of Hobbs Act violations, but being unable to justify such an order, it instead identified narcotics violations as the focus of its electronic interception. The most significant difference between this case and Campagnuolo is this: unlike Campagnuolo, the Government here presented the evidence from the October 18th interceptions to the grand jury to secure charges both for the authorized narcotics violations, and the unauthorized Hobbs Act conspiracy. For the Campagnuolo Court, the fact that the Government limited its use of the interceptions at issue to secure charges only for offenses named in the Title III order allowed the Court to conclude that no violation of Section 2517(5) had occurred. Thus, the present case presents an important circumstance not encountered by the Court in Campagnuolo, and thus Campagnuolo does not conclusively resolve the issue faced by this Court. Another decision of this Court examined an alleged violation of Section 2517(5) but likewise, does not control the outcome of the present dispute. In United States v. Harvey, 560 F. Supp. 1040 (S.D. Fla. 1982), off don other grounds sub nom., United States v. Van Horn, 789 F.2d 1492 (11th Cir. 1986), the Title III order authorized interception of evidence of enumerated narcotics offenses and the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The Government used the electronic interceptions to secure an indictment for the contemplated narcotics offenses, and also for continuing criminal narcotics enterprise charges (21 U.S.C. § 848), an offense not enumerated in the Title III application and order. The Government did not apply for a Section 2517(5) order before doing so. In Harvey the late Judge Aronovitz focused on the meaning of “other than” in Section 2517(5) and rejected the defendant’s contention that the Government had to get a Section 2517(5) disclosure order to use that evidence in the Section 848 prosecution. A purpose behind Section 2517(5), he concluded, was to “prevent circumvention of the particularity and other safeguards of § 2518.” Harvey, 560 F. Supp. at 1064. Although the wiretap application in Harvey did not identify Section 848 as an offense under investigation, the application did set forth probable cause as to each element of that offense. Judge Aronovitz concluded: “When an offense is described with particularity as it was here, however, that fact in no way frustrates the safeguards provided in the Act. The fact that a § 848 violation was described with particularity in the affidavit incorporated in the application establishes that there was no subterfuge.” Harvey, 560 F. Supp. at 1065. *10 I believe Judge Aronovitz’s reasoning in Harvey supports the Government here. Although the application for the third wire did not set forth probable cause that its targets were engaged in a Hobbs Act conspiracy, the application did state that the pattern of narcotics trafficking that was the focus of the investigation was frequently associated with crimes of violence. Specifically, in paragraph 14 of that application, Agent O’Rourke averred that in the prior fourteen months “there have been numerous shootings, assaults and approximately seven (7) homicides linked to drug dealing in a specific area of Miami known as Carol City. These homicides generally occurred with individuals having some type of association or active role in the operation of known ‘drug holes.’ ” [Case No. 04-20204-CR-COOKE, DE 166, Ex. 7, p. 11]. Agent O’Rourke explained that the proposed wiretap was focused on a particular drug hole located in “this violence prone area” that had a “history of narcotic arrests, drug seizures and associated violence in the immediate area.” [Id. at ¶ 16]. Following the reasoning of Harvey, the fact that the Government, in its wiretap application here, divulged that crimes of violence were often associated with the targeted narcotics trafficking, is inconsistent with the Government having engaged in subterfuge. The most analogous decision to the case presently under review, United States v. Brodson, 528 F.2d 214 (7th Cir. 1975), is not binding upon this Court. In Brodson, the Court had no evidence of Government subterfuge. As in this case, the Government’s wiretap evidence related both to the offense for which the wire had been authorized and to an unauthorized offense. And, like this case, the Government used the wiretap evidence to secure an indictment for the unauthorized offense. The Government in Brodson, like the Government here, did not seek a disclosure order under Section 2517(5) until some eight months after the indictment was returned. The Seventh Circuit in Brodson upheld the trial court’s dismissal of the indictment as the appropriate remedy for what it found to be the Government’s violation of Section 2517(5). It specifically rejected the Government’s position that it did not need to seek a Section 2517(5)order prior to divulging the wiretap evidence to the grand jury because those interceptions also related to the unauthorized offenses. By inserting Section 2517(5) into the Act, the Congress obviously intended to require that the Government submit the tape of its wiretaps to a neutral judge so that he might determine whether the interceptions were the inadvertent product of a legitimately obtained wiretap or the electronic equivalent of the type of illegal evidence formerly obtained under the supposed authorization of a ‘general search warrant.’ Here, the Government’s claim, that the authorizations applicable to the Section 1955 violations were also relevant to Section 1084 violations, should have been tested by submitting them to a judge in accordance with the rationale of Section 2517(5). Brodson, 528 F.2d at 215. The Court noted that Title III prohibited the use of electronic interceptions where their disclosure is “in violation of this chapter.” Brodson, 528 F.2d at 216 (quoting 18 U.S.C. § 2515). The Court held: Any exceptions from this broad language must be strictly construed in order to carry out the purpose of the Congress and make certain that the privacy of the individual is protected as so provided. We therefore find that it was the duty of the Government to present the evidence it obtained under the Section 1955 authorization to the trial judge for him to determine whether it was admissible and was sufficient to meet the burden of the prosecution under Section 1084. Id. Brodson would clearly lead to the conclusion here that, before it used the October 18th interceptions to persuade the grand jury to charge a conspiracy under the Hobbs Act, the Government was obligated to seek judicial permission to do so. Had the Government reviewed the decisions cited above at the time it prepared to present evidence to the grand jury, it would have seen that the applicability of Section 2517(5) to this case was, at the very least, subject to debate. The Government’s own actions underscore this point, as it made a belated Section 2517(5) application with Judge Huck, and after receiving authorization, re-presented its evidence to a new grand jury in an effort to avoid precisely the question raised by this motion. *11 This Circuit, however, appears to have distanced itself from the approach of the Seventh Circuit in Brodson. In Watchmaker, 761 F.2d at 1470, the Eleventh Circuit noted that Brodson is not binding precedent in this Circuit and that the Court in Campagnuolo appeared to permit a “more flexible interpretive approach” and made the following observation: For example, courts could relax the authorization requirement in cases where the offense for which the wiretap was authorized and the offense for which the information was used were so similar in nature that there would be little chance that the original authorization was a subterfuge to obtain evidence of an offense for which the prerequisites to authorization are lacking. Watchmaker, 761 F.2d at 1470 (internal citations and quotations omitted). In Watchmaker, again on materially different facts, this Circuit declined to dismiss an indictment for the Government’s failure to secure an order under Section 2517(5). At the September 1, 2004, hearing in the original case, Judge Cooke quoted the language in Watchmaker set out above, in denying Green’s motion to dismiss with prejudice. [DE 188, Hearing Transcript at 39-40]. Judge Cooke’s reliance upon this language indicates that she denied that motion having concluded the October 18th interceptions were probative of both the narcotics and Hobbs Act conspiracies, and under a “more flexible interpretive approach,” the Government did not have to secure a disclosure order under Section 2517(5). Relying upon what I believe to be Judge Cooke’s reasoning in denying Green’s motion to dismiss the original Indictment, I recommend that the same reasoning be applied here to conclude that the Government did not commit error when it presented its electronic surveillance evidence to the original grand jury without first having obtained permission to do so under Section 2517(5). Accordingly, Green’s claim in the present motion, that the Government erred when it failed to abide by the “as soon as practicable” mandate of that Section, is without merit as no such obligation ever arose. Accordingly, I recommend that Green’s Motion to Dismiss be denied. III. Wiggins’s Motion to Suppress, [DE 65], Green’s Motion to Suppress, [DE 62] and Collins’s Motion to Suppress, [DE 121].[21] In these Motions Defendants seek suppression of all evidence derived from the Wilson wire, and to a lesser extent, from the Ross wire. With one exception noted below, I recommend that these Motions be denied. A. The Government’s failure to get a disclosure order pursuant to 18 U.S.C. Section 2517(5). Relying upon 18 U.S.C. Section 2515, the Defendants move for suppression of all wiretap evidence for the same reason asserted in Green’s Motion to Dismiss: that the Government made testimonial use of the October 18, 2003, communications regarding the kidnaping of Laguerre without first securing a disclosure order under 18 U.S.C. Section 2517(5). For the reasons already stated, I recommend that the Defendants’ Motions to Suppress on this ground be denied. B. The Government established the necessity of electronic surveillance of “G’s” cell phone. *12 Defendants contend the Government abdicated its statutory responsibility to employ less intrusive investigative means to investigate “G,” before it took the extraordinary step of wiretapping “G’s” cellphone. They argue that the application and supporting affidavit for the third wire did not satisfy 18 U.S.C. Section 2518(1)(c), and therefore the evidence derived therefrom must be suppressed. Under Title III a Court may not authorize electronic surveillance unless the Government’s application includes 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). Further, the Court must find 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). Collectively, these provisions are known as the “necessity” requirement. 1. Agent O’Rourke’s review of other investigative procedures. In his affidavit in support of the application for the third wire, Agent O’Rourke recounted traditional investigative procedures that had been used in the investigation. [Case No. 04-20204-CR-COOKE, DE 166, Ex. 7, ¶¶ 53-63; see also id. at ¶ C, p. 4]. The starting point for this review was the fact that the Government had not been able to identify “G”; accordingly, its ability to investigate him was limited. For example, “G” had not been the subject of surveillance. Agents had conducted surveillance of Ross on numerous occasions, but this had not resulted in the identification of “G.” Moreover, as described by O’Rourke, surveillance of Ross, as a general matter, had not been particularly productive due to his use of lookouts. [Id. at ¶ 57]. For this reason, O’Rourke believed further surveillance was not likely to be successful, and risked alerting the targets to the investigation. [Id.]. O’Rourke described the use of four confidential sources of information (“CSs”) leading up to the applications for the first and second wires. Two CSs provided background information on Alan Ross; two gave information about Defendant Collins. [Id. at ¶¶ 6-12, 13(B) and (C) ]. Those CSs, however, were “not privy to the network of conspirators, nor their conversations in furtherance of their drug distribution activities.” [Id. at ¶ 56]. Further, the CSs were not trusted associates of the targets of the third wire and were provided information on a need-to-know basis, and therefore were not expected to further infiltrate the organization. [Id. at ¶ 56]. For the same reasons, it was not expected that an undercover agent could gain the evidence needed to identify and charge all co-conspirators. [Id. at ¶ 60]. Agent O’Rourke explained that the Assistant U.S. Attorney responsible for the investigation rejected grand jury interviews of the targets and their associates, believing this would only cause them to better conceal their criminal activity and destroy physical evidence. [Case No. 04-20204-CR-COOKE, DE 166, Ex. 7, ¶ 59]. Further, the Government was not prepared at that point in the investigation to grant immunity to grand jury witnesses and thereby foreclose prosecution of those witnesses. [Id. at ¶ 59]. For the same reasons, O’Rourke opined it was premature to execute search warrants or interview associates. [Id. at ¶ 62]. As for “trash pulls,” this was “not an investigative option as the primary user (F/N/U a/k/a “G”) of the TARGET TELEPHONE has not been fully identified nor has a residence or ‘stash house’ been identified.” [Id. at ¶ 61]. *13 As for the pen register and trap and trace on “G’s” telephone in August and early September 2003, it simply demonstrated when the target telephone had been used to make or receive calls to and from other telephones, and therefore was of limited investigative value. [Case No. 04-20204-CR-COOKE, DE 166, Ex. 7, ¶ 58]. 2. The Defendants’ criticism of O’Rourke’s affidavit. Defendants complain that, other than the trap and trace and pen register placed on Wilson’s phone in August and early September 2003, the traditional avenues of investigation described by Agent O’Rourke were employed as to the targets of the first two wires, but were not used to identify or investigate “G.” As is discussed in Section IV, hereafter, Defendants argue that O’Rourke’s affidavit was misleading, as it created the false impression that the investigative efforts he described were undertaken specifically in preparation for the third wire. Defendants argue that O’Rourke’s allegations were, in large part, copied from the applications for the first two wires and, in any event, were boilerplate claims true of almost any narcotics investigation. In his memorandum of law, Green lists a number of ways the Government might have tried to identify him short of wiretapping his telephone, mostly through investigation of Audreshia Lewis, and correctly points out that none of these were addressed in O’Rourke’s affidavit. For example, he points out that Agent O’Rourke’s affidavit does not indicate whether there was any effort to: conduct surveillance of Ms. Lewis, her residence or place of employment, or conduct a criminal background check of Ms. Lewis; identify Ms. Lewis’s associates and see if any of them might identify “G”; play for cooperating sources the tape recordings of “G’s” conversations with Ross to see if they recognize his voice, or question informants to determine whether they knew the identity of “G.” Defendants also questioned why Ms. Lewis’s trash was not examined.[22] 3. Analysis. The requirements of 18 U.S.C. Sections 2518(1)(c) and (3)(c) are designed to insure that electronic surveillance is not “routinely employed as the initial step” in a criminal investigation, United States v. Giordano, 416 U.S. 505, 515 (1974), and that “wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn, 415 U.S. 143, 153 n.12 (1974). The application “must show with specificity why in this particular investigation ordinary means of investigation will fail.” United States v. Carrazana, 921 F.2d 1557, 1565 (11th Cir. 1991) (emphasis in original). However, “it is not necessary to show a comprehensive exhaustion of all possible techniques.” United States v. Alonoso, 740 F.2d 862, 868 (11th Cir. 1984) (citing United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978)). Defendants bear the burden of establishing that the Government violated Section 2518(1)(c). See United States v. De la Fuente, 548 F.2d 528, 535 (5th Cir. 1977) (finding the burden of proof regarding a defendant’s challenge under 18 U.S.C. Section 2516 to a wiretap authorization is the same as any motion to suppress and stating it is “the defendant’s burden to show noncompliance as a prerequisite to exclusion of wiretap evidence, rather than the government’s burden to prove compliance as a predicate to its admission”); see also United States v. Garcia, 785 F.2d 214 (8th Cir. 1986); United States v. Nunez, 877 F.2d 1470 (10th Cir. 1989); cf. United States v. Fudge, 325 F.3d 910 (7th Cir. 2003) (stating “the government’s burden of proving necessity is not extraordinarily high”). I do not believe the Defendants established that the Government violated Section 2518(1)(c). *14 Where the investigation of “G” arose from the investigation of Alan Ross and other suspected cocaine traffickers, I do not believe the Government, in preparing its application for the Wilson wire, had to disregard lessons learned from its investigation of “G’s” associates. That surveillance had been conducted on Alan Ross on numerous occasions with limited success, and his use of lookouts, could fairly be considered by the Government in evaluating the usefulness of surveillance at this juncture in the investigation. Similarly, the Government could consider its experience with their CSs, who despite their relationships with Ross and Collins, were not privy to the inner workings of the narcotics organization, and the fact that “G’s” associates were sufficiently careful that they were unlikely to accept undercover agents. It is also highly relevant that after weeks of electronic surveillance of “G,” he had not used his given name when speaking with Ross, challenging the Government’s efforts to identify him. On the other hand, the Government’s application was not a model of compliance with Section 2518(1)(c). Otherthan 1) its listening to “G’s” conversations with Ross during the Ross wires, 2) its trap and trace and pen register of “G’s” telephone, and 3) its retrieval of subscriber information for the telephone used by “G” (identifying Audreshia Lewis), the Government did not expressly state what, if anything it did to identify “G.” With little effort it could have more fully informed Judge Huck of these efforts and thereby could have eliminated the questions raised by Defendants. For example, it clearly would have been the better practice for the Government to state affirmatively if it asked its CSs whether they knew “G” or recognized his recorded voice. And, at least in hindsight, it would be a matter of common sense for the Government to identify exactly what, if any, investigation it had done of Audreshia Lewis, or the reasons for not engaging in that investigation. The Eleventh Circuit has stated that in evaluating the necessity requirement, courts must read the supporting affidavits “in a ‘practical and commonsense fashion,’ and the district court is clothed with broad discretion in its consideration of the application. The order will not be overturned ‘simply because defense lawyers are able to suggest post factum some investigative technique that might have been used and was not.’ ” United States v. Alonso, 740 F.2d 862, 868-869 (11th Cir. 1984), cert. denied, 469 U.S. 1166 (1985)(internal citations omitted). Although I believe the question is a close one, I do not believe the Defendants have carried their burden. In this context, I note that the decisions primarily relied upon by Defendants are highly distinguishable from the case before this Court. United States v. Blackmon, 273 F.3d 1204 (9th Cir. 2000) parallels this case in this regard: 1) there, an initial wiretap was authorized (the Miller wiretap), that generated evidence for subsequent “spin-off wiretaps (the Blackmon wiretap), and 2) other than trap and trace and pen register devices, no further investigative efforts were attempted in between the application for the Miller wiretap and that for the Blackmon wiretap. There are, however, two very important differences: 1) there, the target of the second wire, Blackmon, was well-known to the Government and 2) the Court found that the affidavit “contained material misstatements and omissions that worked to conceal the fact that necessity had not been established.” Blackmon, 273 F.3d at 1209. In contrast, as observed below, see Section IV, the Defendants have not identified any material misstatement or omission in the O’Rourke affidavit’s statement of necessity. Moreover, here, after weeks of electronic interception of “G,” the Government had not identified him. Defendants also rely upon United States v. Mondragon, 52 F.3d 291 (10th Cir. 1995), where in the Tenth Circuit suppressed evidence obtained from electronic surveillance. There, an initial wiretap, properly supported by a showing of necessity, gave rise to a second wiretap. The application for the second wiretap, however, completely failed to address the necessity requirement. The application for the Wilson wire, in contrast, is not silent on the subject. *15 Here, the Government did address how other investigative procedures (the wire of Ross, trap and trace and pen register of “G,” and surveillance of Ross) had been tried and failed to accomplish the goals of the third wire. Although the affidavit does not explicitly so state, I do not believe this Court is assuming too much in gathering from the affidavit that the Government, which had committed extensive resources in furtherance of this investigation, certainly had not avoided trying to identify “G” and thereby foreclose other avenues of investigation. While it certainly has not made a record of having turned over every stone in its effort to identify “G,” the purpose of Section 2518(1)(c) is not to foreclose electronic surveillance until “every other imaginable method of investigation has been unsuccessfully attempted.” United States v. Pacheco, 489 F.2d 554, 565 (5th Cir. 1974). For these reasons, I recommend that this ground for suppression be denied. C. Probable cause for Collins to be intercepted on all three wires. While Collins’s Motion to Suppress [DE 121] does not explicitly argue that the application for the third wire failed to establish probable cause that Collins was engaged in narcotics trafficking and was communicating with “G” over his cellphone for this purpose, at oral argument, Collins’s counsel clarified that he sought suppression of all three wires on this ground. [DE 242, Hearing Transcript at 58]. Accordingly, I address this issue next. 1. The probable cause standard. The pertinent probable cause requirement for a Title III order is stated at Section 2518(3): [T]he judge may enter an ex parte order ... if the judge determines on the basis of the facts submitted by the applicant that-- (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter; (b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;... 18 U.S.C. § 2518(3). The Supreme Court defined “probable cause” and the role of the reviewing court: The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... [concluding]” that probable cause existed. Ill. v. Gates, 462 U.S. 213, 238-239 (U.S. 1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83 (1980)). “An application for a wiretap authorization must be supported by the same probable cause necessary for a search warrant.” United States v. Nixon, 918 F.2d 895, 900 (11th Cir. 1990) (applying the above-quoted standard from Gates, 362 U.S. at 271). The Eleventh Circuit further stated: “the practical nature of the magistrate’s decision justifies ‘great deference’ upon review and calls for upholding the magistrate’s findings even in marginal or doubtful cases.” Id. (citation omitted). 2. Agent O’Rourke’s affidavits. a. The first wire. In his affidavit in support of the first wire, written on July 28, 2003, Agent O’Rourke asserts there is probable cause to believe that Collins, and the other individuals named as targets of that wire, were engaged in narcotics trafficking. [Case No. 04-20204-CR-COOKE, DE 166, Ex. 5, pp. 2-3]. O’Rourke details Collins’s criminal history, which includes numerous arrests for crimes of violence, firearms charges and escape, [Id. at 7-8], and Ross’s criminal history, which included arrests for firearms and cocaine possession charges. [Id. at 5]. As for information provided by informants, O’Rourke states the following: *16 CS3 states that COLLINS has been known to him/her in excess of five years and is known by CS3 to commit robberies of “drug dealers” for their drugs and/or money and [to] sell the stolen narcotics. CS4 states that ANTHONY COLLINS has been known to him/her for approximately one year and has been known by CS4 to commit robberies of “drug dealers” for their drugs and/or money and [to] sell the stolen narcotics. Based upon information supplied by CS3, CS4, and the ongoing investigation conducted by law enforcement officers, ROSS is believed to [be] supplied cocaine by COLLINS. [Id. at 8; see also id. at 12, 13]. As part of the investigation leading up to the application for the first wire, on June 9, 2003, a trap and trace and pen register device was installed on Ross’s cellular telephone, and subscriber information was pulled for telephone numbers frequently documented. [Case No. 04-20204-CR-COOKE, DE 166, Ex. 5, p.18]. One such number was a telephone subscribed to by Collins. O’Rourke wrote the following about those calls: Between June 9 and July 20, 2003, the target telephone contacted a cellular telephone assigned the telephone number (786)399-5252, which is subscribed to by ANTHONY COLLINS, on 13 occasions and was contacted by the TARGET TELEPHONE on 9 occasions. The most recent call by the TARGET TELEPHONE to this number occurred on June 13, 2003 at approximately 4:53 PM. [Id. at 19]. b. The second wire. In his affidavit in support of the application for the second wire, O’Rourke again asserted there is probable cause that Collins, along with many other individuals identified therein as targets, was engaged in narcotics trafficking. [Case No. 04-20204-CR-COOKE, DE 166, Ex. 6, pp. 2-3]. O’Rourke incorporated by reference the information provided in his first affidavit regarding Collins’s criminal history, along with the allegations made by government informants. [Id. at ¶ 5, p. 5]. As for the first wire, of which Collins was a target, O’Rourke advised that it commenced on July 28, 2003, and was ongoing. [Id. at 5].[23]O’Rourke reviewed the pertinent calls intercepted on the first wire, none of which concerned Collins. [Id. at 10-19]. Moreover, a pen register and trap and trace on Ross’s telephone on August 27, 2003 (when the first wire terminated) did not document any calls to Collins’s telephone. [Id. at 20]. c. The Wilson wire. In his affidavit in support of the application for the third wire, dated September 29, 2003, O’Rourke again asserted the existence of probable cause as to Collins [Case No. 04-20204-CR-COOKE, DE 166, Ex. 7, p. 2] and advised that Collins had been a target of the first two wires. [Id. at 5]. O’Rourke repeated the identical assertions by CS3 and CS4 as to Collins, [Id. at 7], and the same criminal history. [Id. at 9-10]. O’Rourke summarized pertinent conversations intercepted on the two Ross wires, none of which involved Collins. [Id. at 16-25]. O’Rourke did provide one new piece of information about Collins: between August 1, 2003 and September 16, 2003, a trap and trace and pen register on “G’s” telephone documented 140 calls between that telephone and a telephone number subscribed to by Collins. The most recent call occurred on September 15, 2003. [Id. at 27]. 3. Analysis. Although he was a target of all three wires, Collins was intercepted only on the third wire. In their memoranda and at oral argument, the parties did not address whether the absence of any interceptions of Collins on the first two wires moots Collins’s motion as to those wires. The parties may address this in their objections to this Report and Recommendation. *17 I recommend that Judge Huck’s finding of probable cause as to Collins in his order authorizing the first wire be upheld for the following reasons. It is the duty of this Court to determine whether Judge Huck had a “substantial basis” for finding probable cause. Gates, 462 U.S. at 238-239. A determination of probable cause is a “practical, common-sense decision ... given all the circumstances set forth in the affidavit.” Id. Judge Huck had before him information, provided in O’Rourke’s affidavit, that Collins had a history of arrests for violent crimes, had been identified by two informants as someone who robbed drug dealers and thereafter sold the stolen narcotics and who, six weeks prior to O’Rourke’s affidavit, appeared to have engaged in twenty-two telephone conversations with Ross, who had also been identified as a narcotics trafficker. Given the direction of the Eleventh Circuit that “great deference” be given “even in marginal or doubtful cases,” Nixon, 918 F. 2d at 900, I recommend that this Court uphold the finding of probable cause as to Collins to the first wire. As for the second wire, I cannot agree that O’Rourke’s affidavit in support of that application established probable cause that Collins was committing, or was about to commit narcotics offenses, and that the further interception of Ross’s telephone would obtain evidence of such criminal activity. See 18 U.S.C. § 2518(3). The only information linking Ross and Collins -- the trap and trace and pen register that documented calls between their two telephones in early June, 2003 -- was two and one half months old. And, the only new information O’Rourke provided about Collins, that he had not been intercepted during the first thirty days of electronic interception of Ross’s telephone, failed to update that stale information. The government “must reveal facts that make it likely that the items being sought are in that place when the warrant issues” to satisfy the probable cause standard. Information must be timely for probable cause to exist, for probable cause must exist at the time the magistrate judge issues the search warrant. Stale information is not fatal where the government’s affidavit “updates, substantiates, or corroborates the stale material.” United States v. Green, 40 F.3d 1167, 1172 (11th Cir. 1994) (citations omitted); see also United States v. Bervaldi, 226 F.3d 1256, 1265 (11th Cir. 2000). Here, the fact that Collins had not been intercepted on the first Ross wire undermined the finding of probable cause mandated by 18 U.S.C. Section 2518(3). Accordingly, I recommend that the second wire be suppressed as to Collins. Finally, as for the Wilson wire, I recommend that Judge Huck’s finding of probable cause as to Collins be upheld. In O’Rourke’s last affidavit, the Court learned that the first two wires documented, in late July and in August, 2003, numerous conversations between Ross and “G” about cocaine trafficking, and that a trap and trace and pen register on “G’s” telephone documented 140 calls between “G’s” and Collins’s telephones in August and early September, 2003. This, combined with the information provided by the two informants about Collins, and Collins’ criminal history, supports the finding of probable cause that is accorded “great deference” by this Circuit. Nixon, 918 F.2d at 900. Therefore, I recommend Collins’s Motion to Suppress be granted in part as to the second wire. The parties may address the ramifications of this proposed order, given the lack of any interceptions of Collins on the second wire, in their objections to this Report and Recommendation. D. The Attorney General gave prior approval for the Government’s application for the Ross and Wilson wires. Defendant Gena Wiggins moves to suppress all three wiretaps with the following two arguments. 1. Background conversations and voicemail messages. The applications for all three wires sought permission to intercept voicemail and background conversations, and Judge Huck expressly authorized those interceptions. Wiggins argues that this exceeded the authority granted by the Attorney General, and thereby violated Title III. *18 Title III requires that the Attorney General, or one of a select list of properly delegated Department of Justice senior officials, approve all wiretap applications prior to their submission to the court. 18U.S.C. §§ 2516(1), 2518(1); see also United States v. Giordano, 416 U.S. at 527. Pursuant to 18 U.S.C. Section 2516(1), then Attorney General John Ashcroft issued Order Number 2407-2001 (the “Attorney General’s Order”), on March 8, 2001, empowering the Assistant Attorney General in charge of the Criminal Division, any Acting Assistant Attorney General in charge of the Criminal Division, any Deputy Assistant Attorney General of the Criminal Division, and any acting Deputy Assistant Attorney General of the Criminal Division, to authorize applications for interception of wire or oral communications. [Case No. 04-20204-CR-COOKE, DE 166, Ex. 1]. For purposes of the current argument, it is important to note that the Attorney General’s Order makes no express reference to the interception of background conversations and voicemail messages. In his application for the Wilson wire, the Assistant U.S. Attorney attached the Attorney General’s Order and a September 26, 2003, memorandum from Christopher A. Wray, Assistant Attorney General for the Criminal Division, authorizing that application (the “Wray memorandum”). [DE 302; Case No. 04-20204-CR-COOKE, DE 166, Ex.4].[24] That memorandum explicitly permitted the Government to seek authorization to intercept wire communications and background conversations. [Case No. 04-20204-CR-COOKE, DE 166, Ex. 2, p. 2; Ex. 3, p. 2; Ex. 4, p. 2]. The Wilson wire application asked to intercept wire communications, background conversations and voicemails. [DE 302]. Judge Huck granted this request in his three orders authorizing the Ross and Wilson wires. [Case No. 04-20204-CR-COOKE, DE 166, Ex. 8, pp. 3, 4; Ex. 9, pp. 3, 4; Ex. 10, pp. 3, 4]. In her motion to suppress, Wiggins argues that the applications for the three wires, and the orders authorizing those wires, were overbroad because they included within the scope of the interceptions: 1) background conversation in the vicinity of the target telephone while it was off the hook or otherwise in use, and 2) voice mail messages occurring or played back on the target telephone, [DE 302, p. 6; Case No. 04-20204-CR-COOKE, DE 166, Ex. 8, 9, 10], without the express permission of the Attorney General to do so. Before an order may issue authorizing the interception of wire, oral or electronic communications, the Attorney General or his designee must authorize the Government’s application for such an order. 18 U.S.C. § § 2511, 2516(1). “Wire communications” are defined, in pertinent part as: “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception....” 18U.S.C. § 2510(1). An “aural transfer” is further defined as: “a transfer containing the human voice at any point between and including the point of origin and the point of reception.” 18 U.S.C. § 2510(18). An “oral communication” is defined as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.” 18 U.S.C. § 2510(2). Finally, an “electronic communication” is, in relevant part, “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in party by a wire, radio, electromagnetic, photoelectonic or photooptical system that affects interstate or foreign commerce, but does not include–(A) any wire or oral communication;...” 18 U.S.C. § 2510(12). a. Voicemails. *19 Wiggins argues that intercepted voicemails were not wire communications, but were stored communications and therefore not under the purview of Title III. [DE 65, pp. 7-8]. She contends, “[t]he government clearly intercepted the voice mail messages in the instant case when it recorded them from the phones as the various targets of the wiretaps were listening to their messages.” [Id.]. The Government, without citing any authority or explaining its reasoning, responds that the retrieval of a voicemail is an aural transfer, and thus comes within the definition of a wire communication and thereby is encompassed in Judge Huck’s orders. [DE 136, p.7]. As a starting point, it is helpful to consider voicemail in three stages: 1) when a person initially calls leaves a recorded message (“leaving a voicemail”); 2) when the voicemail is in electronic storage;[25] and 3) when a person accesses his voicemail account to listen to the stored message (“retrieving a voicemail”). The process of leaving a voicemail is an aural transfer, which by definition is a “wire communication.” See U.S. v. Smith, 155 F.3d 1051, 1055 (9th Cir. 1998) (finding the “message itself, which [the defendant] left in the voicemail system via telephone, was a ‘wire communication’; it was an ‘aural transfer,’ made using a wire facility (the telephone line)”). The Attorney General’s Order, by clearly addressing “wire communications,” thereby empowered the Government to seek permission to intercept callers leaving voice mail messages. [See Case No. 04-20204-CR-COOKE, DE 166, Ex. 2, 3, 4]. Wiggins is correct that a voicemail in its second stage is a stored communication. While the voicemail is in “electronic storage,” the Government may access it by complying with the provisions of 18 U.S.C. § 2701 et seq., regarding stored wire and electronic communications. These provisions allow the Government to access stored communications directly from the electronic storage facility, i.e., from the telephone company’s voicemail system. 18 U.S.C. § 2701(a). Wiggins has not argued the Government attempted to access voicemail messages through an electronic storage facility and there is no evidence in this record that the Government failed to comply with either Title III or 18 U.S.C. Section 2701 et seq, in this regard. The parties have not provided the Court with authority as to how retrieval of voicemail is categorized under the current language of 18 U.S.C. Section 2510. When a subscriber retrieves a voicemail the data, including the recording of the person’s voice who left the voicemail, is relayed to the subscriber.[26] In the absence of binding authority I conclude that retrieving a voicemail is an “aural transfer,” or a “transfer containing the human voice,” and therefore is a wire communication. The Wray memorandum addresses wire communications and thereby authorized the wire applications to seek permission to intercept Wilson’s retrieval of his voicemail messages. b. Background conversations. *20 As for background conversations, they may be either a wire communication or an oral communication depending on the circumstance. When a person has an “expectation that such communication is not subject to interception under circumstances justifying such expectation,” it is an oral communication. See 18 U.S.C. § 2510(2). In determining whether such expectation existed, courts analyze several factors. See Kee v. City of Rowlett, 247 F.3d 206, 213-215 (5th Cir. 2001) (discussing factors courts have considered in assessing whether a person had an expectation of privacy). In contrast, a background conversation for which there is no expectation of non-interception is a wire communication, which as previously discussed was encompassed in the Attorney General’s Order. As the parties have not set forth evidence for the Court to determine whether particular background conversations were oral or wire communications, I generally address both circumstances. In his Order, the Attorney General delegated to his subordinates authority to request interception of wire and oral communications. The Wray memorandum permitted the Assistant U. S. Attorney to apply for the interception of wire communications, along with background communications, which he did. [Id. at Ex. 2, p. 2; Ex. 3, p. 2; Ex. 4, p. 2]. As discussed above, a background conversation may either be a wire or an oral communication. While the Wray memorandum did not authorize the interception of “oral communications” explicitly, it authorized the interception of background conversations, which are a subset of oral communications. This Court could reasonably conclude the Wray memorandum, by referencing background communications (“background conversations intercepted in the vicinity of the target telephone while the telephone is off the hook or otherwise in use”) [Id. at Ex. 2, p. 2; Ex. 3, p. 2; Ex. 4, p. 2], necessarily referenced this form of oral communication. On this reasoning, the Government did not exceed the authority delegated by the Attorney General, in requesting authorization to intercept background conversations. Similarly, to the extent the Government intercepted background conversations that are wire communications, it did not exceed its authority. Given the factual nature of the Court’s determination of whether background conversations are wire or oral communications, which cannot be accomplished at the time of the application for the wire, it appears to be the safest course for the Government to do as it did here, and expressly seek authorization for those conversations, whether wire or oral communications. For the reasons stated here, I recommend Defendants’ motions to suppress be denied as to this basis. 2. An appropriate Department of Justice officer authorized the application. Wiggins also focuses on an apparent inconsistency in the Wray memorandum. [DE 143]. That is, while the memorandum purports to be from Christopher Wray, and has a signature line prepared for his name at the end of the document, that signature line is left blank. Instead, thereunder is stamped “Bruce C. Swartz, Deputy Assistant Attorney General, Criminal Division,” with an unintelligible signature above it. Wiggins contends that the signature was also made by a rubber stamp and that this demonstrates the Government failed to obtain authorization for the three wires by an official statutorily authorized by 18 U.S.C. Section 2516(1). Wiggins’s argument fails because, consistent with Section 2516(1), both Wray and Swartz are authorized in the Attorney General’s Order to approve wiretap applications. Moreover, this Court is aware of no authority that would suggest either individual can not properly acknowledge his approval of a wiretap application by use of a signature stamp. Wiggins’s reliance upon cases decided under Fed. R. Civ. P. 11(a) is misplaced. Rule 11 expressly provides that “every pleading ... shall be signed by at least one attorney of record in the attorney’s individual name ....” In contrast, 18 U.S.C. Section 2516(1) simply provides that the Attorney General, or those properly delegated by him, “may authorize an application” for a wiretap. There is no express statutory requirement, unlike Rule 11, that the Attorney General or designee personally sign the authorization. *21 Further, Wiggins’s reliance on United States v. Laff, 365 F. Supp. 737 (S.D.Fla. 1973) is inapposite. In that case, the Government’s wiretap application falsely stated that the official from the Department of Justice who approved the application had been properly delegated to perform the task. In the present case, there is no such deception. Accordingly, the Wilson wire should not be suppressed on this basis. E. The Wilson wire terminated within thirty days. Finally, Wiggins moves to suppress the evidence gained from the second wire, on the grounds that it unlawfully continued for more than thirty days. Agent O’Rourke’s affidavit in support of the application for the third wire stated that the second wire commenced on August 28, 2003 and “is currently ongoing.” [Case No. 04-20204-CR-COOKE, DE 166, Ex. 7, ¶ F, p. 5]. O’Rourke’s affidavit was dated September 29, 2003 - more than thirty days after the commencement of the second wire. From this, Wiggins concluded that the second wire exceeded its thirty day authorization. In response, the Government explained that the second wire terminated on September 26, 2003 – thirty days after its commencement. O’Rourke drafted his affidavit prior thereto, while the second wire was ongoing. By September 29th, when he signed the affidavit, the second wire had terminated but he neglected to conform his affidavit. At oral argument Government counsel advised the Court that he had produced for Defendants discovery that confirmed the thirty day duration of the second wire. [DE 242, p. 78]. On this basis, this argument for suppression should be denied. IV. Wiggins’s Franks Motion, [DE 172, 185], Green’s Franks Motion, [DE 182] and Collins’s Franks Motion, [DE 176, 183]. Wiggins, Green and Collins supplemented their motions to suppress the Wilson wire, and sought an evidentiary hearing on those motions, with motions filed under Franks v. Delaware, 438 U.S. 154 (1978). In Franks, the Supreme Court considered whether a defendant in a criminal proceeding has the right, under the Fourth and Fourteenth Amendments, to challenge the truthfulness of factual statements made in the affidavit supporting a warrant.[27] The Court held that, where the defendant makes a substantial preliminary showing that an affiant knowingly and intentionally included a false statement in an affidavit, or made the false statement with reckless disregard for the truth, and the false statement was necessary to the finding of probable cause, the defendant is constitutionally entitled to a hearing. Id. at 155-156. To mandate an evidentiary hearing, the defendant’s attack must be more than conclusory and must be accompanied by an offer of proof, such as sworn affidavits, or their absence satisfactorily explained. Id. at 171. Subsequent courts have confirmed that Franks applies to material omissions. See United States v. Martin, 615 F. 2d 318, 328 (5th Cir. 1980); United States v. Cantu, 625 F. Supp. 656, 663 (N.D. Fla. 1985) (courts have treated omissions from affidavits as misstatements). Thus, a defendant seeking an evidentiary hearing must show that the omission was made with intentional or reckless disregard for the truth, and that had the omitted information been included in the affidavit, the affidavit would have been insufficient. Martin, 615 F.2d at 328. Accordingly, except where a defendant makes a strong showing that the affiant omitted critical information recklessly or with an intent to mislead, Franks, in inapplicable. Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998); see also Van Horn, 789 F.2d at 1500-01. Allegations of negligence or innocent mistake are insufficient to cause the Court to go beyond the four corners of the affidavit. Franks, 438 U.S. at 171. A. The argument regarding “necessity.” *22 In their written motions, Defendants Wiggins and Green contend O’Rourke, in his affidavit in support of the application for the third wire, misled Judge Huck as to the Government’s showing of necessity. Specifically, they argue O’Rourke’s affidavit contained misrepresentations and omissions that falsely led Judge Huck to believe traditional investigative methods employed as to Ross had, in fact, been employed as to “G.” In a table at the end of his motion, Green identifies the particular statements claimed to be false. [DE 182, pp. 5-7]. Wiggins also lists those alleged false statements and omissions in her motion. [DE 172, pp. 2-7; DE 185, pp. 6-13]. Prior to the hearing held on March 4, 2005, I carefully reviewed Agent O’Rourke’s affidavit in support of the third wire, and in particular the alleged false statements and material omissions alleged in the Defendants’ motions, and concluded the Defendants had not made a substantial showing that O’Rourke made a false material statement or omitted critical information, either recklessly or with an intent to mislead. On this basis, I denied their motions for an evidentiary hearing ore tenus. [DE 242, Hearing Transcript, pp. 47-48].[28] Very recently, Defendant Wilson filed a Supplemental Statement of Facts and Argument in Support of Defendant’s Motion to Suppress Wire, [DE 299, 5/4/05] and the Government filed a responsive memorandum. [DE 301]. In this pleading, Wilson lists the names of a number of cooperating witnesses the Government had revealed in discovery who, well before the application for the Wilson wire, knew Gary Wilson and could have identified him for the Government. For example, Wilson asserts that Nathan and Lamont Gloster entered into cooperation agreements two years before the Wilson wire and both knew, and had been involved in the drug business with, Gary Wilson and Larry Green. Wilson contends the Government claimed in its application for the third wire that the wiretap “was the only means of discovering the identity of ‘G.’ ” [DE 299, p. 1]. He argues the Government’s recent identification of cooperating witnesses proves the Government could have easily identified “G” by debriefing these informants, and thus would have “alleviate[d] the supposed claimed necessity for the wire.” [DE 299, p. 3]. The Government did not go so far, in its application for the Wilson wire, to argue the wiretap was the only way it could identify “G.” What O’Rourke did say was that he believed a wiretap was the “only available investigative technique which has a reasonable likelihood of revealing and securing admissible evidence needed to establish the full scope and nature of the offenses being investigated, including determining the identity if all the members of the organization, their intra and interstate distribution sites, locations used to conceal cocaine, and the assets purchased from the proceeds derived from the sale of narcotics.” [Case No. 04-20204-CR-COOKE, DE 166, Ex. 7, ¶ 54]. Later, O’Rourke added: “the pattern of telephone use by the target subjects is extensive. Indeed, your affiant believes that the narcotics related activity is so widespread that only through the interception of wire communication can the full scope of this conspiracy be discovered, and direct evidence for successful prosecution of al the subjects and assets involved be obtained.” [Id. at ¶ 63]. I have again reviewed the O’Rourke affidavit, this time in light of the information provided in Wilson’s supplemental pleading, and conclude he has not met his burden under Franks, to have an evidentiary hearing and thereby go beyond the four corners of O’Rourke’s affidavit. *23 As it is not entirely clear whether Wilson’s supplemental pleading was filed specifically in support of his motion for a Franks hearing, or more generally in support of his contention that the Government failed to establish necessity in its application for the third wire, I also reviewed that pleading in the context of the Defendant’s “necessity” argument, addressed previously at Section III(B). Although it certainly suggests the Government had other investigative resources available to it at the time of the third wire that it may not have employed, I do not believe Wilson establishes that the interception of his telephone must be suppressed because of the Government’s failure to satisfy Section 2518(1)(c). See Pacheco, 489 F.2d at 556 (the purpose of that section is not to foreclose electronic surveillance until “every other imaginable method of investigation has been unsuccessfully attempted”). B. The argument regarding probable cause. As noted above, Collins initially joined in Green’s and Wiggins’s motions to suppress by filing a supplemental pleading. [DE 121]. Thereafter, when Green and Wiggins supplemented their own motions to suppress by filing their Franks motions, Collins joined in by filing a second supplemental pleading [DE 176] and then a Sworn Supplemental Request for Franks Hearing. [DE 183]. To the extent Collins makes a Franks challenge to the Government’s showing of probable cause as to Collins, I address this separately. In both pleadings, Collins itemizes what he claims are intentional false statements or omissions in O’Rourke’s September 29, 2003, affidavit. For example, Collins challenges this statement by O’Rourke: “Based upon information supplied by CS3, CS4 and the ongoing investigation conducted by law enforcement officers, Ross is believed to be supplied cocaine by Collins.” [Case No. 04-20204-CR-COOKE, DE 166, Ex. 7, pp. 10-11]. According to Collins, “[t]his is false because on September 29, 2003, Defendant Collins did not personally know Ross.” There are two problems with Collins’s claim. First, if, in fact, Collins did not know Ross at that time, this does not establish that O’Rourke’s expression of his belief to the contrary was an intentional false statement. Second, Collins did not support his claim with an offer of proof, or satisfactorily explain its absence, as required by Franks. As another example, Collins claims O’Rourke “failed to inform the court that the sixty prior days of wire interceptions had no contact whatsoever between Ross and Collins.” [DE 176, p. 3, DE 183, 3]. I can not agree as O’Rourke, in his affidavit, summarized all intercepted conversations he believed pertinent to the application for the third wire, none of which involved Collins; it is apparent to me that Collins was not intercepted on the Ross wire. The other intentional false statements or omissions referenced by Collins in his pleadings I find similarly unpersuasive. For these reasons, I recommend that the Defendants’ Franks motions be denied. V. Recommendations. For the foregoing reasons it is RECOMMENDED that: 1) Green’s Motion to Dismiss [DE 60] be DENIED; 2) Wiggins’s Motion to Suppress [DE 65] be DENIED; 3) Green’s Motion to Suppress [DE 62] be DENIED; 4) Collins’s Motion to Suppress [DE 121] be GRANTED in part and DENIED in part, as stated herein; 5) Green’s Franks Motion [DE 182] be DENIED; 6) Wiggins’s Franks Motion [DE 172, 185] be DENIED, and 7) Collins’s Franks Motions [DE 176, 183] be DENIED. VI. Corresponding Orders. IT IS ALSO ORDERED AND ADJUDGED that 1) Defendant, Gary K. Wilson’s Motion to Adopt [DE 74] is GRANTED. 2) Defendant, Charles Wooten’s Motion to Adopt [DE 72] is GRANTED. VII. Time for Objections. This case is scheduled for trial before Judge Cooke on the two week trial calendar starting May 16, 2003. Pursuant to S.D. of Fla. Magistrate Rule 4(b), the parties may serve and file written objections with the Honorable Marcia G. Cooke, United States District Judge, on or before Thursday, May 19, 2005 at 3:00 p.m. The parties SHALL deliver a courtesy copy of their objections to Judge Cooke’s chambers by the same deadline. Failure to file timely objections shall bar the parties from attacking on appeal any factual findings contained herein. *24 DONE AND SUBMITTED in chambers at Miami, Florida this 9th day of May, 2005. Footnotes [1] The citations are to the docket entries in the above-styled case, unless otherwise noted. [2] The Orders of Reference specifically refer Wiggins’s Motion to Suppress and Green’s Motions to Dismiss and to Suppress and all motions and papers related to those motions. As Wiggins’s Franks Motion, Green’s Franks Motion, and Collins’s Motions to Suppress and Franks Motions assert supplemental bases for granting Wiggins’s Motion to Suppress and Green’s Motions to Dismiss and to Suppress, they fall within the ambit of the Orders of Reference. [DE 97, 122]. [3] The remaining pending motions to adopt are granted herein. [4] To date, Defendants, Derek S. Scott and Rodney Laguerre (the Indictment refers to “Roody Laguerre” [hereinafter “Laguerre”] ), have entered guilty pleas. [5] This number included incomplete calls, the retrieval of voice mail messages and other transmissions other than actual telephone conversations. [Id. at Ex. 7, ¶ 51]. [6] The affidavits in support of the three applications are filed in Case No. 04-20204-CR-COOKE, DE 166. The application for the third wire was recently filed in this case, at DE 302. It appears that the applications for the two Ross wires have not been filed with the Court either in this, or the predecessor, case. [7] The Affidavit of O’Rourke alleged there was probable cause that the targets of the proposed wire interception were committing the following offenses: “(a) the possession with intent to distribute controlled substances, in violation of Title 21, United States Code, Section 841(a)(1); (b) the use of any communications facility in commission of offenses relating to the manufacture and distribution of controlled substances, in violation of Title 21, United States Code, Section 843(b); (c) attempts or conspiracies to commit the aforementioned crimes, in violation of Title 21, United States Code, Section 846 and 963; (d) money laundering and conspiracy to commit money laundering, in violation of Title 18, United States Code, Sections 1956 and 1957; and (e) aiding and abetting the aforementioned crimes, in violation of Title 18, United States Code, Section 2.” [Case No. 04-20204-CR-COOKE, DE 166, Ex. 5, p. 3]. [8] Upon indictment, the case was initially assigned to Judge Huck. It was reassigned to Judge Cooke on June 9, 2004. [Case No. 04-20204-CR-COOKE, DE 141]. [9] Defendants Michael Roberts and Rosinny R. Belizaire, are fugitives. They are not named in the Superseding Indictment. [10] It did not expressly state that the Defendants had been charged with a Hobbs Act conspiracy or firearms charges. [11] On June 17, 2004, the Court sua sponge ordered the Government to file its response to Green’s motion to dismiss by June 30, 2004. [Case No. 04-20204-CR-COOKE, DE 145]. As the Government had not filed its response in the time required by the Local Rules, and the Government did not seek an extension of time to file its response, on June 22, 2004, Green filed a Motion to Grant by Default his motion to dismiss. [Case No. 04-20204-CR-COOKE, DE 147]. Judge Cooke denied Green’s Motion to Grant by Default his motion to dismiss. [Case No. 04-20204-CR-COOKE, DE 158]. In the meantime, Green also filed a Motion to Suppress. [Case No. 04-20204-CR-COOKE, DE 151, 152]. Subsequently, the Government filed its response. [Case No. 04-20204-CR-COOKE, DE 153]. [12] The briefing on this motion closed, and the motion to dismiss was ripe, when Green filed a reply memorandum on July 7, 2004. [Case No. 04-20204-CR-COOKE, DE 156]. Defendant Gena Wiggins subsequently filed a separate reply. [Case No. 04-20204-CR-COOKE, DE 184]. Gena Wiggins also filed a Notice of Filing, which contained documents in support of the motion. [Case No. 04-20204-CR-COOKE, DE 166]. Gena Wiggins has requested those documents be considered as filed in this case [DE 92]. For clarity, the Court will accomplish this by separate order and require the Clerk of the Court to file a copy of those documents in this case. [13] Thereafter, on July 13, 2004, the Government filed yet another sealed ex parte motion under Section 2517(5) seeking permission to disclose to a new grand jury, and in other proceedings, intercepted communications that concern violations of 18 U.S.C. Section 922(g) (felon in possession of a firearm) and forfeiture. [DE 284, Ex. D]. Judge Huck granted that motion by order entered on the same date. [Id.]. [14] The Indictments are identical, except the new Indictment omits Defendants, Belizaire and Roberts, who are fugitives, as previously-discussed. Compare Case No. 04-20204-CR-COOKE, DE 3 with Case No. 04-20487-CR-COOKE, DE 1. The new case was initially randomly assigned to another judge of this Court, however, on July 29, 2004, it was reassigned to Judge Cooke. [DE 39]. [15] The transcript of the September 1, 2004 hearing has been filed with the Court. [DE 188]. [16] The Motions addressed in this Report and Recommendation were filed before the Superseding Indictment was returned. All parties agree the issues raised in these motions have not been mooted by the Superseding Indictment. [DE 242, Hearing Transcript at 4]. [17] At the March 4, 2005 oral argument, counsel for Green acknowledged that this is the one issue raised by this motion, that was not raised by the motion to dismiss the original Indictment. [DE 242, pp. 24, 28]. The Government countered that Judge Cooke did have this argument before her at the September 1, 2004 hearing. The transcript of that hearing reveals that while defense counsel referenced the “as soon as practicable” language of Section 2517(5) and complained that the Government had not justified its many month delay in seeking a disclosure order, the parties did not highlight this as a separate issue for the Court’s consideration. Nor did the parties address the argument in their pleadings. Therefore, I agree with the Defendant that the argument raised herein has not been previously expressly resolved. [18] Green suggested these alternate remedies as the March 4, 2005 oral argument. [DE 242, Hearing Transcript at 48]. [19] The Eleventh Circuit Court of Appeals, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981. [20] I do not express an opinion as to the admissibility of the October 18th communications as evidence of the narcotics conspiracy charged in Count I, as this is a matter appropriately addressed by Judge Cooke at trial. [21] Collins adopted Green’s and Wiggins’ motions to suppress, and thereafter supplemented those motions with his pleading filed as DE 121. As Collins, in this supplement, raises issues somewhat different than those raised by Green and Wiggins in their motions, I treat it here as a separate motion. [22] Green does not challenge, and I believe for good reason, the Government’s election to not employ search warrants, grand jury subpoenas or interviews of targets, as these would have brought the investigation out into the open before the Government felt it had accomplished the broad goals of the investigation. [23] O’Rourke’s affidavit was dated August 28, 2003, and thus it would appear from this statement, that the wire was operational on that date. A later reference, however, at paragraph 17, indicates the wire was actually terminated one day earlier, on August 27, 2003. [Id. at 20]. [24] It appears that neither party filed a copy of the applications for the first two wires with the Court, in this or the previous case. Wiggins, however, did file the corresponding Wray memorandum for all three wires which are the same in that they state the Assistant U. S. Attorney may seek an order allowing the interception of wire communications, along with certain background conversations. [Case No. 04-20204-CR-COOKE, DE 166, Ex. 2, 3, 4]. Neither party argues the three applications differ in any way material to the issue raised by Wiggins. For this reason, my analysis herein applies equally to all three Title III applications and orders. [25] “Electronic storage” is defined as: “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” 18 U.S.C. § 2510(17). [26] The definition of “wire communication” has been amended several times, further confusing this issue. Originally, the definition was enacted as quoted herein at page 43. Later, in enacting the Electronic Communications Privacy Act of 1986, Publ. L. No. 99-508, 100 Stat. 1848, Congress amended “wire communication” to expressly “include[ ] electronic storage of such communication.” See, e.g., 18 U.S.C. § 2510(1) (2000). When Congress enacted the USA PATRIOT Act in 2001, Pub. L. No. 107-56, § 209, 115 Stat. 272, it deleted the reference to electronic storage from the definition of “wire communication,” returning the definition to its original language. [27] Courts have applied Franks to motions to suppress wiretaps when a defendant contests the veracity of an affidavit under Title III. See United States v. Cantu, 625 F. Supp 656, 663 (N.D. Fla. 1985); see also United States v. Paredes-Moya, 722 F. Supp. 1402, 1413 (N.D. Tex. 1989). Additionally, although Franks applies directly to challenges relating to probable cause, there is no logical reason for restricting its pleading requirements to that context; rather, it is equally applicable to challenges regarding the other statutory requirements recited in the affidavit. Cantu, at 664. [28] For clarity of the record, I reiterate this ruling here.