United States of America v. Herman Matthews, also known as YUM

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-1178
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HERMAN MATTHEWS, also known as YUM,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 94 CR 333--William T. Hart, Judge.
ARGUED FEBRUARY 17, 2000--DECIDED May 26,
2000
Before Harlington WOOD, JR., COFFEY and
RIPPLE, Circuit Judges.
COFFEY, Circuit Judge. On August 25,
1994, a grand jury in the Northern
District of Illinois returned a 43-count
indictment charging the defendant-
appellant, Herman Matthews, also known as
"Yum," and 17 others with a variety of
drug-related offenses. On January 12,
1995, a 66-count superseding indictment
naming Matthews and 15 others was filed
in the Northern District of Illinois./1
Prior to trial, Matthews filed a motion
to suppress electronic surveillance
evidence gathered against him in the
course of the court-ordered wiretap on
the phone of suspected drug dealer,
Mukglis Toma. Matthews argued that the
wiretap evidence must be suppressed
because he was not named or identified in
any of the applications for extensions of
the wiretap or in the orders granting
those extensions. The trial judge denied
Matthews’ motion to suppress.
Undeterred by the denial of his motion
to suppress, Matthews elected to go to
trial, and on June 6, 1997, a jury found

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Matthews guilty of Counts 1, 7, 13, 14,
16, 44, and 45./2 The judge then
sentenced Matthews to a term of
imprisonment of 188 months, to be
followed by five years of supervised
release, and a special assessment of
$350. Matthews was also ordered to
forfeit $28,000. We affirm.
I. BACKGROUND
During 1993 and 1994, Matthews and
others participated in a conspiracy to
possess, with the intent to distribute,
cocaine and marijuana in the Chicago,
Illinois, area./3 A wholesaler of
cocaine and marijuana, named Mukglis
Toma, was at the center of the
conspiracy, receiving drugs from
suppliers and distributing them to
customers; Matthews was one of Toma’s
biggest customers.
On January 20, 1994, a judge in the
Northern District of Illinois approved
the government’s application for a
thirty-day wiretap on Toma’s cellular
phone, and thereafter granted three
extensions so that the wiretap ran
through May 12, 1994.
Shortly after the wiretap was activated,
FBI agents discovered that Toma
repeatedly called a particular pager
number and that each time he called that
pager, he received a return phone call
shortly thereafter from an individual
identifying himself as "Yum." The FBI
intercepted many of these phone
conversations discussing and arranging
drug transactions in which Toma agreed to
provide Yum with cocaine and marijuana
for distribution.
After subpoenaing the phone records of
Yum’s pager, the agents learned that it
was registered to Fred Wyatt of 503 East
End Avenue in Calumet City, Illinois;
thus, the FBI agents were led to believe
that Yum was Fred Wyatt. Accordingly, all
further applications for extensions of
the wiretap listed Fred Wyatt as one of
the individuals whose conversations were
likely to be the subject of the
authorized phone interceptions.
There were a number of reasons that the
FBI believed that Wyatt was Yum. The
pager number that Toma called was

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registered to Wyatt. Wyatt, whom agents
learned had a criminal history,/4 lived
in the immediate area of the suspected
drug activity. In several of their
recorded conversations, Toma and Yum
discussed meeting at a hot dog stand to
conduct their drug transactions. Because
Wyatt lived near a hot dog stand, the FBI
set up surveillance at the stand near
Wyatt’s home on a number of occasions in
the hope of observing him in a narcotics
transaction. After the surveillance at
the hot dog stand nearest to Wyatt’s
house proved unfruitful as to drug
activity, the FBI set up surveillance at
other hot dog stands in the vicinity of
Wyatt’s house. Despite their repeated
efforts, the FBI never observed the
individual who identified himself as Yum
purchase any narcotics.
After the authorization for the wiretap
expired, the FBI attempted to arrest
those persons whom it concluded were
involved in the drug trafficking
conspiracy at issue. At the time, the FBI
was still convinced that the individual
identifying himself as Yum was Fred
Wyatt, and on May 13, 1994, federal
authorities arrested Wyatt and brought
him in for questioning. The arresting
agents concluded, shortly thereafter,
that, despite their earlier information
and belief, Wyatt was not Yum. Wyatt was
released from custody and all charges
against him were dismissed. As a result
of this setback, the FBI continued to
investigate the drug conspiracy.
After certain individuals involved in
this conspiracy were arrested and began
to cooperate with the authorities in the
investigation, the FBI became aware of
the fact that "Yum" was actually Herman
Matthews; thereafter, Matthews was
arrested and admitted that Yum was, in
fact, one of his nicknames. Matthews,
alias "Yum," was then charged along with
fifteen other individuals with several
counts of possession of cocaine and
marijuana with intent to distribute.
Prior to trial, Matthews filed a motion
to suppress the electronic surveillance
evidence gathered in the course of the
court-ordered wiretap on the phone of
suspected drug dealer, Mukglis Toma.
Matthews argued that even after the
authorities had intercepted phone calls
made by "Yum," one of Matthews’ aliases,

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he was neither named nor identified in
any applications for extensions of the
wiretap order or in the orders granting
such extensions. Thus Matthews claimed
that Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 had
been violated, and any communications
involving him which occurred after the
government learned of "Yum’s" involvement
must be suppressed. See 18 U.S.C.
sec.sec. 2518(1)(b)(iv) and (4)(a)./5
The trial judge rejected Matthews’
arguments and, as stated previously, a
jury convicted Matthews of all but one of
the Counts charged in the indictment.
Matthews appeals the denial of his
motion to suppress, arguing that the
wiretap orders were invalid because they
failed to provide sufficient information
as to the identity of those individuals
whose communications were likely to be
intercepted.
II. DISCUSSION
As we have repeatedly stated, "[w]hen
reviewing the denial of a motion to
suppress, we review the district court’s
conclusions of law de novo, and we review
the court’s findings of fact for clear
error." United States v. Taylor, 196 F.3d
854, 859-60 (7th Cir. 1999) (citation
omitted).
Title III of the Omnibus Crime Control
and Safe Streets Act of 1968 (Title III)
requires that each application
authorizing the interception of wire
communications include "the identity of
the person, if known, committing the
offense and whose communications are to
be intercepted." 18 U.S.C. sec.
2518(1)(b)(iv) (emphasis added). Title
III also requires that each order
authorizing the interception of wire
communications include the identity of
persons, if known, whose communications
are likely to be intercepted. See 18
U.S.C. sec. 2518(4)(a). Title III
provides that intercepted communications
may be suppressed if:
(i) the communication was unlawfully
intercepted;
(ii) the order of authorization or
approval under which it was intercepted
is insufficient on its face; or

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(iii) the interception was not made in
conformity with the order of
authorization or approval.
18 U.S.C. sec. 2518(10).
The Supreme Court has previously
addressed the issue of wiretap
applications, orders, and interceptions,
and under what circumstances the
information obtained from electronic
surveillance must be suppressed. See
United States v. Donovan, 429 U.S. 413
(1977). In Donovan, the government’s
wiretap application listed six
individuals suspected of transacting
illegal gambling over the telephone
wires. In the course of monitoring the
telephone calls, the government learned
the names of other individuals who were
participating in the alleged illegal
gambling. In applying for wiretap
extensions, the government failed to
identify these additional individuals.
The government later indicted several of
these unnamed individuals, and they in
turn moved to suppress the wiretap
evidence based on the government’s
failure to comply with 18 U.S.C. sec.sec.
2518(1)(b)(iv) and (4)(a) in that it did
not identify those individuals in spite
of the fact that agents learned of their
identity during the course of its
investigation. The trial court granted
the unnamed individuals’ motion to
suppress, and the Sixth Circuit affirmed.
The Supreme Court reversed, stating that
wiretap applications must contain the
name of an individual if the government
has probable cause to suspect that the
individual is engaged in illegal activity
and is likely to be intercepted. See
Donovan, 429 U.S. at 428, 431-37.
However, the Court went on to hold that
suppression of the evidence is not
necessarily the appropriate remedy for a
violation of Title III unless the
defendant demonstrates either 1) bad
faith on the part of the government; or
2) prejudice resulting from his failure
to be named in or timely notified of the
intercept order. See id. at 439 n.26; 54
A.L.R. Fed. 599 (1981).
The wiretap statute provides that a
court may approve a wiretap application
if it determines that normal
investigative techniques have failed or
are not likely to succeed and there is

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probable cause to believe that: 1) an
individual is engaged in criminal
activity; 2) communications about the
offense will be obtained through
interception; and 3) the target
facilities are being used in connection
with the suspected criminal activity. See
18 U.S.C. sec. 2518(3)(a)-(d). The
Donovan Court noted that if a
surveillance application meets the
standards enumerated in the statute and a
"judge concludes that the wiretap order
should issue, the failure to identify
additional persons who are likely to be
overheard engaging in incriminating
conversations could hardly invalidate an
otherwise lawful judicial authorization."
429 U.S. at 435 (emphasis added). The
Court held that because there was no
evidence that the government agents
knowingly failed to identify the unnamed
individuals in an attempt to conceal
relevant information that might have
suggested that probable cause was lacking
from the court issuing the order,
suppression was not warranted. See id. at
436 n.23; see also United States v.
DeJesus, 887 F.2d 114, 117 (6th Cir.
1989); United States v. Davis, 882 F.2d
1334, 1344 (8th Cir. 1989); United States
v. Savaiano, 843 F.2d 1280, 1291 (10th
Cir. 1988); United States v. Baker, 589
F.2d 1008, 1011-12 (9th Cir. 1979).
Matthews attempts to distinguish the
case before us from Donovan by arguing
that the government intentionally misled
the district judge who authorized the
issuance of the intercept order by naming
Fred Wyatt in the extension applications
but not Yum. Matthews claims that the
government knew that Wyatt and Yum were
not the same person but intentionally
concealed this fact from the issuing
judge because it would have somehow
jeopardized the government’s
investigation of this particular drug
conspiracy.
The district court dismissed Matthews’
theory as implausible, finding that it
"defies belief." The judge concluded that
the fact that the government disclosed
Wyatt’s name in its request for an
extension of the surveillance orders was
sufficient, finding that the FBI
reasonably believed Wyatt to be the
identity of the intercepted voice. The
record provides ample support for the
trial judge’s conclusion that the
government’s failure to name Herman

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Matthews in its applications for
extensions was based on a lack of
knowledge of the true identity of the
intercepted voice. We are of the opinion
that this conclusion is logical and
reasonable: Yum’s pager was registered to
Wyatt; Wyatt had a criminal record and
lived in the area of the suspected
illegal narcotics activity; Wyatt’s house
was located near a hot dog stand; and
Toma and Yum often planned and discussed
future transactions to take place near
hot dog stands. Furthermore, the record
is barren of any evidence that might lead
us to conclude that the district judge
erred in finding that the government made
an honest mistake in failing to name Yum
or Matthews in its applications for
surveillance; the fact remains that the
police reasonably believed that Fred
Wyatt was Yum, and that the officers did
not know the real identity of Yum until
other individuals were arrested and began
to cooperate with the authorities. The
fact that further investigation revealed
that Wyatt was not Yum does not make the
officers’ original belief unreasonable.
Because Matthews has failed to establish
bad faith on the government’s behalf,
much less any prejudice he suffered, we
agree with the trial judge and conclude
that the admission of the wiretap
evidence was proper.
The decision of the district court is
AFFIRMED.
/1 The superseding indictment named Matthews in
Counts 1, 7, 13, 14, 16, 44, 45, and 66. Count
One charged Matthews and the other defendants
with conspiracy to distribute cocaine and
marijuana and with possession with intent to
distribute kilogram quantities of cocaine and
pound quantities of marijuana. See 21 U.S.C.
sec.sec. 846 and 841(a)(1). Counts 7, 13, and 44
charged Matthews with possession with the intent
to distribute unspecified quantities of cocaine,
see 21 U.S.C. sec. 841(a)(1) and 18 U.S.C. sec.
2, while Counts 14 and 45 charged the defendant
Matthews with the use of a communication facility
to commit and facilitate the commission of felony
drug offenses in violation of 21 U.S.C. sec.
843(b) and 18 U.S.C. sec. 2. Count 16 charged him
with possession with intent to deliver four
kilograms of cocaine, see 21 U.S.C. sec.
841(a)(1) and 18 U.S.C. sec. 2. Finally, Count
66 charged Matthews and others with using and

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carrying firearms during and in relation to the
commission of a drug trafficking crime, in
violation of 18 U.S.C. sec.sec. 924(c) and 2.
/2 Matthews never went to trial on Count 66. Upon
the motion of the government, Count 66 was
dismissed at sentencing.
/3 For a more detailed discussion of the facts
surrounding the drug conspiracy, see United
States v. Magana, 118 F.3d 1173, 1178-80 (7th
Cir. 1997). Magana involved the consolidated
appeals of eight of Matthews’ co-conspirators who
were convicted of a variety of federal narcotics
offenses.
/4 The record does not reflect the exact nature of
Wyatt’s police record.
/5 Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 requires that each
application authorizing the interception of wire
communications include "the identity of the
person, if known, committing the offense and
whose communications are to be intercepted," 18
U.S.C. sec. 2518(1)(b)(iv), and that each order
authorizing the interception of wire
communications specify "the identity of the
person, if known, whose communications are to be
intercepted." 18 U.S.C. sec. 2518(4)(a) (emphasis
added).

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