Opposition Brief — Ernest Milton Glover, et al., Petitioners v. United States

No. 17-8382

IN THE SUPREME COURT OF THE UNITED STATES

ERNEST MILTON GLOVER, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

JOHN M. PELLETTIERI

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether petitioners’ counsel rendered ineffective assistance,

in violation of the Sixth Amendment, by failing to move to suppress

recordings of conversations intercepted with court authorization

under Title III of the Omnibus Crime Control and Safe Streets Act

of 1968, 18 U.S.C. 2510 et seq., where petitioners were not parties

to the conversations and the conversations did not occur on

petitioners’ premises.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

No. 17-8382

ERNEST MILTON GLOVER, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A18) is

reported at 872 F.3d 625. The opinion of the district court is

reported at 174 F. Supp. 3d 431.

JURISDICTION

The judgment of the court of appeals was entered on October

10, 2017. A petition for rehearing was denied on December 15,

2017. (Pet. App. A20-A21). The petition for a writ of certiorari

was filed on March 1, 2018. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the District of Columbia, petitioners were convicted of

conspiracy to distribute and to possess with intent to distribute

one kilogram or more of phencyclidine (PCP), in violation of

21 U.S.C. 841(a)(1) and (b) (1) (A) (iv), and 846. Pet. App. A2.

Both petitioners were sentenced to life imprisonment, ibid., the

court of appeals affirmed, 681 F.3d 411, and this Court denied

certiorari, 568 U.S. 988, 995. Petitioners subsequently filed

motions under 28 U.S.C. 2255 to vacate their convictions, which

the district court denied. 174 F. Supp. 3d 431. The court of

appeals affirmed. Pet. App. Al1-A18.

1. Petitioners conspired with Lonnell Glover (petitioner

Glover’s brother) and Anthony Suggs to distribute PCP, and their

activities attracted the attention of federal investigators. Pet.

App. A3, A17-A18. In 2007, the government filed an application

seeking authorization under Title III of the Omnibus Crime Control

and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq., to install

a listening device in Lonnell Glover’s truck. 174 F. Supp. 3d at

442; see Pet. App. A3-A9. The affidavit in support of the

application stated that the truck was parked at the Baltimore-

Washington International Airport (BWI) in Maryland and identified

petitioners as “persons who were ‘participat[ing]’ in an ongoing

conspiracy to distribute PCP in the District of Columbia and who

3

‘have used, are using, and will continue to use * * * [Lonnell

Glover’s truck] in connection with the above described offenses.’”

174 F. Supp. 3d at 442 (citation omitted; brackets in original);

see Pet. App. A3. The affidavit asserted that there was probable

cause to believe that petitioners and others were engaging in

“cellular telephone conversations and oral communications in and

within the vicinity of the target vehicle” to further their drugtrafficking activity and “probable cause to believe that the known

likely interceptees” would include petitioners. 174 F. Supp. 3d

at 442 (citations omitted).

A district court in the District of Columbia granted the

application, finding probable cause to believe that petitioners

and others were part of a conspiracy to distribute drugs in the

District of Columbia and that the listening device would intercept

incriminating oral communications relating to their roles in that

conspiracy. Pet. App. A3; 174 F. Supp. 3d at 442. The court

issued an order stating that the FBI could install the listening

device in Lonnell Glover’s truck in the District of Columbia, the

District of Maryland, or the Eastern District of Virginia. Pet.

App. A8. Law-enforcement agents installed the device while the

truck was parked at BWI and used the device to record conversations

over a period of 90 days, pursuant to the initial court order and

two extensions. Id. at A3; 174 F. Supp. 3d at 442. The

applications for the extensions again named petitioners as targets

4

of both the investigation and the interceptions. 174 F. Supp. at

442. Neither petitioner was a party to any of the recorded conversations, but several of the conversations incriminated petitioners. Pet. App. A4; 174 F. Supp. 3d at 443. In those conversations, Lonnell Glover and others alluded to petitioners’

involvement in the drug-trafficking conspiracy. Pet. App. A4.

2. Petitioners were charged with conspiracy to distribute

and to possess with intent to distribute one kilogram or more of

PCP, in violation of 21 U.S.C. 841(a)(1) and (b) (1) (A) (iv), and

846, and petitioners proceeded to trial on those charges. Pet.

App. A2-A3.

At trial, the government introduced recordings of

approximately 80 calls obtained via a wiretap on Suggs’s cell

phone, which had been authorized in an order separate from the one

for the listening device in Lonnell Glover’s truck. Pet. App. A4-

A5. Although none of the conversations expressly mentioned PCP,

“when viewed in context of the other evidence at trial that

established that Suggs was a supplier of PCP to lower-level

distributors, * * a rational jury would have no trouble

recognizing that what these calls were really about was Suggs

supplying [petitioners] and others with PCP.” 174 F. Supp. 3d at

ut

450; see Pet. App. Al7. There were “many calls,” including calls

with both petitioners, “where Suggs is talking to the other party

about trying to arrange a meeting so that Suggs can make a delivery

5

of PCP.” 174 F. Supp. 3d at 450. “In one of the more highly

incriminating series of calls,” Suggs and petitioner Price

“abort[ed] their plan to meet due to suspicion that they [we]re

under police surveillance.” Id. at 451; see Pet. App. AS. In

other calls, petitioners and their confederates discussed money

“in a way that strongly suggest[ed]” that petitioners were “in the

business of selling PCP” that they had gotten from Suggs. Ibid.

The government also introduced five recordings from the

listening device installed in Lonnell Glover’s truck. Pet. App.

A4. In addition, the government presented evidence seized from

petitioner Glover’s home, including $985 in cash, a digital scale,

a baggie containing heroin, bottles exhibiting the odor of PCP,

and two firearms. Id. at Aé. The heroin and weapons were admitted

only against petitioner Glover, but the other evidence from

petitioner Glover’s home was admitted against both petitioners.

Ibid. The jury also heard stipulations, admissible only against

petitioner Glover, describing petitioner Glover’s previous

conviction for unlawful distribution of PCP. Ibid. And the

government presented evidence of two controlled buys of PCP, one

from Suggs and one from another co-defendant, as well as the

seizure of “significant quantities of PCP and paraphernalia from

the residences of various co-conspirators, including 7.7 kilograms

of PCP from Suggs’s residence.” Id. at A7; see id. at A6-A7.

6

The jury found petitioners guilty, and the district court

sentenced them (in light of their prior convictions) to mandatory

minimum terms of life imprisonment. Pet. App. A7; see 174 F. Supp.

3d at 435 n.2. On direct appeal, the court of appeals affirmed,

describing the evidence against petitioners as “extensive” and

“voluminous.” Pet. App. A7 (quoting 681 F.3d at 417, 424).

Seventeen months later, the court of appeals overturned Lonnell

Glover’s conviction, which was the result of a separate trial,

based on its conclusion that the order authorizing the listening

device in his truck had been facially insufficient, and evidence

collected pursuant to it subject to suppression under Title III,

because it purported to authorize the installation of the listening

device outside the district court’s territorial jurisdiction.

United States v. Glover, 736 F.3d 509, 514-516 (D.C. Cir. 2013).

3. Petitioners filed motions to vacate their convictions,

alleging that they had received ineffective assistance of counsel

at trial and on appeal. 174 F. Supp. 3d at 435. As relevant here,

petitioners claimed that their attorneys were ineffective for

failing to move to suppress the recordings from Lonnell Glover’s

truck. Pet. App. A9. Petitioners contended that they had

statutory “standing” to seek suppression under Title III because

they were targets named in the application for the truck’s

listening device, even though the device did not actually capture

their conversations. Ibid.

7

The district court denied the motion, finding that even if

petitioners could show that counsel performed deficiently, they

could not demonstrate the additional element of prejudice

necessary to make out a constitutional ineffective-assistance-ofcounsel claim. See 174 F. Supp. 3d at 442-452. The court declined

to decide whether petitioners would have had statutory standing to

seek suppression of the recorded conversations from the truck.

Id. at 443-448. Instead, the court determined that, even if

standing existed and the truck recordings were inadmissible,

petitioners “cannot show that they were prejudiced by the admission

of this evidence” because “a jury hearing only the admissible

evidence would have reached the same verdict.” Id. at 448. The

court explained that “[t]his is not a case where the verdict is

only ‘weakly supported’ by the admissible evidence.” Id. at 449

wv

(citation omitted). Rather, the court emphasized the “*voluminous

evidence presented at trial,’” with “[t]Jhe bulk of the evidence”

against petitioners coming “from the wiretap on Suggs’ cell phone.”

Id. at 449-450 (quoting 681 F.3d at 424). “Having closely reviewed

the evidence” presented at petitioners’ trial, the court was

“satisfied that the admissible evidence strongly supported the

verdicts against both [petitioners].” Id. at 452.

The district court also found that the truck recordings “were

a

far from the best evidence against either [petitioner],” in part

because neither petitioner “was a party to any of the kk *

8

conversations.” 174 F. Supp. 3d at 452. Although the conversations were “incriminating,” the court did “not believe that a

jury would have given these relatively brief, out-of-court

statements by other coconspirators the weight [petitioners]

suggest” or that the truck recordings “would have had a ‘pervasive’

effect on the inferences that jury drew from all of the other

admissible and incriminating evidence.” Ibid. ™“[C]onsidering the

strength of the admissible evidence as compared to the excludable

evidence,” the court was “persuaded that a jury hearing only the

admissible evidence would have reached the same verdict as a jury

that also heard the excludable evidence.” Ibid.

4. The court of appeals affirmed. Pet. App. A1-A18. As

relevant here, the court determined that “the status of the law on

target standing under Title III” resolved petitioners’ claim that

their counsel provided ineffective assistance in failing to move

to suppress the truck recordings. Id. at Al3. The court perceived

“an entrenched disagreement between jurisdictions” on the question

of Title III target standing, id. at A10, and noted that the court

“ha [d] never itself directly decided whether targets of

surveillance have standing as such under Title III’s ‘aggrieved

person’ definition,” id. at Al2. The court likewise declined to

“resolve the question of Title III target standing” in petitioners’

case. Id. at AQ.

9

Instead, the court of appeals determined only that “counsel

was not ineffective for failing to raise a challenge of uncertain

merit based on unsettled law.” Pet. App. Al0. The court reasoned

that “[t]he inguiry for deficiency looks at performance ‘as of the

time of counsel’s conduct’ and accordingly does not require counsel

to propound vanguard arguments to meet the bare minimum required

by the Sixth Amendment.” Id. at Al13 (citation omitted). Given

the absence of any “evidence in the record that counsel were ill-

au uw

prepared or failed to research the law on this issue,” and “in

light of the deeply unsettled law on the question of standing,”

the court found that “trial counsel did not perform below the

constitutional standard in electing not to challenge the Truck

Bug, and appellate counsel was similarly not deficient in declining

to raise the issue on appeal.” Ibid.

Because the court of appeals concluded that “counsel was not

deficient for failing to challenge” the truck recordings, the court

declined to address whether counsel’s performance prejudiced

petitioners. Pet. App. Al13.

ARGUMENT

Petitioners contend (Pet. 4-10) that this Court’s review is

warranted to resolve a question the court of appeals did not decide

below: whether they had standing under Title III of the Omnibus

Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq.,

to move to suppress recordings from Lonnell Glover’s truck.

10

Petitioners further contend (Pet. 10-14) that the court of appeals

erred in determining that defense counsel were not constitutionally

deficient in not challenging the truck recordings. The court of

appeals’ decision was correct and does not conflict with any

decision of this Court or of another court of appeals. Moreover,

this case would be an unsuitable vehicle for addressing either

issue petitioners seek to raise, because, in light of the otherwise

overwhelming evidence, defense counsel’s failure to seek suppression here did not prejudice petitioners and therefore did not constitute ineffective assistance, in violation of the Sixth Amendment. Further review is not warranted.

1. To establish ineffective assistance of counsel, a

defendant must’ prove’ both (1) deficient performance’ and

(2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687

(1984). Strickland’s deficient-performance prong requires a

showing that “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. at 687. A defendant must therefore “show that

counsel’s representation fell below an objective standard of

reasonableness” under “prevailing professional norms” and overcome

the “strong presumption” that counsel’s conduct fell “within the

wide range of reasonable professional assistance.” Id. at 688-

689. And as this Court has explained, “[a] fair assessment of

attorney performance requires that every effort be made to

11

eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Id. at 689.

Petitioners contend (Pet. 4-10) that their attorneys should

have argued that petitioners had standing to move to suppress the

truck recordings on the theory that they were named as targets in

the Title III applications authorizing those interceptions, even

though petitioners were not parties to the recorded conversations

and the conversations did not occur on their premises. But

petitioners identify no court that had adopted their view of Title

III standing at the time of their trial and direct appeal. See

Pet. 4-10. Indeed, by the time of petitioners’ trial, several

courts of appeals had determined that “only ‘one who participated

in the intercepted conversation or on whose premises’ the

conversation occurred’ had standing to challenge the fruits of an

illegal wiretap” under Title III. United States v. Kelley, 140

F.3d 596, 604 n.7 (5th Cir.) (quoting United States v. Scasino,

513 F.2d 47, 50 (5th Cir. 1975)), cert. denied, 525 U.S. 880, and

525 U.S. 908 (1998); see United States v. Bagguley, 1987 WL 35045,

at *4 (4th Cir. 1987) (per curiam) (“An ‘aggrieved person’ is

defined by § 2510(11) to include only those persons’ whose

conversations were overheard or those persons who had some rights

in the premises where the conversations took place.”); United

States v. Bynum, 513 F.2d 533, 535 (2d Cir.) (determining that

12

defendants were not “aggrieved persons” within the meaning of Title

III because they did not participate in the intercepted

conversations and did not “have an interest in the premises” where

the conversations took place), cert. denied, 423 U.S. 952 (1975);

United States v. King, 478 F.2d 494, 506 (9th Cir.) (holding that,

under Title III, “a defendant may move to suppress the fruits of

a wire-tap only if his privacy was actually invaded; that is, if

he was a participant in an intercepted conversation, or if such

conversation occurred on his premises”), cert. denied, 414 U.S.

846 (1973), and 417 U.S. 920 (1974). The decision below perceived

that some courts of appeals had “disagree[d]” on this issue, Pet.

App. All, but identified only decisions that came after

petitioners’ trial and appeal, see ibid. (citing cases).

Given “the status of the law on target standing under Title

III,” Pet. App. A1l3, which did not provide substantial support for

petitioners’ standing to challenge the truck recordings, their

counsel were not constitutionally deficient for forgoing such a

challenge. Cf. United States v. Ruggiero, 928 F.2d 1289, 1303 (2d

Cir.) (holding that defendants were not “aggrieved person[s]”

under Title III even though they were named as targets of the

surveillance), cert. denied, 502 U.S. 938 (1991). Petitioners’

attorneys were not ineffective for failing to “propound vanguard

arguments” that no court of appeals had adopted at the time of

petitioners’ trial or appeal. Pet. App. Al3; see Maryland v.

13

Kulbicki, 136 S. Ct. 2, 4 (2015) (per curiam) (“Counsel did not

perform deficiently by dedicating their time and focus to elements

of the defense that did not involve poking methodological holes in

a then-uncontroversial mode of ballistics analysis.”); Allen v.

United States, 829 F.3d 965, 968 (8th Cir. 2016) (“[T]he failure

of counsel to argue for an extension of the law or a novel

interpretation of circuit precedent is not constitutionally

deficient performance.”), cert. denied, 138 S. Ct. 59 (2017).

2. Petitioners contend (Pet. 4-10) that this Court should

grant review to resolve an asserted disagreement in the courts of

appeals regarding “whether, and to what extent, Title III statutory

standing differs from Fourth Amendment’ standing.” Pet. 4

(capitalization altered; emphasis omitted). As an initial matter,

this case is not a suitable vehicle for addressing that question

because the courts below declined to decide whether petitioners

had standing under Title III to challenge the truck recordings.

See 174 F. Supp. 3d at 443-448; Pet. App. A9-A10. This Court is

one “of review, not of first view,” Cutter v. Wilkinson, 544 U.S.

709, 718 n.7 (2005), and should not consider the issue in the first

instance. And given that petitioners do not allege that the courts

of appeals were divided at time of their trial or direct appeal,

any resolution of this issue now would not suggest that counsel

were ineffective then, see Strickland, 466 U.S. at 689, and would

thus have no bearing on the issue that this case actually presents.

14

In any event, petitioners have identified no current

disagreement in the courts of appeals that warrants this Court’s

review. Petitioners rest their claim of a circuit conflict on two

decisions issued after the court of appeals affirmed petitioners’

convictions on direct appeal. See Pet. 5 (citing United States v.

Asker, 676 Fed. Appx. 447, 455 (6th Cir. 2017), and United States

v. Oliva, 705 F.3d 390, 395 (9th Cir. 2012)). Neither decision

shows that the courts of appeals are divided.

In Asker, an unpublished and thus non-precedential decision,

see Sun Life Assurance Co. v. Jackson, 877 F.3d 698, 702 (6th Cir.

2017), cert. denied, 138 S. Ct. 2624 (2018), a Sixth Circuit panel

concluded that Asker lacked standing to challenge the admission of

intercepted conversations to which he was not a party. Asker, 676

Fed. Appx. at 454-455. In reaching that conclusion, the Sixth

Circuit noted that Asker was not “a person against whom the

interception was directed,” 18 U.S.C. 2510(11), observing that

someone else’s phone “was the subject of the contested search” and

that “the government’s wiretap application listed eight ‘Target

ut

Subjects’ for monitoring,” none of whom was Asker. Asker, 676

Fed. Appx. at 455. But the court of appeals did not hold that

listing a person as a target in a wiretap application automatically

confers Title III standing to challenge any communications

intercepted as a result of that application. See ibid. To the

contrary, Asker recognized that “wiretap searches are subject to

15

the same established principle that governs alleged Fourth

Amendment violations: suppression of the product of a violative

search can be successfully urged only by those whose rights were

violated by the search itself, not by those who are aggrieved

solely by the introduction of damaging evidence.” Ibid. (brackets

and internal quotation marks omitted). Asker therefore does not

show that the Sixth Circuit would necessarily have found that

petitioners had Title III standing on the facts of this case.

The Ninth Circuit’s decision in Oliva likewise does not show

a conflict that warrants this Court’s review. In that case, the

Ninth Circuit determined that the affidavits in support of the

Title III orders were sufficient to establish that Oliva was an

“aggrieved person” -- “[i]rrespective of Oliva’s refusal to admit

that the voices in the conversations intercepted included his own

or that any of the intercepts took place on his premises” --

because the affidavits “included investigators’ statements

certifying their beliefs that he was using the individual cellular

phones at issue” and “Oliva’s conversations were the target of the

surveillance.” 705 F.3d at 395. To the extent Oliva might be

read to suggest that a defendant’s identification as a target in

a Title III application, without more, invariably confers Title

III standing, it would be difficult to square with the Ninth

Circuit’s previous statement that “a defendant may move to suppress

the fruits of a wire-tap only if his privacy was actually invaded;

16

that is, if he was a participant in an intercepted conversation,

or if such conversation occurred on his premises.” King, 478 F.2d

at 506. And any intracircuit conflict would not warrant this

Court’s review. See Wisniewski v. United States, 353 U.S. 901,

902 (1957) (per curiam).

3. Petitioners additionally contend (Pet. 10-14) that this

Court should grant review to decide when a defense attorney’s

failure to file a motion to suppress constitutes ineffective

assistance of counsel. That contention does not warrant this

Court’s review. As explained above, the court of appeals correctly

determined that petitioners’ attorneys were not ineffective for

failing to seek suppression of the truck recordings, and

petitioners identify no court of appeals that would have reached

a different outcome in this case.

Although some circuits place more emphasis on the prejudice

component, as opposed to the performance component, in analyzing

the absence of a motion to suppress, petitioners have not shown

that any circuit would grant relief in these circumstances. In

Thomas v. Varner, 428 F.3d 491 (2005), cert. denied, 549 U.S. 1110

(2007), for example, the Third Circuit concluded that “failure to

move to suppress or otherwise object to an in-court identification

by the prosecution’s central witness, when there are compelling

grounds to do so, is not objectively reasonable representation,

absent some informed strategy.” Id. at 501. Although the court

17

further noted that “it would not be objectively unreasonable for

counsel to decline to make a motion to suppress during a trial

when either the motion is plainly without merit or the evidence is

of little probative value,” id. at 502, it does not follow that

the Third Circuit would find petitioners’ attorneys ineffective

for not advancing a suppression argument that no court of appeals

had adopted. In any event, the Third Circuit recognized that, to

satisfy Strickland’s prejudice component, a defendant “must show

that he would likely have prevailed on the suppression motion”

that he claims his counsel was deficient for failing to file.

Ibid. Petitioners cannot satisfy that standard here.

The Fourth and Seventh Circuit’s analysis of ineffectiveassistance-of-counsel claims also does not help petitioners. As

petitioners note (Pet. 10, 13), the Fourth Circuit has stated that,

“[u]nder the deficient performance prong of Strickland, it is

enough to call into question counsel’s performance that an unfiled

74

motion [to suppress] would have had ‘some substance. Grueninger

v. Director, 813 F.3d 517, 524-525 (2016) (quoting Tice v. Johnson,

647 F.3d 87, 104 (4th Cir. 2011)). But the Fourth Circuit has

also emphasized that Strickland’s prejudice prong requires a

defendant to show “that the motion was meritorious and likely would

have been granted.” Id. at 525. The Seventh Circuit has

18

articulated a similar requirement.* See Hicks v. Hepp, 871 F.3d

513, 526 (2017) (“To successfully advance a claim of ineffective

assistance of counsel based upon the failure to file a motion to

suppress, a petitioner must demonstrate that there was * * * a

reasonable probability that he would have prevailed on the motion

to suppress.”) (citation and internal quotation marks omitted).

Because petitioners cannot satisfy that requirement here, the

Fourth and Seventh Circuits would conclude that their attorneys

were not constitutionally ineffective.

4. In any event, this case would be a poor vehicle for

addressing petitioners’ contentions because petitioners would not

be entitled to relief even if they prevailed on those issues. Even

assuming petitioners’ counsel were deficient in not filing a

suppression motion, and even assuming that motion would have been

granted, they cannot prevail on their ineffectiveness claim unless

they show a “reasonable probability” that the ultimate outcome of

* Petitioners contend that “[t]he law in the Seventh

Circuit is inconsistent on this issue.” Pet. 10 n.3 (citing

Rodriguez v. Young, 906 F.2d 1153 (7th Cir. 1990)), cert. denied,

498 U.S. 1035 (1991). In Rodriguez, the Seventh Circuit concluded

that defense counsel was ineffective for failing to move to

suppress testimony of “crucial importance” where there were

“substantial arguments for its exclusion.” 906 F.2d at 1161; see

also id. at 1161 n.3 (noting that criminal defense lawyers should

move to suppress “[o]nly evidence for which there are colorable

grounds for exclusion”). Petitioners would not prevail under that

test, and in any event, any intracircuit tension would not warrant

this Court’s review. See Wisniewski, 353 U.S. at 902.

19

the trial would have been different. Strickland, 466 U.S. at 694;

see id. at 695. They cannot do so.

As the district court explained, “[t]his is not a case where

the verdict is only ‘weakly supported’ by the admissible evidence.”

174 F. Supp. 3d at 449. Rather, “there was ‘voluminous evidence

presented at trial,’” and “[t]he bulk of the evidence against

[petitioners] came from the wiretap on Suggs’ cell phone,” which

is not at issue here. Id. at 449-450 (quoting 681 F.3d at 424).

Furthermore, the truck recordings “were far from the best evidence

against either [petitioner].” Id. at 452. The district court

therefore determined that, even if petitioners had standing and

the truck recordings were inadmissible, petitioners “cannot show

that they were prejudiced by the admission of this evidence”

because “a jury hearing only the admissible evidence would have

reached the same verdict.” Id. at 448. The district court’s

analysis is correct, and because petitioners cannot overcome the

prejudice prong of Strickland, granting further review in this

case would not change the outcome of their cases.

20

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

JOHN M. PELLETTIERI

Attorney

AUGUST 2018