Federal judge must weigh wiretap question
Kane on witness stand provides no answers
Pennsylvania’s legally embattled former attorney general Kathleen Kane was back in a courtroom last week.
Thistime, she wasn’t there as a defendant but as a witness in a suppression hearing.
Attorneys defending a man charged with running a large heroin distribution ring and then killing a witness against him are seeking to have the wiretap against him tossed out of court.
Lawyers for Price Montgomery, 36, of Mount Washington, say the 2014 wiretap was illegally obtained, and therefore it — and any evidence derived therefrom — must be suppressed.
The prosecution maintains the wiretap was properly authorized, and, even if there is a technical violation, it is not enough to throw out thousands of recorded calls and messages.
U.S. District Judge Mark Hornak heard three days of testimony on the issue in recent weeks but won’t reach a decision until attorneys on both sides have filed additional briefs.
The Haiti trip
Under Pennsylvania law, the top prosecutor in an office — the elected district attorney, himself, or in this case, the elected attorney general — must be the one to authorize an application for a wiretap in writing. If that person is unavailable, he or she may designate a deputy to provide authorization. But, again, it must be done in writing.
So when state agents working the Montgomery case three years ago wanted to obtain a wiretap on his phone, they needed Kane to sign their application.
The problem was, when they scheduled their meeting on
April 14, 2014, in Harrisburg, Kane had already left on a trip to Haiti.
Although her administrative assistant, Kathryn Smith, had prepared a letter temporarily designating first deputy attorney general Adrian King as acting AG while Kane was out of the country, Kane chose not to sign it. Instead, according to the U.S. attorney’s office, she told Ms. Smith that if the need arose, the assistant could sign on her behalf.
Whenit was time to authorize the wiretap, it required the signature of the head of the office. Ms. Smith attempted to contact Kane, and when she couldn’t reach her, Mr. King instructed Ms. Smith to sign the letter designatinghim acting AG, and he then signed the wiretap application.
A short time later, when Kane returned Ms. Smith’s call and learned what had happened, according to court records, Kane replied, “‘You made a bad situation worse,’ or words to that effect.”
However, she did not instruct anyone to withdraw the application or the designation letter, and a month later, the office used parts of that original application to seek an extension on the Montgomery wiretap, which Kane signed.
At the hearing held before Judge Hornak, both Ms. Smith and Mr. King testified, answering questions about the order of events, when documents were signed and about Kane’s involvement.
Mr. King, who was on the stand for about three hours on Monday, told the court that he spoke for 13 minutes with Kane the evening of April 13, and it was clear to him when they discussed the wiretap that Kane approved seeking the authorization.
But when Montgomery’s attorneys called Kane to the stand on Tuesday, she refused to confirm that — or anything. She did not answer any questions.
Instead, the former AG, convicted last year on charges of perjury, obstruction, conspiracy and false swearing pleaded the Fifth Amendment against self-incrimination to each question.
Thomas J. Farrell, who represented Kane at the hearing, did not return a phone call for comment.
The initial drug case
Montgomery, along with co-defendant James Perrin, was initially charged in the drug case in state court in the Allegheny County Common Pleas Court on June 8, 2014. Montgomery was released on bond the next day. According to federal prosecutors, just two months later, on Aug. 22, he killed Tina Crawford, 34, in the garage of a house on Cherokee Street in the Hill District. Ms. Crawford was scheduled to meet officials at the U.S. attorney’s office about an hour later in connection with the drug investigation into Montgomery.
Documents filed in the federal case allege that Montgomery used Ms. Crawford as a courier to retrieve large amounts of heroin from New Jersey and return them to Pittsburgh. State agents working the case, in May 2014, obtained court authorizationfor a tracking device to be installed on a car Ms. Crawford was renting that she allegedly used for the trips.
After Ms. Crawford was killed,the state drug case was withdrawn, and the U.S. attorney’s office obtained a federal indictment. Charges were added regarding her death.
In the defense motion to suppress, attorneys Jay McCamic and Douglas Sughrue wrote that the AG’s office did not follow the state criminal statute in getting the wiretap.
“The Supreme Court has held that where an attorney general’s assistant signs the designation letter authorizing an assistant/deputy attorney general to make an application for a wiretap when the attorney general has not, in fact, so designated such authority, the evidence obtained as a result of a wiretap granted on such an application must be suppressed,” they said.
“Additionally,” their motion continued, “an otherwise proper designation issued after a wiretap application has been granted does not cure, or render harmless, the prior lack of authorization.”
But, according to the response filed by assistant U.S. attorney Troy Rivetti, there was no error in the wiretap application.
Kane was personally involved in the initial discussions on April 1, 2014, about putting a wiretap on Montgomery’s phone and was supportive of it.
That she, personally, did not sign the application does not impact its validity, he continued, and should not result in suppression.
According to the 3rd U.S. Circuit Court of Appeals, the prosecutor wrote, “‘It is clear from a reading of [precedent] that the important consideration is not whose name appears on the authorization, and certainly not who signed the authorization. Rather, the important consideration is who actually granted the authorization for the wiretaps.’ ”
Even if there was a technical defect in the process, Mr. Rivetti continued, it should fall under the good faith exception in federal law.
“The Supreme Court created this exception to the exclusionary rule out of its recognition that suppression of valuable evidence imposes significant costs by hindering the courts’ truth-seeking function; as a result, exclusion is only appropriate where its benefits outweigh its burdens,” he wrote. “As noted, the Supreme Court has expressly clarified that not every failure to comply with relevant requirements renders a wiretap unlawful ... .
“[T]his case should be treated at worst in the same manner where courts have found only technical defects — that do not warrant suppression — where the application or order either misidentified, or failed to identify, the appropriate official authorizing the application.”