Wiretap issues plague case against drug bust

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There were 16 kilograms of cocaine in a Cleveland building and 25 more in a truck parked nearby at the time of a September 2009 raid, federal prosecutors indicated in a 2010 indictment.

What perhaps seemed like an open-and-shut case, though, continues four years later, thanks to questions raised by an inmate and a California defense attorney regarding records of federal phone surveillance.

Last week a federal judge in Pittsburgh spent two days hearing testimony on discrepancies measured in seconds between phone company call records and federal agents' logs of calls, which the defense portrayed as evidence of illegal surveillance. The prosecution painted it as a diversion.

U.S. District Judge Joy Flowers Conti didn't tip her hand on whether she thought there was anything amiss in the piles of phone records that have supplanted the heaps of drugs as centerpieces of the case against Michael Dwayne Blackwell, 45, and Erin Dale House, 41. She said testimony can continue Jan. 6.

Already proven: In the digital world, criminal court fights hinge on obscure questions about the flow of information through phones, towers and wires, and surveillance technologies like pen registers, digital wiretaps and shadowy devices called Triggerfish and Stingrays.

Monitoring phones is "a really effective tool, but it's really considered, and always has been, an investigative tool of last resort," said Ben Levitan, a former telecommunications executive who testified for the defense at the hearings. "The battle we're having in court, that I consistently have, is: Are these valid wiretaps?"

According to court records, the case against Mr. Blackwell of Downey, Calif., and Mr. House of Riverside, Calif., started with another man's June 2009 traffic stop in Illinois.

Illinois police found 83 kilograms of cocaine in an Ohio-bound truck, and Mr. Blackwell's number on the driver's cell phone. The FBI then began to log the calls made from Mr. Blackwell's phone -- a process called a pen register -- and capturing data on incoming calls through a so-called trap and trace.

To pen/trap a phone, law enforcement needs to tell a magistrate judge that such monitoring is relevant to a criminal investigation.

If agents want to see location data gleaned from the phone's interactions with towers or the global positioning system, they have to show the magistrate that there's probable cause that the subject has committed a crime.

To take the next step, and listen to calls on a wiretap, agents need not only a warrant from a district judge approving their affidavit of probable cause, but approval from the Department of Justice in Washington.

That's why some investigations start with a pen/trap and progress to a wiretap.

In the Blackwell case, court records suggest that the pen/trap led to a wiretap, which in turn helped to inform searches of the building in Cleveland, a truck driven by Mr. House and residences in California. Mr. Blackwell and Mr. House face charges of interstate travel to promote drug trafficking, possession with intent to distribute cocaine, and possession with intent to distribute heroin, based on one kilogram of that narcotic which police said was in the truck.

Mr. House, who is representing himself, and Beverly Hills attorney Jerry Kaplan, representing Mr. Blackwell, are trying to use data stemming from the pen/trap to undermine the warrants, gut the evidence and beat the charges.

They've hired Mr. Levitan, who claims that Sprint Corp. phone records and pen/trap logs disagree in ways that can only be explained by illegal surveillance.

For instance, both phone company records and pen/trap logs show that Mr. Blackwell's phone received a call at 1:20 p.m. on Aug. 21, but they disagree on the exact time by 24 seconds. Sometimes the duration of a call is as much as half a minute longer on the pen log than on the phone company record. Some calls shown on one set of records aren't even indicated on the other.

According to Mr. Levitan, of 2,914 calls involving Mr. Blackwell's phone over three-plus months, phone company records and pen/trap logs showed the same times just 3 percent of the time.

He said the times should be no more than a fraction of a second different.

"There's numerous discrepancies between what I received as call detail records from Sprint and what I received as purported to be pen registers," Mr. Levitan said in testimony before Judge Conti. "Most of the pen register times occurred well before the call detail times, which is an anomaly to me."

Experts called by the prosecution offered explanations. They said that while the phone company registers a call only when the phone connects with the tower, pen/traps begin logging the time even as the subject starts to dial. They also said that the clocks used by phone companies aren't precisely synchronized, nor are they necessarily the same as those used by law enforcement's pen trap system.

"That's a whole different system?" an incredulous Mr. Kaplan asked Henry Hodor, a witness for the prosecution.

"Correct," said Mr. Hodor, who is president of Tridea Works, a telecommunications consulting firm whose lone client is the FBI.

Mr. Levitan said it was absurd to think that clocks on which phone companies rely would be out of synch. "My opinion is that I believe there was a 'man in the middle' " between Mr. Blackwell's phone and the cell tower, he said.

That "man" would actually be a "device that connected to the call prior to the call being picked up by a Sprint cell tower," he said. He told Judge Conti about portable devices called Triggerfish or Stingrays that mimic cell towers and capture data from nearby cell phones.

Allegations that the FBI uses such devices have emerged in federal courts, and privacy groups have obtained confirmation of their use through Freedom of Information Act requests.

Assistant U.S. attorney Troy Rivetta, who cross-examined Mr. Levitan, implied that talk of Triggerfish was a red herring.

"Have you ever actually seen a Triggerfish?" Mr. Rivetti asked.

"No, sir," Mr. Levitan said.

If the hundreds of minor discrepancies between the phone records and the pen/trap logs were due to a Triggerfish, Mr. Rivetti said, then agents carrying such devices "would have had to follow around Mr. Blackwell and be close by" around-the-clock for months.

Mr. Kaplan said that cases like this are about more than drugs.

"The invasion of our privacy not only affects guys like these," he said of the defendants. "It affects all of us."

Rich Lord: rlord@post-gazette.com, 412-263-1542 or on Twitter @richelord.

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