Motions to suppress; Wiretap evidence; Title III of the Omnibus Crime Control & Safe Streets Act; Necessity requirement; United States v Gardner; United States v Alfano; Facebook evidence; Overbreadth challenge to search warrants; United States v Hanna; Two-step warrant; FedRCrimP 41(e)(2)(B); Cell phone evidence; Probable cause; Sixth Amendment right to counsel; Prison-mail policy; Lack of any intrusion; The Confrontation Clause; Cross-examination; Sufficiency of the evidence; Conspiracy to distribute controlled substances & racketeering conspiracy; Sentencing; Procedural reasonableness; Enhancement under USSG § 2D1.1(b)(1); Acquitted-conduct amendment; § 1B1.3(c)

[This appeal was from the ED-MI.] The court held that defendants’ motions to suppress were properly denied, and rejected Sixth Amendment challenges related to a prison-mail policy and cross-examination of a confidential informant (CI). It held that there was sufficient evidence to support defendant-Fordham’s conspiracy to distribute controlled substances and racketeering conspiracy convictions. But it vacated his sentence on procedural grounds related to application of the § 2D1.1(b)(1) enhancement. He and defendants-Murff and Reid “held top posts within the Almighty Vice Lord Nation” (ALVN). They were each convicted of racketeering conspiracy, conspiracy to distribute controlled substances, and related crimes. On appeal, the court first held that the Murff wiretap application satisfied “each of the three necessity criteria” it has applied to Title III. Thus, the “challenged wiretap approval was lawful, as was the admission of the resulting evidence.” It next rejected Fordham and Reid’s overbreadth challenges to the search warrants that resulted in evidence from their Facebook accounts, and Reid’s similar challenge to the search warrant for his cell phone. Murff’s claim that a prison-mail policy violated his constitutional right to counsel failed because the policy did not constitute an intrusion. The only harm he alleged arose “from steps he took to avoid potential intrusions that could occur under the” policy – he did not claim that any “intrusion into his attorney-client relationship actually occurred.” As to Fordham’s confrontation claim, the court found that “the jury had sufficient evidence ‘to assess [Fordham’s] theory of bias’ and arguments about CI-27016’s truthfulness.” The testimony about the CI’s “criminal history was extensive” and questioning “probed his personal incentives to cooperate.” Next, the court held that there was “sufficient evidence tying Fordham to the drug conspiracy” and to support his racketeering conspiracy conviction, including his “status as the top Vice Lord in” Michigan, and “a bevy of predicate acts by Fordham and other AVLN members comprising drug and violent offenses[.]” But it remanded for his resentencing because “the district court did not squarely address [his] written acquitted-conduct objection” to § 2D1.1(b)(1). It affirmed defendants’ convictions.