United States v. Bourrage: Expanding Standing and Franks‐Hearing Standards Under Title III

1. Introduction

In United States v. Bourrage (5th Cir. May 21, 2025), the Fifth Circuit considered five appellate challenges by cousins Donovan and Orlando Bourrage to their convictions for conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841 and 846. The key issues on appeal were:

Whether the appellants had statutory standing to challenge wiretap evidence obtained under Title III;
Whether their joint motion to suppress was untimely under Fed. R. Crim. P. 12(c);
Whether they were entitled to a Franks hearing to test alleged falsehoods in the wiretap affidavits;
Whether the wiretap orders were facially deficient for failing to name the authorizing DOJ official;
Additional evidentiary, sufficiency‐of‐the‐evidence, jury instruction, and sentencing guideline challenges.

The court affirmed all rulings of the district court. In doing so, it elaborated a number of important principles affecting the wiretap‐suppression process, the scope of Title III standing, and the propriety of Franks hearings in the wiretap context.

2. Summary of the Judgment

A jury convicted Donovan and Orlando Bourrage of conspiracy to distribute methamphetamine. They unsuccessfully moved to suppress evidence derived from a May–June 2020 Title III wiretap. On appeal, they made five arguments:

Their Title III motions to suppress were untimely and they lacked standing;
A Franks hearing was required to test the veracity of the wiretap affidavits;
The wiretap orders were facially insufficient for not naming the Deputy Assistant Attorney General;
Agent McCombs’s lay‐opinion testimony about coded drug language was improper;
There was insufficient evidence of conspiracy, coercive jury instructions, and Errors in guideline enhancements.

The Fifth Circuit held, inter alia, that:

“Aggrieved person” standing under 18 U.S.C. § 2510(11) extends to any target or participant in intercepted communications;
A suppression motion filed two days late under Rule 12(c) was properly denied for lack of good cause and prejudice, and no plain error warranted reversal;
No Franks hearing was required because even excising alleged misstatements from the affidavits, probable cause remained;
The wiretap orders named the requisite Deputy Assistant Attorneys General, so they were facially sufficient;
Agent McCombs’s code‐word testimony was admissible lay opinion under Fed. R. Evid. 701;
The evidence amply supported the conspiracy convictions and no coercive instruction was given;
Sentencing enhancements under U.S.S.G. §§ 3B1.1(b) and 2D1.1(b)(1) were properly applied.

3. Detailed Analysis

3.1 Precedents Cited

Alderman v. United States, 394 U.S. 165 (1969) – Fourth Amendment standing parallels Title III “aggrieved person” standing.
Franks v. Delaware, 438 U.S. 154 (1978) – Requirements for a hearing when a warrant affidavit contains knowingly false statements.
United States v. Kelley, 140 F.3d 596, 604 n.7 (5th Cir. 1998) – Standing where appellants participated in intercepted calls.
United States v. Oliva, 705 F.3d 390 (9th Cir. 2012) – Standing where warrants targeted the defendant’s communications.
United States v. Akins, 746 F.3d 590 (5th Cir. 2014) – Admissibility of lay opinion testimony from a lead investigator interpreting code words.
United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc) – Definition of conspiracy vs. buyer–seller exception.
United States v. Barry, 978 F.3d 214 (5th Cir. 2020) – What constitutes relevant conduct in drug cases for sentencing.

3.2 Legal Reasoning

3.2.1 Standing under Title III

Title III permits “any aggrieved person” to move to suppress. The court reaffirmed that:

“Aggrieved person” = party to the intercepted communication or the person targeted;
Statutory standing tracks Fourth Amendment principles and does not require pinpointing individual calls;
Affidavits naming both Bourrages as targets, plus repeated admission of participation, established standing.

3.2.2 Timeliness under Rule 12(c)

A suppression motion filed after a court-imposed deadline is untimely unless good cause and prejudice are shown. Here:

The motion was two days late;
Defendants failed to demonstrate that Government disclosures (wiretap files, interview video) were tardy in a way that excused the delay;
No prejudice was shown;
Denial for untimeliness was therefore not an abuse of discretion, and plain‐error review likewise found no reversible error.

3.2.3 Franks Hearing for Wiretap Affidavits

Under Franks, a defendant must make a “substantial preliminary showing” that a warrant affidavit contains deliberate false statements or reckless omissions that are necessary to probable cause. The court concluded:

Defendants identified alleged falsehoods only in the June 2020 affidavit;
Even if those statements were excised, the remaining allegations—controlled buys, intercepted calls showing large‐scale buys and price negotiations, discussions of distribution methods, and clandestine behavior—still supported probable cause;
No plain error in refusing a Franks hearing.

3.2.4 Facial Sufficiency of Wiretap Orders

18 U.S.C. § 2518(4)(d) requires each wiretap order to identify the approving DOJ official. The Bourrage orders expressly named the Deputy Assistant Attorneys General “specially designated by the Attorney General.” There was no facial defect.

3.2.5 Admissibility of Code‐Word Testimony

Agent McCombs, as the lead case agent, listened to “way over a thousand” intercepted calls and surveilled every participant. Under Fed. R. Evid. 701:

Lay‐opinion testimony is allowed when it is based on the witness’s own perceptions, helpful to the jury, and not scientific/technical expert testimony;
Investigative experience plus first‐hand familiarity with these calls justified McCombs’s interpretations (“bird and a half” = 3 pounds, etc.);
No abuse of discretion in admitting his testimony.

3.2.6 Sufficiency of the Evidence

Viewing the record in the light most favorable to the verdict, the court found ample proof of:

An express and tacit agreement between the Bourrage cousins and others (e.g., pricing talks, shared shipments, mutual concerns when an associate was arrested);
The buyer–seller exception did not apply because there was a multi‐party, ongoing distribution scheme;
Separate July 2020 conspiratorial dealings between Donovan and a supplier (Boler) likewise exceeded a single buy–sell transaction;
No coercive or “Allen‐style” instruction had been given to the jury.

3.2.7 Sentencing Guidelines Enhancements

Both defendants received a three‐level “manager/supervisor” enhancement under U.S.S.G. § 3B1.1(b), and Orlando received a two‐level firearms enhancement under § 2D1.1(b)(1). The court held:

“Manager or supervisor” can include exercising control over a conspiracy’s property or assets, not just supervising people (Delgado (en banc), note 2);
Record evidence showed both cousins negotiated drug prices, coordinated large‐scale buys, and disbursed proceeds—enough to avoid clear error;
Orlando’s September 2020 arrest with a 9 mm firearm and a large marijuana shipment was “relevant conduct” to the ongoing May–July conspiracy, given the temporal proximity (4 months) and the continuity of drug trafficking activity;
No sentencing error.

3.3 Potential Impact on Future Cases

United States v. Bourrage clarifies and solidifies several wiretap and conspiracy doctrines:

Title III Standing: Targets and participants need not tie their standing to particular intercepted calls; naming as a target and admitting participation suffices.
Franks in Wiretaps: Franks challenges in wiretap contexts demand “necessary to probable cause” showings; courts will excise alleged misstatements and test sufficiency under the “totality of the circumstances.”
Timeliness of Suppression Motions: Courts will strictly enforce Rule 12(c) deadlines absent clear good cause and prejudice.
Lay Opinion on Drug Slang: Lead agents with extensive first‐hand exposure may testify to code‐word meaning without expert designation.
Conspiracy vs. Buyer–Seller: A sustained, multi‐actor, profit‐sharing distribution scheme surpasses the single buy–sell exception.
Relevant Conduct for Sentencing: Drug activities within months of the charged conspiracy are likely to be deemed relevant conduct, even if involving different substances or locations.

4. Complex Concepts Simplified

“Aggrieved Person” Standing: To contest a wiretap, you just must be one of the people tapped or the person investigators wanted to tap. You don’t have to prove which exact phone call was yours.
Franks Hearing: If you say the government lied or left out big stuff in a search/order affidavit, you get a hearing—but only if removing the lies would wipe out probable cause.
Buyer–Seller Exception: Just buying drugs once from someone doesn’t make you a conspirator. But if you buy and resell multiple times, share money, plan shipments, or band with others, it’s a conspiracy.
Relevant Conduct: For sentencing, any drug deals that are part of the same ongoing business—even if a few months later or in a different place— can count toward your offense level.

5. Conclusion

United States v. Bourrage affirms the convictions and sentences of two methamphetamine conspirators and, in doing so, establishes important guideposts for federal criminal practice:

Defendants need only show they were the targets or participants in tapped communications to challenge wiretaps.
Franks hearings remain tightly cabined: courts will excise alleged misstatements and re-test for probable cause.
Suppression motions must be filed on time unless extraordinary good cause and prejudice are proven.
Lead agents may offer lay interpretations of criminal slang if based on substantial first-hand investigatory involvement.
Ongoing multi-actor drug schemes will not survive under the buyer–seller exception.

Together, these holdings will shape how courts handle wiretap challenges, lay testimony, and conspiracy‐sentencing issues in future cases.