United States v. Tony James Leflore , 653 F. App'x 703 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11012
Non-Argument Calendar
________________________
D.C. Docket No. 2:13-cr-00287-AKK-CSC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY JAMES LEFLORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(June 28, 2016)
Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Tony Leflore appeals his convictions for conspiracy to possess with intent to
distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846;
unlawful use of a communication facility, in violation of 21 U.S.C. § 843(b),
(d)(1); and possession with intent to distribute cocaine powder and crack cocaine,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). After careful consideration and a
thorough review of the record, we affirm.
I.
A grand jury indicted Leflore on numerous counts arising out of an alleged
drug trafficking ring. The charges against Leflore in the superseding indictment
included one count of conspiracy to distribute powder cocaine, crack cocaine, and
marijuana; 21 counts of knowing and intentional unlawful use of a communication
facility (a cellular telephone) in the commission of the drug offenses; three counts
of possession with the intent to distribute cocaine; and one count of money
laundering.
Before trial, Leflore filed a motion to suppress, raising two arguments. First,
Leflore contended that all evidence seized during a search of his residence should
be suppressed, despite the issuance of a warrant, because the officers entered his
residence on October 17, 2013 at 10:14 p.m., while the warrant reflected that it was
not issued until 10:31 p.m. that night. Second, Leflore urged the court to suppress
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evidence obtained through a court-authorized wiretap, arguing that normal
investigative procedures would have worked as well as a wiretap. 1
The government opposed the motion. It asserted that the warrant, which was
issued along with five others at about the same time to search properties associated
with Leflore and his alleged coconspirators, reflected an incorrect time of issuance.
The government offered as evidence the warrants issued to search two of the
properties, showing the issuing times as 9:21 p.m. and 9:27 p.m. As regards the
wiretap applications, the government contended that the affidavits in support,
which it offered into evidence, contained extensive discussions of alternative
investigation techniques and showed why these alternative measures were
inadequate and thus why the wiretap was necessary.
The magistrate judge held an evidentiary hearing. Regarding the warrant,
the judge considered the testimony of Hubert Douglas Walters, Jr., a Task Force
Officer with the United States Drug Enforcement Administration who was part of a
team assigned to search Leflore’s residence. Walters testified that he and his team
waited until they received confirmation that a warrant had issued before entering
and searching Leflore’s residence. In addition to the two warrants the government
1
Leflore also asserted that statements in the wiretap application were misleading and
deceptive, but he failed to identify specific misleading statements until he filed amended
objections to the magistrate judge’s report and recommendation. Likewise, Leflore did not
challenge the wiretap applications for lack of probable cause until his objections to the report and
recommendation and even then only made a passing reference to this issue. The district court
overruled the objections.
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offered, the magistrate judge also took judicial notice of the warrants for three
other properties, which he found were issued at 9:35 p.m., 9:40 p.m., and 9:45 p.m.
Based on this evidence, the magistrate judge found that the time on the warrant at
issue was “simply a mistake” and that the actual time of issuance was 9:31 p.m.
Doc. 85 at 8. 2 For this reason, the magistrate judge recommended denying the
motion to suppress evidence seized as a result of the search of Leflore’s residence.
As regards the wiretap, the court considered the detailed affidavits attached
to the wiretap applications, which described the techniques that had previously
failed, appeared unlikely to succeed, or were too dangerous to employ. For
example, according to the affidavits, authorities sifting through Leflore’s trash
risked compromising the investigation because Leflore lived on a cul-de-sac in a
neighborhood with houses close together, making it more likely that someone
would observe the search and tell Leflore. The authorities also lacked confidential
sources who could purchase drugs from Leflore. And although undercover officers
were helpful in investigating low-level drug dealers, authorities were unable to
employ these officers to investigate Leflore directly. Nor had pole cameras, air
surveillance, or telephone toll analyses been successful at gaining the information
officers needed. Moreover, the objective of the investigation, according to the
affidavits, went beyond simply capturing Leflore; the authorities wished to topple
2
Citations to “Doc.” refer to docket entries in the district court record in this case.
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the entire organization to stop the flow of cocaine. At the suppression hearing,
Walters confirmed this information and maintained that wiretaps were necessary to
fulfill the goals of the investigation.
The magistrate judge recommended denying this portion of the motion to
suppress as well. The judge found that law enforcement’s goal was to dismantle
the organization and that Walters had adequately explained why the various
alternative techniques of surveillance—searching trash, employing confidential
informants, and installing and monitoring pole cameras, for example—were
insufficient as compared to wiretaps.
The district court adopted the magistrate judge’s recommendations over
Leflore’s objections 3 and denied the motion to suppress.
Trial commenced on September 15, 2014 with testimony lasting five days.
The government presented the testimony of over 20 witnesses, including one of
Leflore’s coconspirators, Leonardo Fuller, and one of Leflore’s buyers, Stanley
Parker. Fuller testified that he sold cocaine and marijuana for Leflore and that he
witnessed Leflore sell cocaine for cash. Fuller also identified Leflore’s voice on a
government wiretap recording and confirmed that Leflore was discussing
marijuana. For his part, Parker testified that he purchased cocaine from Leflore on
3
Leflore filed three sets of objections to the magistrate judge’s recommendation, two
before the district court adopted the recommendation and one after the district court denied
Leflore’s motion to suppress. The district court overruled all of Leflore’s objections.
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numerous occasions for three and half years since 2008, paying over $30,000 for
30 kilograms of the drug. Parker also explained that he purchased from Leflore, in
four or five transactions, a total of about 100 pounds of marijuana from 2008
through 2011. Parker then identified Leflore’s and another coconspirator’s voice
on a wiretap recording and confirmed that Leflore avoided using the word
“cocaine” on the telephone.
Walters also testified for the government. He described intercepted
telephone calls connecting Leflore to the drug operation. Walters identified items
recovered after the search of Leflore’s home and vehicle, including one of the
telephones authorities had wiretapped, about $10,000 in cash found in a storage
closet, $3,100 in cash found in the center console of Leflore’s vehicle, and a key to
another vehicle, which contained 11.5 kilograms of cocaine. On cross-
examination, Leflore’s attorney asked Walters whether Leflore had used the word
cocaine during any of the wiretapped telephone calls. Walters reported that he
never heard the word cocaine on the wiretap. When pressed by Leflore’s counsel
to identify what “conversation [Walters] heard . . . about illicit drug activity,”
Walters responded that on “numerous telephone calls between Mr. Leflore” and a
coconspirator, “both reference[d] money or cocaine as a thing.” Doc. 293 at 189.
Leflore’s attorney lodged no objection to the testimony he elicited.
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After the close of the government’s case, Leflore moved for judgment of
acquittal as to all counts. The court denied Leflore’s motion. Leflore then called
Walters to testify briefly, after which, the defense rested. The jury returned a
verdict of guilty on count 1, conspiracy to possess with intent to distribute cocaine
and marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846; counts 13, 19, and
24, possession of cocaine powder and crack cocaine with intent to distribute in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); and 16 counts of unlawful use of a
communication facility (a cellular telephone), in violation of 21 U.S.C. § 843(b),
(d)(1). The jury rendered a verdict of not guilty on all remaining counts, including
the money laundering count.
Leflore moved for judgment of acquittal and, in the alternative, for a new
trial. The district court denied the motion. The district court sentenced Leflore to
292 months’ imprisonment. This appeal followed.
II.
Leflore raises four arguments on appeal. First, he argues that the district
erred in denying his motion to suppress evidence seized during the search of his
home. We review the denial of a motion to suppress under a mixed standard,
reviewing the district court’s findings of fact for clear error and its application of
the law to those facts de novo, while construing the facts in the light most
favorable to the prevailing party below. United States v. Lewis, 674 F.3d 1298,
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1302-1303 (11th Cir. 2012). A district court’s choice between two permissible
views of the evidence cannot be clear error. See Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 574 (1985). We defer to the district court’s factual
determination “unless it is contrary to the laws of nature, or is so inconsistent or
improbable on its face that no reasonable factfinder could accept it.” United States
v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (internal quotation marks
omitted).
The district court did not err in denying the motion to suppress regarding the
evidence seized during a search of Leflore’s home. The district court found that
the time of issuance noted on the face of the warrant authorizing the search was a
scrivener’s error; the warrant was actually issued at 9:31 p.m., before authorities
searched Leflore’s home. This finding was not clearly erroneous. The sequential
order of the five other warrants presented by the same affiant on the same night for
the same investigation, all of which were issued before the search of the home, and
the testimony that law enforcement did not enter Leflore’s home until after
receiving confirmation at 10:14 p.m. that the warrant had been issued, adequately
support the district court’s factual finding. The search of Leflore’s home,
therefore, was pursuant to a valid warrant, and the evidence seized as a result was
admissible at trial.
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Second, Leflore argues that the district court erred in denying his motion to
suppress evidence obtained as a result of the wiretaps because the wiretap
applications failed to show that normal investigative procedures were insufficient
and that wiretaps were necessary, as required under 18 U.S.C. § 2518(1)(c).
Section 2518(1)(c) requires a wiretap application to contain “a full and complete
statement as to whether or not other investigative procedures have been tried and
failed or why they reasonably appear to be unlikely to succeed if tried or to be too
dangerous.” 18 U.S.C. § 2518(1)(c). “The ‘necessity’ requirement in § 2518
ensures that law enforcement does not use electronic surveillance when less
intrusive methods will suffice.” United States v. Perez, 661 F.3d 568, 581 (11th
Cir. 2011). “Section 2518 does not foreclose electronic surveillance until every
other imaginable method of investigation has been unsuccessfully attempted;
however, it does require the Government to show why alternative measures are
inadequate for this particular investigation.” Id. (internal quotation marks and
citation omitted); accord United States v. Van Horn, 789 F.2d 1492, 1496 (11th
Cir. 1986) (“The affidavit need not, however, show a comprehensive exhaustion of
all possible techniques, but must simply explain the retroactive or prospective
failure of several investigative techniques that reasonably suggest themselves.”).
The district court did not err in concluding that the wiretap applications
sufficiently showed why alternative measures were inadequate for the
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investigation. The affidavits submitted in support of the wiretap applications
contained extensive discussions of alternative investigative techniques, including a
search of Leflore’s trash, undercover drug purchases, and pole cameras. Further,
the affidavits adequately explained why those techniques were too risky or
ineffective. For example, to succeed in not only nabbing Leflore but also toppling
the enterprise, the affidavits showed, and Walters confirmed, that authorities could
not rely on confidential sources or undercover drug purchases. And even if other
techniques may have garnered limited success, “[t]he partial success of alternative
investigative measures . . . does not necessarily render electronic surveillance
unnecessary.” Perez, 661 F.3d at 581. We agree with the district court that the
government satisfied its burden under § 2518 to show the necessity of electronic
surveillance. Accordingly, the district court did not err in denying the motion to
suppress.4
Third, Leflore contends that the district court erred by allowing Walters to
testify that, in wiretapped conversations, Leflore referred to cocaine as a “thing.”
To the extent this constituted error, Leflore invited it, and thus it is not reversible.
4
In his appellant’s brief, Leflore makes a passing reference to two additional arguments.
He first references Franks v. Delaware, 438 U.S. 154 (1978), asserting the general proposition
that deliberately false or misleading statements in a wiretap application constitute grounds for
suppression of evidence, but he fails to argue that the wiretap applications actually contained
misleading statements. He then states without elaboration that the wiretap applications lacked
probable cause. Because Leflore simply makes passing reference to these points without
mounting an argument or citing authority in support, we deem these issues abandoned. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014).
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“In the context of a district court’s decision to admit certain evidence, the accepted
rule is that where the injection of allegedly inadmissible evidence is attributable to
the action of the defense, its introduction does not constitute reversible error.”
United States v. Jernigan, 341 F.3d 1273, 1289 (11th Cir. 2003) (alteration
adopted) (internal quotation marks omitted); accord United States v. Sarras, 575
F.3d 1191, 1216 (11th Cir. 2009) (holding that, because the defense counsel’s
question elicited the response about which counsel complained on appeal, any
error was invited error and thus unreviewable). Leflore’s attorney pressed Walters
to confirm that Leflore avoided using the term “cocaine” on telephone calls.
Walters obliged, but clarified that he understood Leflore’s use of the term “thing”
to refer to cocaine or money. The admission of this defense-elicited testimony
does not constitute reversible error.
Finally, Leflore argues that the evidence was insufficient to support a guilty
verdict on the conspiracy charge, and thus the district court should have granted his
motion for judgment of acquittal. “We review the sufficiency of the evidence de
novo, viewing the evidence in the light most favorable to the government, with all
reasonable inferences and credibility choices made in the government’s favor.”
United States v. Edouard, 485 F.3d 1324, 1349 (11th Cir. 2007) (internal quotation
marks omitted).
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To sustain a conviction for conspiracy to distribute drugs in violation of 21
U.S.C. § 846, “the government must prove that 1) an agreement existed between
two or more people to distribute the drugs; 2) that the defendant at issue knew of
the conspiratorial goal; and 3) that he knowingly joined or participated in the
illegal venture.” United States v. Reeves, 742 F.3d 487, 497 (11th Cir. 2014)
(internal quotation marks omitted). “[P]articipation in a criminal conspiracy need
not be proved by direct evidence; a common purpose or plan may be inferred from
a development and collocation of circumstances.” Id. (internal quotation marks
omitted). “It is also well established in this Circuit that where there are repeated
transactions between participants buying and selling large quantities of illegal
drugs, that may be sufficient to find the participants were involved in a single
conspiracy to distribute those drugs.” Id. Moreover, “the uncorroborated
testimony of a co-conspirator or accomplice is sufficient to prove guilt beyond a
reasonable doubt.” Craig v. Singletary, 127 F.3d 1030, 1044 (11th Cir. 1997)
(collecting cases); accord United States v. Broadwell, 870 F.2d 594, 601 (11th Cir.
1989).
The district court did not err in denying Leflore’s motions for judgment of
acquittal. The testimony and other evidence presented at trial, including wiretap
recordings and the testimony of a coconspirator and a drug purchaser, was
sufficient to support the convictions. See Broadwell, 870 F.2d at 601. Leflore
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argues that Fuller’s and Parker’s testimony was incredible. But it is well-
established that weighing the credibility of a witness is exclusively within the
province of the jury. See United States v. Hernandez, 743 F.3d 812, 815 (11th Cir.
2014). We must “assume that the jury made all credibility choices in support of
the verdict.” United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009).
Only where the testimony is “incredible or insubstantial on its face,”—that is,
where the testimony addressed “facts that [the witness] physically could not have
possibly observed or events that could not have occurred under the laws of
nature”—will we second-guess the jury’s credibility determination. United States
v. LeQuire, 943 F.2d 1554, 1562 (11th Cir. 1991) (internal quotation marks
omitted). Under this standard, Fuller’s and Parker’s testimony was not incredible. 5
Finally, Leflore asserts that an excerpt from the transcript of a sentencing
hearing involving one of the alleged coconspirators—in which the district court
opined that the record in that case failed to support the conclusion that the
defendant conspired with Leflore—shows that the evidence in his case was
insufficient to support the conspiracy conviction. Our review of the sufficiency of
the evidence, however, is limited to “evidence presented at trial.” United States v.
LeCroy, 441 F.3d 914, 924 (11th Cir. 2006); accord United States v. Orrego-
5
We also reject Leflore’s argument that the government’s failure to call as witnesses
other coconspirators—whom he claims may have supported the defense—establishes the
insufficiency of the evidence against him. Leflore has offered no support for this argument, and
we find none.
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Martinez, 575 F.3d 1, 8 (5th Cir. 2009) (“[R]eview of sufficiency challenges is
confined to evidence presented at trial.” (internal quotation marks omitted)). What
the district court thought of evidence in a different case is irrelevant to our
analysis.
For the foregoing reasons, we reject Leflore’s arguments on appeal and
affirm his convictions.
AFFIRMED.
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