United States v. Frank Pierre , 435 F. App'x 905 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12720 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 28, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cr-14007-KMM-7
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
FRANK PIERRE,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 28, 2011)
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Frank Pierre appeals his convictions and his total sentence of life
imprisonment after being found guilty of conspiring to possess with intent to
distribute 5 kilograms or more of cocaine (Count 1), and possessing with intent to
distribute 500 grams or more of cocaine (Count 5), in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Pierre was indicted along with several other co-
conspirators, including Quentin Dixon and Jean Claudy Polanco. Pierre raises
several issues on appeal which we address in turn. After reviewing the record and
briefs, we affirm Pierre’s conviction and sentence.
I.
Pierre first asserts the Florida state court judge who issued the order to
wiretap Pierre’s cell phone lacked authority to do so because Pierre resided
outside the judge’s territorial jurisdiction.1 Pierre further contends the issuance of
the state and federal wiretap orders were improper because the police had other
methods of investigation available to them. Consequently, Pierre claims all
evidence gathered as a result of the wiretaps should have been suppressed.2
1
The issuing judge sat in St. Lucie County, which is part of the Nineteenth Judicial Circuit.
Pierre (and the phone) resided in Broward County, which is part of the Seventeenth Judicial Circuit.
2
In reviewing a denial of a motion to suppress evidence, we review the district court’s
“findings of fact for clear error and its application of law to those facts de novo.” United States v.
Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). We construe all factual findings in the light most
favorable to the prevailing party—in this case, the Government. Id. at 1236.
2
A. Jurisdiction of Issuing Judge
Under Florida law, upon a proper warrant application, a judge may enter an
order authorizing the “interception of wire, oral, or electronic communications
within the territorial jurisdiction of the court in which the judge is sitting, and
outside such jurisdiction but within the State of Florida in the case of a mobile
interception device authorized by the judge within such jurisdiction.” Fla. Stat.
§ 934.09(3). The Florida Fifth DCA has previously held that “the ‘interception’ of
a cellular call occurs both at the location of the tapped telephone and at the site
where law enforcement authorities hear and record the call.” See State v.
McCormick, 719 So. 2d 1220, 1222 (Fla. 5th DCA 1998).3 In McCormick, the
court concluded that a law enforcement officer had authority to seek and execute a
wiretap order where the listening post was located within the officer’s jurisdiction
despite the fact the telephone’s subscriber resided outside the officer’s
jurisdiction. Id. at 1221, 1223.
Here, despite the fact that Pierre and the phone resided in Broward County,
outside the issuing judge’s jurisdiction, the listening post was located at all times
3
Pierre argues McCormick conflicts with a Florida Supreme Court case, State v. Mozo, 655
So. 2d 1115 (Fla. 1995), which held that an actual interception of a communication occurs where
the communication originates. McCormick distinguished Mozo, specifically noting privacy rights
(and not jurisdiction) were at issue in that case. See McCormick, 719 So. 2d at 1222 (“Mozo should
be limited to its facts; the court was discussing the right to privacy, rather than the issue of
jurisdiction.”).
3
within St. Lucie County. Accordingly, under McCormick, the state judge had
jurisdiction to issue the wiretap warrant for Pierre’s cell phone. See Fla. Stat.
§ 934.09(3); McCormick, 719 So. 2d at 1222.
B. Wiretap Warrant Application
Under the federal and Florida wiretap statutes, an application for a wiretap
warrant must contain, among other things, 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); Fla. Stat. § 934.09(1)(c).4 Similarly, a judge may
authorize the wiretap if “normal investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed if tried or to be too
dangerous.” 18 U.S.C. § 2518(3)(c); Fla. Stat. § 934.09(3)(c). However, “the
statute does not require an initial exhaustion of all conceivable investigatory
techniques,” but was simply intended “to inform the issuing judge of the
difficulties involved in the use of conventional techniques.” United States v.
Alonso, 740 F.2d 862, 868 (11th Cir. 1984) (quotation omitted); see also Hudson
v. State, 368 So. 2d 899, 902-03 (Fla. 3d DCA1979) (stating the Florida wiretap
4
The relevant provisions of the federal and Florida wiretap statutes are essentially identical.
Compare Fla. Stat. § 934.09, with 18 U.S.C. § 2518.
4
statute does not require “a comprehensive exhaustion of all possible techniques”).
Thus, the affidavit accompanying the application does not need to recite “every
possible line of inquiry” in the investigation, but need only explain “the
prospective or retroactive failure of several investigative techniques that
reasonably suggest themselves.” Alonso, 740 F.2d at 868 (quotation omitted).
Here, both the state and federal wiretap warrant applications described in
detail how multiple conventional investigative techniques, including surveillance,
subpoenas, interviews, undercover police officers, and trash pulls, had either been
used or would be unhelpful in the future. Because the factual content of the
applications is not in dispute, it appears the officers sufficiently exhausted non-
wiretap methods of investigation, allowing them to obtain wiretap warrants under
the state and federal wiretap statutes. See Alonso, 740 F.2d at 868; Hudson, 368
So. 2d at 902-03. Accordingly, the district court did not err in denying Pierre’s
motion to suppress evidence gathered as a result of the wiretaps.
II.
Pierre next contends the evidence at trial was insufficient to establish his
guilt for Count I. Specifically, Pierre contends the evidence at trial did not
establish a conspiracy between him and Dixon, or between him and Polanco.
5
Rather, the evidence merely evinced a buyer-seller relationship. Pierre also argues
the evidence established multiple conspiracies rather than a single one.5
We review de novo the sufficiency of the evidence to support a criminal
conviction. United States v. Frazier, 605 F.3d 1271, 1278 (11th Cir. 2010). In
making this determination, “we view the evidence in the light most favorable to
the government, with all reasonable inferences and credibility choices made in the
government’s favor.” Id. (quotation omitted).
“To support a conviction of conspiracy, the government must prove [1] that
an agreement existed between two or more persons to commit a crime and [2] that
the defendants knowingly and voluntarily joined or participated in the
conspiracy.” United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005)
(quotation omitted). The existence of a conspiracy “may be proven by
circumstantial evidence, including inferences from the conduct of the alleged
5
Pierre also appears to challenge the sufficiency of the evidence on Count 5. However, Pierre
acknowledges in his brief that he possessed (with intent to distribute) more than 500 grams of
cocaine, and trial testimony clearly established that fact. To the extent Pierre argues the jury must
have found the total amount of cocaine attributed to him at sentencing, we have held that drug
quantity need only be proven by a preponderance of the evidence at sentencing. United States v.
Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). Pierre does not argue the Government failed to
prove the drug amounts by a preponderance of the evidence, and, thus, he has abandoned any claims
to that effect. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2004) (holding that
issues on appeal are deemed abandoned if not “fairly and plainly presented” to this Court).
6
participants or from circumstantial evidence of a scheme. ” Id. (quotation
omitted).
A. Buyer-Seller Relationship
A sale and purchase of drugs does not establish a conspiracy “[w]here the
buyer’s purpose is merely to buy and the seller’s purpose is merely to sell, and no
prior or contemporaneous understanding exists between the two beyond the sales
agreement.” United States v. Mercer, 165 F.3d 1331, 1335 (11th Cir. 1999)
(quotation omitted). However, a conspiracy “may be inferred when the evidence
shows a continuing relationship that results in the repeated transfer of illegal drugs
to the purchaser.” Id. We have previously concluded that a conspiracy existed
between a seller and buyer where the buyer bought crack cocaine from the seller
on several occasions, where the seller sometimes fronted the cocaine to the buyer,
where both individuals arranged for a supplier to bring three kilograms of cocaine
to them, and where they divided that cocaine among themselves. United States v.
Beasley, 2 F.3d 1551, 1560-61 (11th Cir. 1993).
Regardless of whether a conspiracy was established between Pierre, Dixon
and the other small-time dealers, the Government presented sufficient evidence of
a conspiracy between Pierre and Polanco. According to Polanco’s testimony,
Pierre bought increasingly large amounts of cocaine from Polanco, who fronted
7
the cocaine to Pierre on many, if not all, occasions. Furthermore, Polanco would
go to some lengths to obtain the cocaine for Pierre. A reasonable jury could infer
Polanco was Pierre’s sole supplier, Pierre was Polanco’s main purchaser, and they
worked together to propagate their buying and selling operation. Evidence of such
a strong relationship between the two was sufficient to establish a conspiracy to
possess with the intent to distribute drugs. See Beasley, 2 F.3d at 1560-61; see
also United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009) (“[A]s is
well-established in this Circuit, where there are repeated transactions buying and
selling large quantities of illegal drugs, that is sufficient evidence that the
participants were involved in a conspiracy to distribute those drugs in the
market.”).
B. Multiple Conspiracies
We will not reverse a conviction “because a single conspiracy is charged in
the indictment while multiple conspiracies may have been revealed at trial unless
the variance is [1] material and [2] substantially prejudiced the defendant[].”
Brown, 587 F.3d at 1092 (quotation omitted). In deciding whether any variance
was material, “we view the evidence in a light most favorable to the government
and inquire whether a reasonable jury could have determined beyond a reasonable
8
doubt that a single conspiracy existed.” Id. To demonstrate substantial prejudice,
a defendant must establish one of two prongs:
1) that the proof at trial differed so greatly from the charges that [he]
was unfairly surprised and was unable to prepare an adequate
defense; or 2) that there are so many defendants and separate
conspiracies before the jury that there is a substantial likelihood that
the jury transferred proof of one conspiracy to a defendant involved
in another.
United States v. Richardson, 532 F.3d 1279, 1286-87 (11th Cir. 2008) (quotation
omitted).
“A ‘hub-and-spoke’ conspiracy occurs where “a central core of conspirators
recruits separate groups of co-conspirators to carry out the various functions of the
illegal enterprise.” United States v. Huff, 609 F.3d 1240, 1243-44 (11th Cir. 2010)
(quotation omitted). However, “where the ‘spokes’ of a conspiracy have no
knowledge of or connection with any other, dealing independently with the hub
conspirator, there is not a single conspiracy, but rather as many conspiracies as
there are spokes.” Id. at 1244 (quotation omitted).
Here, Count 1 of the indictment charged a single conspiracy, but the
evidence at trial showed the existence of at least two conspiratorial groups: one
including Dixon and other small-time drug dealers, and one including Polanco and
the higher-level suppliers. Pierre acted as the “hub” between the two groups,
buying the drugs from the suppliers and selling them to the distributors. Because
9
in this “hub-and-spoke” conspiracy, nothing, aside from Pierre, appears to have
connected the Polanco “spoke” with the Dixon spoke, at least two conspiracies
existed rather than a single one. See Huff, 609 F.3d at 1243-44.
This variance between the indictment and proof at trial does not warrant a
reversal because Pierre failed to show substantial prejudice. Regarding the first
prong of substantial prejudice, nothing suggests, and Pierre does not claim, that he
was surprised or unable to prepare an adequate defense. The second prong would
not apply here because Pierre was the hub of the conspiracy and the only
defendant in the trial. See Richardson, 532 F.3d at 1287 (holding that the second
prong of substantial prejudice was irrelevant because the defendant “was the hub
of the conspiracy and was tried alone”).
III.
Lastly, Pierre raises various claims regarding his sentence. He first asserts
that his post-arrest incriminating statements should have been excluded from his
PSI because they were obtained in violation of Miranda6 and their reliability was
not established. Pierre further contends the district court erred in applying a two-
level firearm increase under U.S.S.G. § 2D1.1(b)(1) because the Government
presented no evidence at trial that he possessed a firearm. Pierre next claims the
6
Miranda v. Arizona, 384 U.S. 436 (1966).
10
court erred in applying a four-level role enhancement under U.S.S.G § 3B1.1(a)
because the Government never established that he was a leader or organizer as
defined by the Guidelines. Finally, Pierre contends the district court erred when it
failed to consider his motion for a variance, in which he argued that imposing a
life sentence would violate the Eighth Amendment’s prohibition on cruel and
unusual punishment.7
We review a district court’s consideration of inadmissible evidence in
sentencing de novo. U.S. v. Nichols, 438 F.3d 437, 439 (11th Cir. 2006). Further,
we review the district court’s factual findings related to the imposition of
sentencing enhancements for clear error. United States v. Robertson, 493 F.3d
1322, 1329 (11th Cir. 2007). “This standard requires us to affirm a district court’s
findings of fact unless ‘the record lacks substantial evidence’ to support that
determination.” Drew v. Dept. of Corrections, 297 F.3d 1278, 1283 (11th Cir.
2002) (citation omitted). Lastly, “[w]e review for reasonableness the ultimate
sentence a district court imposes on a defendant.” See U.S. v. Willis, 560 F.3d
7Pierre also appears to challenge the district court’s consideration of paragraphs 18 and 25
of the PSI on the sole ground that acquitted conduct may not be considered at sentencing. We have
previously held that acquitted conduct may be considered at sentencing, provided the conduct is
proved by a preponderance of the evidence. See United States v. Faust, 456 F.3d 1342, 1348 (11th
Cir. 2006). There was adequate evidence presented at Pierre’s trial to meet this standard.
Accordingly, the district court did not err in considering the acquitted conduct.
11
1246, 1250-51 (11th Cir. 2009) (denying a defendant’s motion for a Guideline
variance on reasonableness grounds).
A. Post-Arrest Statements
“A sentencing court may consider any information, (including hearsay),
regardless of its admissibility at trial, in determining whether factors exist that
would enhance a defendant’s sentence, provided that the evidence has sufficient
indicia of reliability, the court makes explicit findings of fact as to credibility, and
the defendant has an opportunity to rebut the evidence.” United States v. Baker,
432 F.3d 1189, 1253 (11th Cir. 2005). We have held that the exclusionary rule did
not apply to sentencing proceedings and evidence seized in violation of the Fourth
Amendment could be introduced at sentencing as long as it was reliable. United
States v. Lynch, 934 F.2d 1226, 1235-37 (11th Cir. 1991).
The district court did not err in considering Pierre’s post-arrest statements at
sentencing because there was no evidence that the statements were involuntary or
unreliable. See Lynch, 934 F.2d at 1235-37. Pierre’s statements showed only that
he bought large quantities of cocaine from Polanco and sold some cocaine to
Dixon and others. Because all of these actions were proved at trial, the inclusion
of Pierre’s own corroborating admissions did not affect the district court’s
sentence.
12
B. The Two-Level Firearm Enhancement
“When a defendant objects to a factual finding that is used in calculating his
guideline sentence . . . the government bears the burden of establishing the
disputed fact by a preponderance of the evidence.” Id. Section 2D1.1(b)(1) of the
Guidelines provides for a two-level increase if “a dangerous weapon (including a
firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). “To justify a firearms
enhancement, the government must either establish by a preponderance of the
evidence that the firearm was present at the site of the charged conduct or prove
that the defendant possessed a firearm during conduct associated with the offense
of conviction.” United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006).
At the sentencing hearing, Agent Tammy Roane of the Florida Department
of Law Enforcement testified that Polanco told her that he saw Pierre with a gun
during two drug transactions. Because the district court had broad discretion to
believe Roane and Polanco, it did not clearly err in finding that Pierre qualified for
the two-level firearm increase. See Stallings, 463 F.3d at 1220; United States v.
Gregg, 179 F.3d 1312, 1316 (11th Cir. 1999) (“We accord great deference to the
district court’s credibility determinations.”).
13
C. The Four-Level Role Adjustment
Section 3B1.1 of the Guidelines provides a four-level enhancement “[i]f the
defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). The
Guidelines provide a three-level enhancement if “the defendant was a manager or
supervisor (but not an organizer or leader).” Id. § 3B1.1(b).8
The “mere status of a middleman or a distributor does not support
enhancement under Section 3B1.1 for being a supervisor, manager, or leader.
Section 3B1.1 requires the exercise of some authority in the organization, the
exertion of some degree of control, influence, or leadership.” United States v.
Yates, 990 F.2d 1179, 1182-83 (11th Cir. 1993) (quoting United States v. Brown,
944 F.2d 1377, 1385 (7th Cir. 1991)). We have upheld a three-level increase
under U.S.S.G. § 3B1.1(b) where a defendant “fronted” cocaine to a codefendant,
then accompanied the codefendant to a location where the codefendant sold the
cocaine to another individual, and, when the sale was completed, the codefendant
turned the money over to the defendant in payment for the cocaine. See United
States v. Howard, 923 F.2d 1500, 1502-03 (11th Cir. 1991). We have also held
8
Although the court applied a four-level role enhancement, we note that Pierre’s offense level
and Guideline range would remain the same regardless of whether the court applied a four-level or
a three-level enhancement. His base offense level of 38, coupled with a 2-level and a 3-level increase
would still yield a total offense level of 43 and a Guideline range of life.
14
that “evidence of fronting, without more, is insufficient to satisfy the management
requirement.” United States v. Alred, 144 F.3d 1405, 1422 (11th Cir. 1998)
(quotation omitted).
As a preliminary matter, there is no dispute the criminal activity in this case
involved five or more participants or was otherwise extensive. The evidence
presented at trial and sentencing established more than mere fronting of cocaine
between Pierre, Dixon, and the lower-level distributors. Based on the amount of
drugs Pierre purchased from Polanco, and Pierre’s communication with numerous
individuals regarding the drugs, one could infer that Pierre was a major cocaine
supplier in the area and played an influential role in the distribution of this drug.
Accordingly, the district court did not clearly err in finding Pierre played a
leadership role and qualified for a four-level enhancement.9
D. Motion for a Sentencing Variance
Lastly, the district court did not err when it refused to hear Pierre’s untimely
motion for a sentencing variance based on Eighth Amendment grounds. As Pierre
9
Even if the evidence did not support Pierre having an organizational or leadership role in
the conspiracy, the evidence did show he played a managerial or supervisory role warranting a three-
level increase. See Howard, 923 F.2d at 1502-03. Accordingly, any error committed by the district
court in applying a four-level rather than a three-level enhancement was harmless. See United States
v. Mejia-Giovani, 416 F.3d 1323, 1327 (11th Cir. 2005) (stating that a sentencing error is harmless
where “the error did not affect the sentence, or had but very slight effect”).
15
acknowledged in his Brief, the motion “was in essence more of an alloc[u]tion that
[he] ought not be sentenced to life.” The court did, in fact, allow Pierre and his
counsel an opportunity to allocute and argue for a variance, which the court
denied. Furthermore, Pierre’s motion lacked merit as Graham v. Florida does not
apply to adult offenders such as Pierre. See Graham v. Florida, 130 S. Ct. 2011,
2034 (2010) (holding that “[t]he Constitution prohibits the imposition of a life
without parole sentence on a juvenile offender who did not commit homicide.”);
see also Harmelin v. Michigan, 501 U.S. 957, 1002-09 (1991) (plurality opinion)
(finding no Eighth Amendment violation where the defendant was sentenced to a
mandatory term of life imprisonment without the possibility of parole for
possessing more than 650 grams of cocaine). Accordingly, we affirm Pierre’s
convictions and sentence.
AFFIRMED.
16