United States v. James L. Johnson ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-10138 ELEVENTH CIRCUIT
JUNE 16, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00030-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES L. JOHNSON,
GERALD D. DANDRIDGE, JR.,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(June 16, 2008)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
This appeal involves two co-defendants, Gerald Dandridge and James
Larceilus Johnson, who were tried and convicted together. Dandridge appeals
from his convictions for conspiracy to possess with intent to distribute cocaine and
marijuana, in violation of 21 U.S.C. § 846; passing counterfeit Federal Reserve
notes, in violation of 18 U.S.C. § 472; possession of a firearm by a convicted felon,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c); and
possession of a firearm in furtherance of a drug-trafficking offense, in violation of
18 U.S.C. § 924(c). On appeal, Dandridge contends that the district court erred in:
(1) denying his motion to suppress evidence obtained from a wiretap; (2) denying
his motion to suppress evidence obtained pursuant to a search of his residence; and
(3) permitting Dandridge’s counsel to withdraw from representation prior to trial.
Johnson, in turn, appeals from his 517-month total sentence for conspiracy
to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; passing
counterfeit Federal Reserve notes, in violation of 18 U.S.C. § 472; and possession
of a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C.
§ 924(c). Johnson argues that the district court erred in: (1) imposing a 30-year
mandatory minimum sentence, pursuant to § 924(c)(1)(B)(ii), in violation of the
Eighth Amendment’s prohibition against cruel and unusual punishment; (2)
imposing an unreasonable sentence; and (3) imposing an aggravating-role
sentencing enhancement.
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After thorough review of the record and the arguments on appeal, we affirm.
I. Dandridge’s Appeal
We review the district court’s factual findings on a motion to suppress for
clear error, and its application of law to those facts de novo. United States v.
Garcia-Jaimes, 484 F.3d 1311, 1320 (11th Cir. 2007), pet. for cert. filed, No. 06-
11863 (U.S. June 11, 2007). We review de novo whether an affidavit established
probable cause for a search warrant, “tak[ing] care both to review findings of
historical fact only for clear error and to give due weight to inferences drawn from
those facts by resident judges and local law enforcement officers.” United States v.
Jiminez, 224 F.3d 1243, 1248 (11th Cir. 2000). We review the trial court’s refusal
to hear the defendant through his chosen counsel for abuse of discretion. See
United States v. Dinitz, 538 F.2d 1214, 1219-1220 (5th Cir. 1976).1
First, we reject Dandridge’s claim that evidence obtained from a court-
authorized wiretap of his electronic communications should have been suppressed.
In making this determination, “[a]s a general rule, federal law governs the
admissibility of tape recordings in federal criminal cases, and complaints that the
evidence was obtained in violation of state law are of no effect.” United States v.
Glinton, 154 F.3d 1245, 1252 (11th Cir. 1998) (internal quotations omitted).
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We have adopted as binding precedent all Fifth Circuit decisions handed down prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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However, “federal courts must defer to state law on the question of the validity of
wiretap orders obtained by state law enforcement officers in state courts.” Id. at
1252-53 (internal quotations omitted). Because the wiretap application was made
by the State Attorney and approved by a Florida circuit court judge, Florida state
law governs the admissibility of the wiretap evidence in this case.
Florida law requires that an application for an order authorizing or
approving the interception of a wire, oral, or electronic communication include:
“[a] full and complete statement of the facts concerning all previous applications
known to the individual authorizing and making the application, made to any judge
for authorization to intercept, or for approval for interceptions of, wire, oral, or
electronic communications involving any of the same persons, facilities, or places
specified in the application, and the action taken by the judge on each such
application.” Fla. Stat. § 934.09(1)(e). We have held that the requirements of
§ 934.09 are met where the affiant “expressly and explicitly states when and where
the applications had been filed and states precisely what action had been taken on
the applications by the appropriate judge.” United States v. Brown, 872 F.2d 385,
389 (11th Cir. 1989). Because the instant affidavit stated when and where the prior
application was filed, and that an order was entered by the judge, it was sufficient
to comply with § 934.09(1)(e).
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Florida law also requires an application for an order authorizing the
interception of wire, oral, or electronic communications to make a showing of
necessity by including “[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.” Fla. Stat. § 934.09(1)(c);
see Shaktman v. State, 529 So.2d 711, 722 (Fla. App. 1988). The law enforcement
agency need not show that it exhausted all other possible investigative techniques
before seeking wiretap authorization, “[n]or must every other conceivable method
of investigation be unsuccessfully attempted before electronic surveillance will be
authorized.” Shaktman, 529 So.2d at 722. Rather, the necessity requirement is
satisfied “if wiretapping appears to be the most reasonable investigative technique
under the circumstances to secure other and conclusive evidence of criminal
involvement[.]” Covello v. State, 462 So.2d 1206, 1207 (Fla. App. 1985).
Here, the affidavit contained a full and detailed statement of investigative
procedures that had been tried and why they were ineffective, and a statement of
the impracticality or futility of other investigative methods, including interviewing
members of the organization, using undercover agents, and/or attempting to
develop new confidential informants. Because these statements constituted a
sufficient factual predicate on which the magistrate judge properly could have
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concluded that normal investigative procedures were not reasonably likely to
succeed, the affidavit satisfied the necessity requirement of § 934.09(1)(c).
Florida law further requires that an order authorizing the interception of any
wire or oral communication specify the type of communication sought to be
intercepted and a statement of the particular offense to which it relates. Fla. Stat.
§ 934.09(4)(c). The authorization of wiretaps is limited to investigations of certain
offenses, including “any violation of chapter 893 [the Florida Comprehensive Drug
Prevention and Control Act]. . . any violation of chapter 896 [the Florida Money
Laundering Act]. . . or any conspiracy or solicitation to commit any violation of the
laws of this state relating to the crimes specifically enumerated in this paragraph.”
Fla. Stat. § 934.07(1)(a). The order at issue merely authorized interception of
communications concerning conspiracies to commit violations of Florida’s drug
and money laundering laws and did not impermissibly authorize the gathering of
evidence relating to any and all offenses for which a conspiracy may be entered
into. Accordingly, the order satisfied the statutory requirements of particularity and
was not overbroad. In short, the district court did not err in denying Dandridge’s
motion to suppress on these grounds.
We are likewise unpersuaded by Dandridge’s contention that evidence
seized during the search of his residence should have been suppressed. Pursuant to
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the Fourth Amendment, a search warrant must describe with particularity the place
to be searched, and the persons or things to be seized, and therefore, a warrant that
does not sufficiently particularize the place to be searched is unconstitutionally
overbroad. United States v. Travers, 233 F.3d 1327, 1329 (11th Cir. 2000). An
erroneous description of the place to be searched, however, does not necessarily
render a warrant invalid. United States v. Weinstein, 762 F.2d 1522, 1532 (11th
Cir. 1985). Rather, “[t]he [F]ourth [A]mendment requires merely that the search
warrant describe the premises in such a way that the searching officer may with
reasonable effort ascertain and identify the place intended.” Id. (internal quotation
omitted).
The Fourth Amendment also requires that police officers executing a search
warrant must knock on the door and announce their identity and purpose before
forcibly entering the dwelling. United States v. Segura-Baltazar, 448 F.3d 1281,
1289 (11th Cir. 2006). This requirement has been codified at 18 U.S.C. § 3109,
which provides that, when executing a search warrant, “[t]he officer may break
open any outer or inner door or window of a house, or any part of a house, or
anything therein . . . if, after notice of his authority and purpose, he is refused
admittance or when necessary to liberate himself or a person aiding him in the
execution of a warrant.” 18 U.S.C. § 3109. We have held that, where a door is not
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fully opened by an occupant, “the force used by the agents to gain admittance
invoke[s] [section] 3109.” United States v. Tolliver, 665 F.2d 1005, 1008 (11th
Cir. 1982). Failure to comply with the knock-and-announce rule is excused,
however, where “police . . . have a reasonable suspicion that knocking and
announcing their presence . . . would be dangerous or futile, or. . . would inhibit the
effective investigation of the crime by, for example, allowing the destruction of
evidence.” Segura-Baltazar, 448 F.3d at 1289 (internal quotations omitted).
Here, the warrant was supported by probable cause derived from the wiretap,
and described Dandridge’s residence with particularity, because even if it failed to
describe the guesthouse, the warrant authorized officers to search “all outbuildings
and vehicles located on the curtilage,” which necessarily included the guesthouse.
In addition, the officers complied with the knock-and-announce rule by
announcing their identity and purpose, and knocking on the front door, which
already was slightly ajar, before entering the residence. In any event, any alleged
failure of the agents to wait for a response after they knocked and announced their
presence was justified since the officers had reason to believe that the house
contained a significant cache of firearms. Accordingly, the district court did not
err in denying Dandridge’s motion to suppress the fruits of the search.
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Next, we find no merit to Dandridge’s argument that he was entitled to, but
never received, notice of his counsel’s withdrawal and the opportunity to have the
district court determine at an evidentiary hearing whether his chosen counsel
should be disqualified based on an alleged conflict of interest. We have held that
an attorney’s actual or potential conflict of interest overcomes the presumption in
favor of a defendant’s counsel of choice and warrants disqualification. United
States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994); see United States v. Almeida,
341 F.3d 1318, 1323 (11th Cir. 2003) (holding that “the Sixth Amendment right to
have the effective assistance of counsel encompasses the right to have counsel
untainted by conflicts of interest”). Although a client may knowingly, intelligently,
and voluntarily waive his right to conflict-free representation, the court may refuse
to accept the waiver where necessary to ensure the adequacy of the defendant’s
representation, to protect the integrity of the court, and to preserve the trial judge’s
interest to be free from future attacks over the adequacy of the waiver and the
fairness of the trial. Ross, 33 F.3d at 1524 (citation omitted).
Because the record reflects that the district court was confronted with
information that Dandridge’s counsel was involved in Dandridge’s illegal
activities, and also represented another defendant, whose interests were at least
potentially adverse to Dandridge’s, counsel’s representation of Dandridge gave rise
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to at least two potential conflicts of interest. The fact that Dandridge was willing
to, or did, waive these conflicts was immaterial, in light of the district court’s
greater interest in protecting the integrity of court and ensuring the adequacy of
representation. See id.Moreover, Dandridge’s counsel voluntarily withdrew from representation
after informing the court that he had discussed the matter with Dandridge and
determined that withdrawal was in Dandridge’s best interest. In such
circumstances, where the conflict of interest issue was mooted by the counsel’s
voluntary withdrawal, Dandridge was not entitled to an evidentiary hearing to
examine whether a conflict of interest existed. See Byrne v. Nezhat, 261 F.3d
1075, 1091 (11th Cir. 2001) (noting that defendants’ motion to revoke opposing
counsel’s pro hac vice status was mooted by opposing counsel’s withdrawal from
the case). As for Dandridge’s argument that he was entitled to prior notice of his
counsel’s withdrawal under Local Rule 2.03(b), we will not address this argument
since Dandridge did not assert it in his initial brief. See United States v. Evans, 473
F.3d 1115, 1120 (11th Cir. 2006), cert. denied, 128 S.Ct. 44 (2007).
Finally, the record reflects that, upon granting the motion by Dandridge’s
counsel, the district court took measures to ensure that Dandridge had ample time
to secure alternate private counsel, and, if he was unable to secure alternate private
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counsel, qualified counsel would be appointed to represent him. In fact, the court
subsequently determined that Dandridge was entitled to the appointment of counsel
under the Criminal Justice Act, and appointed counsel for Dandridge. Several
months later, after Dandridge expressed dissatisfaction with the appointed counsel,
Dandridge was appointed new counsel again. That counsel represented Dandridge
through the trial. For these reasons, it was not an abuse of discretion for the court
to grant the motion to withdraw filed by Dandridge’s original counsel. See Dinitz,
538 F.2d at 1222 (holding that there was no abuse of discretion where the
defendant had ample opportunity to secure another attorney).
II. Johnson’s Appeal
We review constitutional challenges to a sentence de novo. United States v.
Campbell, 491 F.3d 1306, 1314 (11th Cir. 2007). We review the ultimate sentence
imposed by a district court for “reasonableness,” which “merely asks whether the
trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th
Cir. 2008) (quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). “[A]
district court’s determination of a defendant’s role in the offense is a finding of fact
to be reviewed only for clear error.” United States v. De Varon, 175 F.3d 930, 937
(11th Cir. 1999) (en banc).
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There is no merit to Johnson’s Eighth Amendment argument. “[I]n
non-capital cases, the Eighth Amendment encompasses, at most, only a narrow
proportionality principle.” United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.
2005) (internal quotations omitted). In assessing an alleged Eighth Amendment
violation, we must determine if the sentence imposed was grossly disproportionate
to the offense committed and, if it was, we “must then consider the sentences
imposed on others convicted in the same jurisdiction and the sentences imposed for
commission of the same crime in other jurisdictions.” Id. at 1324 (internal
quotations omitted). Because we accord substantial deference to Congress, which
has “broad authority to determine the types and limits of punishments for crimes, .
. . successful challenges to the proportionality of sentences are exceedingly rare.”
Id. at 1323 (internal quotations, alteration and emphasis omitted).
We have held that “a sentence which is not otherwise cruel and unusual does
not become so simply because it is mandatory.” Id. at 1324 (internal quotations and
alteration omitted). We consistently have upheld the imposition of mandatory
minimum sentences under a number of statutes. See United States v. Reynolds, 215
F.3d 1210, 1214 (11th Cir. 2000); United States v. Willis, 956 F.2d 248, 251 (11th
Cir. 1992); United States v. Jones, 933 F.2d 1541, 1548 (11th Cir. 1991).
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Given the serious and dangerous nature of possessing a machine gun in
furtherance of drug-trafficking activities, the 360-month statutory minimum
sentence that Johnson received under § 924(c) was not grossly disproportionate to
the offense. Johnson’s sentence therefore did not violate the Eighth Amendment.
We further conclude that the district court’s imposition of Johnson’s
mandatory minimum sentence was not unreasonable. While “the district court
must consider [the 18 U.S.C. § 3553(a)] factors to determine a reasonable
sentence,” it lacks discretion to grant relief from a mandatory minimum sentence.
See United States v. Brehm, 442 F.3d 1291, 1299-1300 (11th Cir. 2006); United
States v. Simpson, 228 F.3d 1294, 1303 (11th Cir. 2000) (“[t]he district court ha[s]
no discretion to depart downward from the relevant statutory mandatory minimum
sentences”). Because § 924(c)(1)(B)(ii) requires that a defendant who is convicted
of possessing a machine gun in furtherance of a drug-trafficking crime be
sentenced to a term of imprisonment of not less than 30 years, the district court had
no discretion to impose a lesser sentence.
Lastly, the district court did not clearly err in applying an aggravating-role
enhancement under U.S.S.G. § 3B1.1. This Guideline provides for a three-level
increase “[i]f the defendant was a manager or supervisor (but not an organizer or
leader) and the criminal activity involved five or more participants or was
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otherwise extensive.” U.S.S.G. § 3B1.1(b). In order to qualify for a supervisory-
role enhancement under this section, the defendant need only manage or supervise
one other participant. U.S.S.G. § 3B1.1 cmt. n.2. We have held that “the
management enhancement is appropriate for a defendant who arranges drug
transactions, negotiates sales with others, and hires others to work for the
conspiracy.” United States v. Matthews, 168 F.3d 1234, 1249 (11th Cir. 1999); see
United States v. Howard, 923 F.2d 1500, 1503 (11th Cir. 1991) (upholding a three-
level increase under § 3B1.1(b) where the defendant served as a source of credit by
fronting cocaine to a co-conspirator, and therefore maintained at least constructive
control over the co-conspirator).
Although Johnson argues that he was merely a “mule” for Dandridge, the
record contains testimony of individuals attesting that they sold cocaine for, and
reported directly to, Johnson; that Johnson eventually took over Dandridge’s
cocaine distribution business; and that Johnson was Dandridge’s “right hand man.”
Moreover, the PSI determined that Johnson was the “manager” of the drug
organization. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005)
(facts contained in the PSI to which a defendant fails to object are deemed to have
been admitted). Because the evidence demonstrated that Johnson asserted control
or influence over at least one other person during the course of the conspiracy, the
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district court did not clearly err in finding that he was subject to a three-level
aggravating-role enhancement under § 3B1.1.
Accordingly, we affirm Dandridge’s conviction and Johnson’s sentence.
AFFIRMED.
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