United States v. Wilson ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5560
DAVID A. WILSON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5563
DAVID WAYNE ABNER, a/k/a David
Abner,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CR-95-6)
Argued: December 2, 1996
Decided: June 16, 1997
Before RUSSELL, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
No. 95-5560 affirmed in part, reversed in part and remanded, and No.
95-5563 affirmed by published opinion. Judge Russell wrote the opin-
ion, in which Judge Michael and Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Hope Dene Harris, LAW OFFICE OF HOPE DENE
HARRIS, Abingdon, Virginia, for Appellant Abner; Daniel Knowlton
Read, Jr., JESSEE & READ, P.D., Abingdon, Virginia, for Appellant
Wilson. Thomas Ernest Booth, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Robert
P. Crouch, Jr., United States Attorney, Rich A. Mountcastle, Assistant
United States Attorney, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Appellee.
_________________________________________________________________
OPINION
RUSSELL, Circuit Judge:
David Abner and David Wilson appeal their drug trafficking and
firearm convictions on various grounds. We affirm in part, reverse in
part, and remand to the district court for further proceedings consis-
tent with this opinion.
I.
From January 29 through January 31, 1995, Clifton Laughlin, a
confidential informant and personal friend of Wilson, made four con-
trolled purchases of marijuana and firearms from Wilson and one pur-
chase of firearms from Abner. He made the purchases at the direction
of Detective Benton of the Bristol, Virginia, Police Department. Dur-
ing each controlled purchase, Laughlin wore a hidden wire transmit-
ter, which enabled Detective Benton and his partner to monitor and
record every conversation that Laughlin had with Abner and Wilson.
After each transaction, Laughlin immediately turned over the contra-
band to Detective Benton.
The evidence of record shows that on January 29, Wilson sold
Laughlin one ounce of marijuana on credit. Laughlin delivered the
marijuana to Detective Benton, who had expressed interest in investi-
gating Wilson's illegal drug activities because he believed Wilson to
be a major marijuana distributor. On January 30, Detective Benton
2
gave Laughlin bait money to purchase more marijuana. Later that day
Wilson sold Laughlin another ounce of marijuana, and also offered to
sell Laughlin two guns for $300. Each gun had had its serial number
obliterated. Laughlin purchased only the marijuana.
Upon hearing that Wilson also dealt in illegal firearms, Detective
Benton gave Laughlin additional money to purchase the guns. When
Laughlin returned to Wilson's apartment to purchase the firearms,
Wilson told Laughlin that Abner had the guns. Laughlin and Abner
subsequently drove to Abner's place where Abner sold Laughlin only
one of the guns. During the sale, Abner bragged about having person-
ally removed the serial numbers from the guns with a file, and he also
showed Laughlin an SKS rifle that he stored in his bedroom closet.
After Laughlin delivered the gun to Detective Benton, Detective
Benton directed Laughlin to attempt to purchase the other gun.
Laughlin complied. Because Wilson was not home, Laughlin sought
out Abner on his own. Although Abner told Laughlin that the other
gun had already been sold, he offered to sell Laughlin a forty-five cal-
iber handgun for $175 that also had an obliterated serial number.
Laughlin purchased the gun and turned it over to Detective Benton.
On the evening of January 30, Detective Benton informed Special
Agent Samuel Evans of the Bureau of Alcohol, Tobacco and Firearms
of Wilson's and Abner's illegal conduct. With the intent to gather evi-
dence that Wilson and Abner were violating federal laws, Agent
Evans agreed to accompany Detective Benton if and when he exe-
cuted search warrants of the suspects' apartments.
On January 31, Detective Benton gave Laughlin $300 to purchase
more marijuana from Wilson. During negotiations for the marijuana,
Wilson told Laughlin that he could supply him with as much mari-
juana as Laughlin wanted and that he could also sell Laughlin a
twenty-two caliber semiautomatic rifle. Instead of purchasing mari-
juana, Laughlin purchased the rifle and a clip for the $300. Laughlin
delivered the rifle and clip to Detective Benton.
Detective Benton obtained search warrants. State agents executed
searches of Wilson's and Abner's apartments on January 31. Detec-
tive Benton testified that prior to executing the search warrant, he had
3
Laughlin confirm that marijuana was present in Wilson's apartment
and that no children were in the residence. After receiving such con-
firmation, Detective Benton directed Laughlin to be present at Wil-
son's apartment when the agents executed the search warrant.
Detective Benton also suggested to Laughlin that if Wilson permitted
it, he should open the door when the agents knocked so that they
would not have to knock the door down.
Laughlin testified that when the state agents knocked on the door
at Wilson's home, Wilson directed Laughlin to answer the door.
Before opening the door, however, Laughlin asked Wilson whether he
was "going to ask who it [was]," to which Wilson replied, "No, I'm
expecting somebody." Laughlin opened the door, and the agents
entered the apartment. Wilson was lying on a couch right beside the
door. The state agents then proceeded to search the residence.
Upstairs, in a master bedroom closet, they found one box of plastic
sandwich bags, one nine millimeter round, and one box containing
two bags of marijuana, and marijuana in brick form. Downstairs, the
state agents seized marijuana, scales, and a pager. Although Agent
Evans accompanied Detective Benton, he waited outside and did not
participate in the search of Wilson's apartment. Following Wilson's
arrest, the agents found $1,134 on his person, including the $300 bait
money used by Laughlin. The state agents who searched Abner's
apartment seized the SKS rifle.
Following a joint jury trial, Abner was sentenced to 87 months
imprisonment for each of three counts of possession of a firearm as
a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2);
and to 60 months imprisonment for each of two counts of possession
of a firearm with an obliterated serial number, in violation of 18
U.S.C. §§ 922(k) & 924(a)(1)(B). Abner is to serve all sentences con-
currently.
Wilson was sentenced to 60 months imprisonment for one count of
possession with intent to distribute marijuana in violation of 21
U.S.C. §§ 841(a)(1) & 841(b)(1)(D); and to 60 months imprisonment
for one count of possession of a firearm with an obliterated serial
number in violation of 18 U.S.C. §§ 922(k) & 924(a)(1)(B). Wilson
is to serve these sentences concurrently. Wilson was also sentenced
4
to a term of 120 months for each of two counts of being a felon in
possession of a firearm, in violation of 18 U.S.C.§§ 922(g)(1) &
924(a)(2); and 120 months for one count of possessing a firearm not
registered in the National Firearms Registration and Transfer Record,
in violation of 26 U.S.C. §§ 5841, 5861(d), & 5871. Wilson is also
to serve these sentences concurrently. Finally, Wilson was sentenced
to 120 months imprisonment for one count of using or carrying a fire-
arm during and in relation to a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1). Wilson is to serve this count consecutively,
with the terms imposed on his other convictions to the extent neces-
sary to produce a total sentence of 240 months imprisonment.
II.
First, Abner and Wilson challenge the admission of certain tape
recordings of their conversations with Laughlin that took place during
the drug and firearms sales. They also take issue with the jury's use
of a transcript of one of the tapes. Abner and Wilson had copies of
all of the tapes and the transcript before trial.
A.
Abner and Wilson contend the Government failed to authenticate
both the original tape recordings of their conversations with Laughlin
and a composite tape made from the original recordings. We review
a district court's admission of tape recordings for abuse of discretion.1
We will find error only when "the foundation for admission is clearly
insufficient to insure the accuracy of the recording."2
The Government proffered four tape-recorded conversations, which
occurred between Laughlin and either Wilson or Abner, or both, over
the three-day period. The district court first admitted the original
recordings into evidence after Detective Benton testified, and admit-
ted the composite tape into evidence after Agent Evans testified. But
when the Government requested to play the composite tape during
_________________________________________________________________
1 United States v. Capers, 61 F.3d 1100, 1106 (4th Cir. 1995), cert.
denied, 116 S. Ct. 1830 (1996).
2 Id. (quoting United States v. Clark, 986 F.2d 65, 68 (4th Cir. 1993).
5
Laughlin's testimony, the district court reversed its earlier ruling on
the admissibility of all of the tapes. It prohibited the playing of the
composite tape on the basis that all of the tapes had not yet been prop-
erly authenticated. After Laughlin finished testifying, however, the
district court re-admitted the original tapes and the composite tapes
into evidence over Abner's and Wilson's objections and allowed the
Government to play the composite tape before the jury.
The proponent of an audio recording must show that the recording
was sufficiently authentic to be admitted into evidence.3 A tape
recording can be authenticated if the proponent satisfies Federal Rule
of Evidence 901(b)(5), which provides that the "identification of a
voice, whether heard firsthand or through mechanical. . . recording"
is admissible "by opinion based upon hearing the voice at any time
under circumstances connecting it with the alleged speaker." The dis-
trict court has wide latitude in determining whether or not the propo-
nent of a tape recording has adequately laid the foundation from
which the jury could reasonably evaluate the accuracy, the validity,
and the credibility of the contents of the recordings.4
We hold that the district court did not abuse its discretion by ruling
that the original tape recordings had been properly authenticated
because the original tape recordings were authenticated through the
testimony of Detective Benton and Laughlin. Detective Benton testi-
fied that he had personally wired Laughlin with a hidden wire trans-
mitter prior to each transaction and that he and his partner had
operated and monitored the audio recording equipment while
Laughlin dealt with Abner and Wilson. Detective Benton further testi-
fied to the chain of custody of the tapes by stating that after making
the original recordings he placed his initials on the tapes, secured
them in a file drawer in his office, and removed the tapes only to
make copies for Agent Evans. Laughlin testified that he had listened
to the original tapes and that they accurately recorded his conversa-
tions with Abner and Wilson.
We also hold that the district court did not abuse its discretion by
_________________________________________________________________
3 United States v. Branch, 970 F.2d 1368, 1371 (4th Cir. 1992).
4 Capers, 61 F.2d at 1106.
6
ruling that the composite tape had been properly authenticated
because the composite tape was authenticated through the testimony
of Agent Evans and Laughlin. Agent Evans and Laughlin testified
that they listened to all of the tapes and compared the original record-
ings to those on the composite tape. They concluded that the compos-
ite tape accurately represented the relevant portions of the
conversations recorded from the four original tapes. Laughlin also tes-
tified that the composite tape accurately represented his original con-
versations with Abner and Wilson. Accordingly, we hold the district
court did not abuse its discretion when it finally admitted all of the
tapes into evidence.
B.
Abner and Wilson also claim that the district court erred in allow-
ing the jury to use a government-prepared transcript while listening
to the composite tape. They claim they were prejudiced by alleged
discrepancies between the transcript and the composite tape. The dis-
trict court has the discretion to permit the jury to use a transcript as
a guide in following the presentation of tape recorded evidence.5 We
hold that the district court did not abuse its discretion. Laughlin and
Agent Evans testified that the transcript accurately reflected the con-
tent of the composite tape. Abner and Wilson possessed copies of the
transcript and had the opportunity to cross-examine the Government's
witnesses about the transcript's accuracy. Furthermore, the transcript
was never admitted into evidence. It was only used as a guide. Most
importantly, when the jury received the transcript, the district court
instructed the jury to resolve any potential conflicts between the tape
and the transcript in favor of the composite tape. Hence, the district
court's limiting instruction cured any potential prejudice stemming
from the alleged discrepancies between the composite tape and the
transcript.
III.
Next, Abner and Wilson assert that insufficient evidence exists to
sustain their convictions because their convictions were predomi-
_________________________________________________________________
5 Capers, 61 F.3d 1107.
7
nantly based on the uncorroborated testimony of an informant.6 When
reviewing challenges to the sufficiency of the evidence, we determine
whether "any rational trier of fact could have found the essential ele-
ments of the charged offenses beyond a reasonable doubt."7 We con-
sider, therefore, all of the evidence in the light most favorable to the
government, assuming the jury weighed all of the evidence, resolved
all conflicts in the testimony, and drew all reasonable inferences from
the facts.8
We do not review the credibility of the witnesses when we evaluate
whether there existed sufficient evidence to support a conviction.9
Just as the uncorroborated testimony of one witness or of an accom-
plice may be sufficient to sustain a conviction, the uncorroborated tes-
timony of an informant may also be sufficient.10 Laughlin testified
that he purchased firearms from Abner and Wilson and drugs from
Wilson. The taped audio recordings of Laughlin's conversations with
Abner and Wilson and his delivery of the contraband to Detective
Benton corroborated all of Laughlin's testimony. Furthermore, the
seizure of the SKS rifle from Abner's apartment; the ammunition, the
drugs and drug paraphernalia from Wilson's apartment; and the bait
money from Wilson's person, corroborated Laughlin's testimony.
Accordingly, we hold that the evidence presented to the jury suffi-
ciently established Abner's and Wilson's guilt as to each of their con-
victions.
_________________________________________________________________
6 We address Wilson's sufficiency of the evidence challenge regarding
his 924(c)(1) count in section V.
7 Jackson v. Virginia, 443 U.S. 307, 319 (1979).
8 Id.
9 United States v. Reavis, 48 F.3d 763, 771 (4th Cir. 1995) cert. denied,
115 S. Ct. 2597 (1995).
10 See United States v. Baker, 985 F.2d 1248, 1255 (4th Cir. 1993)
(uncorroborated testimony of accomplice sufficient to support convic-
tion); and United States v. Arrington, 719 F.2d 701, 705 (4th Cir. 1983)
(uncorroborated testimony of one witness sufficient to support convic-
tion).
8
IV.
Wilson contends that the district court committed reversible error
in failing to suppress the evidence found during the search of his
apartment because the state agents violated his Fourth Amendment
right against unreasonable search and seizure when they executed the
warrant.11
Federal Rule of Criminal Procedure 12(b)(3) requires that motions
to suppress evidence must be made before trial.12 Wilson's pretrial
suppression motion only asserted that the warrant was defective. The
motion did not challenge the execution of the search warrant. The
failure to preserve the issue properly amounts to waiver under Rule
12(f). Rule 12(f), however, also permits a district court to grant relief
from the waiver "for cause shown."13 We review a district court's
denial of relief from a waiver for clear error. 14
After the Government presented its case-in-chief, defense counsel
for the first time challenged the execution of the search warrant.
Defense counsel moved to suppress the evidence seized at Wilson's
apartment on the basis that the state police had failed to knock and
announce their identity and purpose before executing the search war-
rant. In support of the untimely motion to suppress, defense counsel
argued that he had not challenged the execution of the search warrant
prior to trial because he had only known Wilson's rendition of what
had transpired. He further claimed that he did not discover how the
state agents had actually executed the warrant until the Government
had presented its case-in-chief. Unpersuaded that counsel's argument
_________________________________________________________________
11 U.S. Const. amend. IV.
12 Fed. R. Crim. P. 12(b)(3).
13 Rule 12(f) provides:
Failure by a party to raise defenses or objection or to make
requests which must be made prior to trial, at the time set by the
court pursuant to subdivision (c), or prior to any extension
thereof by the court, shall constitute waiver thereof, but the court
for cause shown may grant relief from the waiver.
14 United States v. Wilson, 895 F.2d 168, 173 (4th Cir. 1990) (quoting
United States v. Wertz, 625 F.2d 1128, 1132 (4th Cir. 1980)).
9
amounted to cause or justified his failure to raise this specific sup-
pression challenge before trial, the district court overruled the motion.
The record shows that sufficient information was available to
defense counsel before trial that would have enabled him to frame his
suppression motion to include the execution of the search warrant.
Defense counsel knew prior to trial that Laughlin was the state's
informant and that Laughlin was present during the execution of the
search warrant. Additionally, Wilson was personally aware of the
agents' actions leading to their seizing the evidence. Wilson was lying
on the couch adjacent to the door when the officers knocked, and he
directed Laughlin to answer the door without inquiring as to who was
knocking. Wilson was responsible for informing his counsel of the
pertinent facts of the evening in question, and his defense counsel was
responsible for vigorously investigating all of the details of what had
transpired. Consequently, during his pre-trial investigation of the
case, defense counsel could have discovered whether the state offi-
cials had actually failed to knock and announce their identity and pur-
pose. Any "communications gap in that regard will not be recognized
as good cause."15 Finally, defense counsel failed to elicit testimony
that the state agents had in fact failed to announce their presence.
Consequently, we find no error in the district court's admission of the
evidence seized at Wilson's apartment.
V.
Finally, Wilson claims the district court erred in denying his
motion for judgment of acquittal as to the 18 U.S.C.§ 924(c)(1)
charge on the basis that the Government failed to present sufficient
evidence. We agree.
In reviewing the district court's denial of a motion for judgment of
acquittal, we must consider the evidence viewed in the light most
favorable to the government and determine whether any rational jury
could have found each essential element of the crime charged beyond
_________________________________________________________________
15 United States v. Ricco, 52 F.3d 58, 62 (4th Cir. 1995) (quoting
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 11.1(a), at 193 (2nd ed. 1987)) cert. denied, 116 S. Ct. 254
(1995).
10
a reasonable doubt.16 To sustain a conviction under section 924(c)(1),
the Government needed to demonstrate that Wilson (1) used, or (2)
carried, (3) a firearm, (4) during and in relation to a drug trafficking
offense.17
In support of its section 924(c)(1) charge against Wilson, the Gov-
ernment's case-in-chief established that on January 31, 1995: (1)
Laughlin went to Wilson's apartment with the express intent to pur-
chase more marijuana; (2) Wilson offered to sell Laughlin as much
marijuana as he needed; (3) while Wilson negotiated the sale of mari-
juana to Laughlin, he removed an unloaded twenty-two caliber semi-
automatic rifle from a box in his closet and offered to sell it to
Laughlin; and (4) Laughlin purchased only the rifle. Additionally, the
Government elicited testimony that Wilson stored marijuana in the
same box in which he stored the rifle.
In Smith v. United States,18 a case affirming a defendant's 924(c)(1)
conviction for bartering a gun in exchange for drugs, the Supreme
Court declared that "[t]he phrase in relation to . . . at a minimum, clar-
ifies that the firearm must have some purpose or effect with respect
to the drug trafficking crime; its presence or involvement cannot be
the result of accident or coincidence . . . [and] the gun at least must
facilitate or have the potential of facilitating, the drug trafficking
offense."19 Unlike the defendant in Smith, Wilson's sale of the firearm
neither facilitated nor had the potential of facilitating his marijuana
sales.
First, the tape-recorded conversations and Laughlin's testimony
reveal that Wilson neither bartered nor exchanged the rifle for drugs.
Second, the same evidence establishes that Wilson attempted to sell
both a rifle and marijuana to Laughlin. Third, the Government failed
to elicit testimony from Laughlin that the presence of the firearm
influenced his decision or intimidated him into purchasing marijuana
from Wilson. And fourth, Laughlin freely elected to purchase the rifle
_________________________________________________________________
16 United States v. Childress, 26 F.3d 498, 501 (4th Cir. 1994).
17 18 U.S.C.A. § 924(c)(1) (West Supp. 1997).
18 Smith v. United States, 508 U.S. 223 (1993).
19 Id. at 238.
11
instead of the marijuana. Given the facts before us, we are hard-
pressed to conclude that the sale of the rifle facilitated Wilson's drug
trafficking business. It was a completely independent, yet contempo-
raneous action. Hence the Government failed to present sufficient evi-
dence from which any rational jury could reasonably find that
Wilson's sale of the rifle while negotiating a drug transaction satisfied
the "in relation to" element of 18 U.S.C.§ 924(c)(1). Accordingly, we
reverse Wilson's 18 U.S.C. § 924(c)(1) conviction and remand his
case to the district court for resentencing.
VI.
For the foregoing reasons, the appellants' convictions are affirmed
in part, reversed in part, and remanded for further proceedings in
accordance with this opinion.
No. 95-5560 - AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
No. 95-5563 - AFFIRMED
12