United States v. Nikolaos Mamalis ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4687
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NIKOLAOS MAMALIS,
Defendant – Appellant,
and
BALTIMORE CITY POLICE DEPARTMENT,
Respondent.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:09-cr-00608-BEL-1)
Argued: September 19, 2012 Decided: November 30, 2012
Before KEENAN and FLOYD, Circuit Judges, and Timothy M. CAIN,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished opinion. Judge Cain wrote the opinion,
in which Judge Keenan and Judge Floyd joined.
ARGUED: William Lawrence Welch, III, Baltimore, Maryland, for
Appellant. Debra Lynn Dwyer, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Jeffrey W. Peyton, Law
Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
CAIN, District Judge:
A jury convicted Nikolaos Mamalis (Mamalis) of various
federal offenses arising out of a series of armed robberies
committed between July and November 2009. Mamalis was sentenced
to a total of seventy-seven years’ imprisonment. On appeal,
Mamalis challenges his convictions and sentences on several
grounds, including the improper admission of evidence, the
failure of the district court to instruct the jury on the
definition of reasonable doubt, and violation of the Double
Jeopardy Clause. For the reasons below, we affirm.
I.
Between July and November 2009, Mamalis, along with co-
defendants Daniel Chase (Chase), Evangelos Tsoukatos
(Tsoukatos), Antowan Bell (Bell), George Laloudakis
(Laloudakis), and Pedro Garcia (Garcia), planned and committed
three armed robberies. In all three robberies, Mamalis knew the
victims, assisted with the planning of the robberies and
surveillance of the victims, and coordinated the other
defendants’ actions via a cell phone during the robberies.
First, on July 29, 2009, after planning and coordinating
via prepaid cell phones, Mamalis, Chase, and Garcia robbed
Precision Vending, a private business in Baltimore, Maryland.
Mamalis knew the store’s owner and the physical layout of the
3
location. Once the owner was alone in the building, Chase and
Garcia impersonated delivery men, gained access to the store,
brandished a firearm, and stole over $10,000.
Second, on September 2, 2009, Mamalis, Chase, and
Laloudakis robbed the home of the owner of Citizens Pharmacy
Services, another of Mamalis’s acquaintances. Chase and
Laloudakis impersonated law enforcement investigators, gained
access to the gated community and then the home, brandished a
firearm at the owner and his wife, and absconded with jewelry
and cash.
Finally, on September 29, 2009, Mamalis, Laloudakis,
Tsoukatos, and Chase robbed the home of the owner of Sparrow’s
Point Restaurant, yet another of Mamalis’s acquaintances. This
time, Chase impersonated an investigator with the Baltimore
County State’s Attorney Office, gained access to the home,
brandished a firearm at the owner and restrained him, allowing
the defendants to steal over $110,000.
During the investigation of the robberies, five pen
register orders were issued between August 31 and November 7,
2009. Additionally, a wiretap authorization order was issued on
November 5, 2009. Through the wiretap interceptions, law
enforcement learned that Mamalis and Chase intended to commit
another robbery in Atlantic City.
4
On November 8, 2009, state and federal investigators began
surveillance of Mamalis and Bell in Baltimore and followed them
to Atlantic City. On November 9, 2009, Chase met up with
Mamalis and Bell in Atlantic City, where law enforcement
arrested the three defendants. Officials searched Chase's
vehicle in conjunction with his arrest and discovered mace,
rope, rubber gloves, handcuffs, empty money bags, a knife, tape,
and a fake law enforcement identification.
Pursuant to a search warrant, officials then searched
Mamalis's hotel room and recovered a cell phone, hotel receipts,
a wallet, Bell's driver's permit, a sock containing jewelry, and
other items. Subsequently, law enforcement obtained another
search warrant to search Mamalis's residence. From this search,
officials recovered a firearm and a firearm box.
II.
Mamalis filed several motions to suppress tangible
evidence, wiretap evidence, and various statements. After a
suppression hearing, the district court denied these motions.
Following a jury trial, Mamalis was convicted of three
counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(2006), one count of conspiracy to commit Hobbs Act robbery, in
violation of 18 U.S.C. § 1951, and three counts of using and
carrying a firearm during and in relation to a crime of
5
violence, in violation of 18 U.S.C. § 924(c)(2006). The
district court sentenced Mamalis to twenty (20) years to run
concurrently for the conspiracy to commit a Hobbs Act robbery
(Count One) and the three Hobbs Act robberies (Counts Two, Four,
and Six); seven (7) years to run consecutively for using a
firearm in relation to the conspiracy in Count One and the Hobbs
Act robbery in Count Two (Count Three); twenty-five (25) years
to run consecutively for using a firearm in relation to the
conspiracy in Count One and the Hobbs Act robbery in Count Four
(Count Five); and twenty-five (25) years to run consecutively
for using a firearm in relation to the conspiracy in Count One
and the Hobbs Act robbery in Count Six (Count Seven).
Accordingly, the district court sentenced Mamalis to a total of
seventy-seven (77) years.
III.
A.
Mamalis argues that the evidence obtained through use of
the pen registers was inadmissible because (1) the warrants were
invalid; and (2) the orders authorized use of the pen registers
"without geographical limits," in violation of 18 U.S.C. § 3123.
We disagree.
Under federal law, an application for an order authorizing
the use and installation of a pen register must include the name
6
of the attorney making the application, the “identity of the law
enforcement agency conducting the investigation," and "a
certification by the applicant that the information likely to be
obtained is relevant to an ongoing criminal investigation being
conducted by that agency.” 18 U.S.C. § 3122. Moreover, an order
authorizing the installation and use of a pen register must
specify:
(A) the identity, if known, of the person to whom is
leased or in whose name is listed the telephone line
or other facility to which the pen register or trap
and trace device is to be attached or applied;
(B) the identity, if known, of the person who is the
subject of the criminal investigation;
(C) the attributes of the communications to which the
order applies, including the number or other
identifier and, if known, the location of the
telephone line or other facility to which the pen
register or trap and trace device is to be attached or
applied, and, in the case of an order authorizing
installation and use of a trap and trace device under
subsection (a)(2), the geographic limits of the order;
and”.
(D) a statement of the offense to which the
information likely to be obtained by the pen register
or trap and trace device relates . . .
18 U.S.C. § 3123(b)(1). Maryland law is substantially similar.
See Md. Code. Ann., Cts. & Jud. Proc. § 10-4B-03 (West 1988).
1.
"We review the factual findings underlying a motion to
suppress for clear error and the district court’s legal
determinations de novo." United States v. Hamlin, 319 F.3d 666,
7
671 (4th Cir. 2003)(citing United States v. Rusher, 966 F.2d
868, 873 (4th Cir. 1992)). On appeal, we also review the
evidence in a light most favorable to the government when a
motion to suppress has been denied. Id. (citing United States
v. Seidman, 156 F.3d 524, 547 (4th Cir. 1998)).
2.
First, Mamalis argues that the orders authorizing the use
of pen registers were invalid because the judges' signatures
were inconsistent and the detectives' signatures were missing
from the warrant applications.
The government had initially given Mamalis copies of the
applications and orders without the detectives' signatures.
However, after Mamalis moved to suppress, the government
delivered copies of the applications and orders displaying both
the detective and judges' signatures. Mamalis contends that the
supplemental disclosures raised additional questions about the
validity of the pen register warrants, because the judges’
signatures in the supplemental discovery appeared different from
the signatures for the same judges in the original discovery.
The district court held a two-day suppression hearing. At
the hearing, the two detectives who sought the pen register
warrants testified as to the usual procedure used in obtaining
pen register warrants from the Circuit Court of Baltimore City,
which included a process designed to prevent copies of the
8
judges' true signatures from circulating in public. Further,
the detectives testified that they routinely did not sign the
applications and orders until they were in the presence of the
judge and only after having been sworn in. The detectives
testified that they followed this process every time they sought
a pen register warrant.
The district court denied the motion to suppress, finding
that the detectives’ testimony established that the pen register
orders were signed by the judges in their presence and the
signatures appeared different due to the process designed to
prevent the circulation of the judges’ true signatures. We find
no error in the district court's denial of the motion to
suppress as to this issue. 1
Mamalis also argues that the state court pen register
orders were invalid because they were "without geographical
limits." However, while four of the pen register court orders
use the language "without geographical limits," the orders also
clearly establish that the pen registers are to be "installed
1
We also note that there is a letter in the Supplemental
Joint Appendix from Circuit Court Judge John Addison Howard
dated the day after the district court filed its order denying
Mamalis’ motion to suppress in which Judge Howard certifies that
his signature is on four of the applications and orders. (Supp.
J.A. 3).
9
and used within the jurisdiction of [the state] Court." 2 We hold
that this language provides that the geographical limits of the
pen registers were coterminous with the geographical
jurisdiction of the issuing state courts, and therefore were not
without geographical limits.
Finally, Mamalis contends that the pen register orders were
invalid because they failed to state who was the subject of the
investigation. Section 3123(b)(1)(B) requires only that the
subject be stated, if known. Four of the five pen register
orders stated that the subject was unknown and the fifth one
stated Mamalis was the subject of the investigation. In his
brief, Mamalis states in one sentence that the pen registers
fail to name the subject of the investigation. He did not raise
this issue below, and further he does not provide any argument
pertaining to this issue on appeal. See Fed.R.App.P.
28(a)(9)(A)(“[Appellant's] argument . . . must contain . . .
appellant's contentions and the reasons for them, with citations
to the authorities and parts of the record on which the
appellant relies.”). Therefore, we find Mamalis has waived this
issue on appeal. Wahi v. Charleston Area Med. Ctr., Inc., 562
F.3d 599, 607 (4th Cir. 2009)(holding that a single declarative
2
The fifth pen register order, issued August 31, 2009, does
not mention geographical limits.
10
sentence, without citations to authorities or the record, is
insufficient to raise an argument on appeal).
B.
Mamalis then argues that the district court improperly
admitted evidence obtained through the wiretaps because (1) the
warrants were not valid under 18 U.S.C. § 2518 and (2) the
government failed to issue reports to the Administrative Office
of the United States Courts (AO) in accordance with 18 U.S.C. §
2519. We disagree.
On November 5, 2009, an order authorizing the interception
of wire and electronic communications on two telephone numbers
was issued by a judge for the Circuit Court of Baltimore County,
pursuant to an affidavit and application submitted by a
Baltimore Police detective. The order required the government
to file progress reports with the court every seven days, with
the first report due on November 10, 2009. Mamalis was arrested
on November 9, 2009.
As stated above, we review the "factual findings underlying
a motion to suppress for clear error and the district court’s
legal determinations de novo." Hamlin, 319 F.3d at 671 (citing
Rusher, 966 F.2d at 873). On appeal, this court also reviews
the evidence in a light most favorable to the government when a
motion to suppress has been denied. Id. (citing Seidman, 156
F.3d at 547).
11
1.
Mamalis argues that the wiretaps were invalid because the
warrants did not comply with 18 U.S.C. § 2518. Specifically, he
contends that the warrants failed to comply with § 2518(1)(b)
and (c), as they failed to set forth a full and complete
statement regarding the facts and whether investigative
procedures had been tried and failed. 3 Mamalis also argues that
the warrant violated § 2518(4)(b) because the November 5, 2009
wiretap order lists a phone number inconsistent with the phone
number listed in the application and affidavit. Finally,
Mamalis argues that the warrants are invalid because the
government failed to report its progress to the judge as
required by § 2518(6).
Pursuant to § 2518(b) and (c), an application for an order
authorizing a wiretap must include “a full and complete
statement of the facts and circumstances relied upon by the
applicant, to justify his belief that an order should be
issued,” and “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(b),(c). Additionally,
3
Mamalis mentions that the warrants also violate §
Although
2518(1)(e), because he makes no argument in furtherance of that
contention, that argument is deemed abandoned.
12
pursuant to § 2518(4), an order authorizing wiretapping must
specify “the identity of the person, if known, whose
communications are to be intercepted” and “the nature and
location of the communications facilities as to which, or the
place where, authority to intercept is granted.” 18 U.S.C. §
2518 (4)(a),(b).
2.
First, Mamalis argues that the information obtained via the
wiretap was obtained in violation of federal law because the
application for the wiretap did not include a “full and complete
statement of the facts and circumstances relied upon by the
applicant” as required by § 2518(1)(b). Specifically, he argues
that the affiants stated that they did not “include[]details of
every aspect of this investigation to date." However, the
affiants also explicitly stated that ”[f]acts not set forth
herein are not being relied on in reaching the conclusion that
orders should be issued." Therefore, we find that the affidavit
does not violate § 2518(1)(b) and the district court did not err
in denying Mamalis’s motion to suppress on this ground.
Next, Mamalis argues that the wiretap authorization was
improper because the applicant failed to include a “full and
complete statement as to whether or not investigative procedures
have been tried and failed,” in violation of § 2518(1)(c). He
argues that the applicant merely “summarize[d] various types of
13
investigative techniques.” We find this contention to be
without merit.
Findings of necessity by the issuing court are reviewed for
abuse of discretion. United States v. Wilson, 484 F.3d 267, 280
(4th Cir. 2007). Furthermore, the burden on the government to
show that it exhausted other investigative techniques prior to
applying for wiretap authorization is not great. United States
v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994). In essence, the
government must show that wiretapping the phones in conjunction
with the investigation is reasonable. Id. at 1298.
Here, the affidavit detailed at length the extent to which
other investigative techniques were tried and failed or were
unlikely to succeed. Moreover, the affidavit explained how the
wiretaps were necessary to gather evidence about Mamalis and his
cohorts and their operation and to establish their locations.
Indeed, the government listed no fewer than seventeen separate
paragraphs in the affidavit justifying the use of wiretaps. The
affidavit clearly demonstrated that the government had exhausted
other investigative techniques and that wiretapping was
necessary and reasonable. Accordingly, we hold that the
district court did not abuse its discretion in finding that the
government complied with its burden.
Mamalis also contends that the November 5, 2009 wiretap
order warrant violated § 2518(4)(b) because it lists a different
14
phone number from the phone number referred to in the
application and affidavit. 4 However, this was merely a
typographical error which was corrected in a subsequent order.
Accordingly, we find no error.
Finally, Mamalis argues that the prosecution violated §
2518(6), because it did not file a progress report with the
judge who issued the order. Pursuant to § 2518(6), an order
authorizing interception “may require reports to be made to the
judge who issued the order showing what progress has been made
toward achievement of the authorized objective and the need for
continued interception.” 18 U.S.C. § 2518(6). Here, however,
prior to the due date of the first progress report, Mamalis and
the other defendants had been arrested, making a report
unnecessary, as continued interception was no longer needed.
Therefore, we hold that the district court properly refused to
suppress the evidence on this ground.
3.
Additionally, Mamalis argues that the district court erred
in admitting the wiretap evidence because the government failed
to submit a report to the AO, as required by 18 U.S.C. § 2519.
The government contends that it complied in March 2010.
4
Specifically, Mamalis alleges that the application and
affidavit sought interception for a phone number ending in
“2232,” while the wriretap order authorized an interception for
a phone number ending in “2322.”
15
Regardless, even if the report was not properly made, Mamalis
presents no authority suggesting that suppression is the proper
remedy for failing to comply with this requirement.
Section 2518(10)(a)provides that evidence may be suppressed
when “the communication was unlawfully intercepted,” “the order
of authorization or approval under which it was intercepted is
insufficient on its face,” or “the interception was not made in
conformity with the order of authorization or approval.”
Failure to submit a report to the AO falls under none of those
conditions. Accordingly, we hold that the district court
properly admitted the evidence obtained by the wiretaps.
C.
Mamalis contends that tangible evidence obtained through
the search of his hotel room and residence was improperly
admitted because the affidavits used to establish probable cause
for the warrants contained evidence improperly obtained from the
pen registers and wiretaps. He argues that the searches
violated the Fourth Amendment and the evidence obtained
constitutes fruit of the poisonous tree. See U.S. Const. amend.
IV (“The right of the people to be secure in their persons . . .
against unreasonable searches and seizures, shall not be
violated . . . .”).
As stated above, we review factual findings underlying the
denial of a motion to suppress for clear error and legal
16
determinations de novo. Hamlin, 319 F.3d at 671. Further, when
a motion to suppress has been denied, we review the evidence in
the light most favorable to the government. Id.Mamalis’s contention is without merit. As explained above,
the pen registers and wiretaps were lawful. Therefore, the
evidence was properly admitted. Moreover, even if the evidence
was obtained improperly, the investigating agents reasonably
relied on the issuance of the warrants for Mamalis’s hotel room
and home. See United States v. Leon, 468 U.S. 897, 923, 927
(1984) (Blackmun, J., concurring) (summarizing the Court’s
holing as: “[E]vidence obtained in violation of the Fourth
Amendment by officers acting in objectively reasonable reliance
on a search warrant issued by a neutral and detached magistrate
need not be excluded, as a matter of federal law”). Therefore,
the district court did not err in admitting this evidence.
D.
Next, Mamalis argues that the district court abused its
discretion in admitting summary charts showing the defendants’
cell phone usage vis-a-vis their physical locations during the
robberies. He argues that admission during the evidence portion
of the trial was improper because the summary charts contained
arguments and were not simply summaries of records.
17
1.
We review a district court’s evidentiary rulings for abuse
of discretion. United States v. Kelly, 510 F.3d 433, 436 (4th
Cir. 2007) (citing United States v. Young, 248 F.3d 260, 266
(4th Cir. 2001)).
In the Fourth Circuit, we apply a two-part test to
determine if summary charts were properly admitted. “First, we
determine whether the charts aided the jury in ascertaining the
truth.” United States v. Johnson, 54 F.3d 1150, 1159 (4th Cir.
1995)(citing United States v. Pinto, 850 F.2d 927, 935 (2d Cir.
1988); United States v. Scales, 594 F.2d 558, 563 (6th Cir.
1979)). Second, “we consider the possible prejudice that would
result to the defendant by allowing the summary chart into
evidence.” Id. To determine whether the charts aided the jury
in ascertaining the truth, we consider “the length of the trial,
the complexity of the case, and the accompanying confusion that
a large number of witnesses and exhibits may generate for the
jury.” Id. Additionally, to reduce the potential of unfair
prejudice, the district court may (1) make both the person who
prepared the charts and the evidence they used to prepare them
available for cross-examination, and (2) properly instruct the
jury as to how it may consider the charts. Id.18
2.
Here, in light of the length, complexity, and nature of the
case, the summary charts clearly aided the jury in ascertaining
the truth. The trial was seven days long and involved twenty-
three witnesses. See generally United States v. Loayza, 107
F.3d 257 (4th Cir. 1997) (permitting admission of summary charts
in a three-day trial for mail fraud that included testimony from
thirteen government witnesses); Johnson, 54 F.3d 1150(permitting admission of summary charts in a seven-day trial
that included testimony from thirty witnesses). Furthermore,
the trial involved a number of co-defendants, numerous cell
phones, pen registers and wiretaps authorized for various
phones, and three violent robberies. These factors increased
the complexity of the issues before the jury, and the summary
charts enabled the jurors to untangle the intricate facts of the
case. Undeniably, the summary charts aided the jury in
ascertaining the truth.
Nor did Mamalis suffer any unfair prejudice by the district
court’s admission of the charts. In fact, the district court
took a number of steps to protect Mamalis from any potential
prejudice, including granting Mamalis pre-trial access to the
charts and the underlying information used to prepare them and
issuing a curative instruction to the jury prior to their
introduction. Finally, the district court permitted Mamalis’s
19
counsel to cross-examine the detective who introduced the
summary charts. Accordingly, we hold that the district court
did not abuse its discretion when it admitted the summary charts
into evidence.
E.
Mamalis argues that the district court abused its
discretion when it declined his request to give a jury
instruction defining reasonable doubt. We hold that this claim
has no merit.
A district court’s determinations regarding jury
instructions are reviewed for abuse of discretion. United
States v. Stotts, 113 F.3d 493, 496 (4th Cir. 1997); United
States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992).
As Mamalis concedes, our precedent establishes that the
district court need not define reasonable doubt for the jury,
even when such an instruction is requested by the jury. See
United States v. Walton, 207 F.3d 694, 696-97 (4th Cir. 2000)
(en banc) (“[T]he well-established rule of this Circuit is that
although the district court may define reasonable doubt to a
jury upon request, the district court is not required to do
so.”); United States v. Moss, 756 F.2d 329, 333 (4th Cir. 1985).
Mamalis asks us to overrule decisions by previous panels.
However, we decline to do so, as that is something only the en
banc court of appeals or the Supreme Court of the United States
20
may do. See United States v. Guglielmi, 819 F.2d 451, 457 (4th
Cir. 1987). Under controlling precedent, the district court was
not required to define reasonable doubt, and thus we hold that
the district court did not abuse its discretion.
F.
Mamalis contends that his sentence violates 18 U.S.C. §
924(c) because his convictions were part of an ongoing criminal
scheme, rather than second or subsequent convictions. The court
reviews legal issues de novo. United States v. Davenport, 445
F.3d 366, 370 (4th Cir. 2006), abrogated by Irizarry v. United
States, 553 U.S. 708 (2008).
Section 924(c) states, in pertinent part,
[A]ny person who, during and in relation to any crime
of violence or drug trafficking crime . . . uses or
carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug
trafficking crime . . . be sentenced to a term of
imprisonment of not less than 5 years.
. . . .
In the case of a second or subsequent conviction under
this subsection, the person shall be sentenced to a
term of imprisonment of not less than 25 years....
18 U.S.C. § 924(c)(emphasis added). As Mamalis recognizes,
however, his claim is foreclosed by the holding in United States
v. Deal, 508 U.S. 129 (1993). In Deal, the Supreme Court held
that any § 924(c) conviction subsequent to an initial § 924(c)
conviction, whether the offenses took place in separate
21
incidents or not, qualifies as a second or subsequent conviction
under § 924(c). Id. at 135. Accordingly, we conclude that the
district court imposed proper sentences.
G.
Finally, Mamalis argues that his sentence violates the
Double Jeopardy Clause because the indictment referenced the
conspiracy count in each of the three § 924(c) firearms charges.
See U.S. Const. amend. V ("No person shall . . . be subject for
the same offence to be twice put in jeopardy of life or limb . .
. ."). The court finds this claim to be meritless.
In the indictment, Counts Three, Five, and Seven constitute
charges for separate firearms convictions stemming from each of
the three separate robberies in violation of § 924(c). Each of
the § 924(c) counts referenced the conspiracy charge and the
relevant Hobbs Act robbery charge as the predicate offenses.
Therefore, a plain reading of the indictment establishes that
each § 924(c) charge was alleged based upon distinct actions in
separate robberies. Furthermore, pursuant to Deal, 508 U.S.
129, it is clear that Mamalis’s sentences do not violate the
Double Jeopardy Clause.
22
IV.
Based on the foregoing, Mamalis's convictions and sentences
are
AFFIRMED.
23