United States v. Kenneth Shaw , 94 F.3d 438 ( 1996 )

No. 95-3069
United States of America, *
*
Appellee, *
*
v. *
*
Kenneth Michael Shaw, *
*
Appellant. *
No. 95-3094
United States of America, *
* Appeals from the United States
Appellee, * District Court for the
* District of Minnesota.
v. *
*
Jeffrey Lane Barnes, *
*
Appellant. *
No. 95-3096
United States of America, *
*
Appellee, *
*
v. *
*
Tina Mariam Scott, *
*
Appellant. *
No. 95-3177
United States of America, *
*
Appellee, *
*
v. *
*
Alphonso Ray Tucker, also *
known as Chopper, *
*
Appellant. *
No. 95-4164
United States of America, *
*
Appellee, *
*
v. *
*
Robert Lee Slater, Jr., also *
known as Rob, *
*
Appellant. *
Submitted: June 11, 1996
Filed: August 23, 1996
Before BEAM and HEANEY, Circuit Judges, and BOGUE,1 District Judge.
HEANEY, Circuit Judge.
1
The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.
2
I.
The appellants' convictions stem from an extensive investigation by
state and federal law enforcement agencies into the criminal activities of
Jeffrey Lane Barnes, Kenneth Jones, and others who authorities believed
were responsible for a major drug distribution operation and several drug-
related murders. On May 23, 1995, Barnes, Tina Mariam Scott, Alphonso Ray
Tucker, Kenneth Michael Shaw, and Robert Lee Slater, Jr. were charged by
revised superseding indictment with conspiring to possess with intent to
distribute and conspiring to distribute in excess of five kilograms of
cocaine and in excess of fifty grams of cocaine base in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A).2 The conspiracy charge carried a mandatory
minimum penalty of ten years imprisonment and a maximum penalty of life in
prison. All five appellants were also charged in multiple counts with
using a communication facility for the commission of a felony in violation
of 21 U.S.C. § 843(b). In addition, Barnes was indicted on eight counts
of possession with intent to distribute and/or distribution of cocaine and
cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B);
Tucker was charged with one count of possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Finally, the
indictment charged Barnes with one count of using a minor to distribute
cocaine base and marijuana in violation of 21 U.S.C. § 861(a)(1).
Scott, Shaw, and Slater entered into plea agreements with the
government prior to trial whereby each pleaded guilty to one count of using
a telephone to commit the crimes of possession with the
2
The grand jury returned the original indictment on
September 21, 1994. The government filed a revised indictment on
November 23, 1994. Six other individuals, not parties to this
appeal, were also named in the indictment. For clarity, we discuss
only the charges and the proceedings that pertain to the
appellants.
3
intent to distribute and distribution of cocaine base.3 The government
dismissed the remaining charges against them. The court sentenced them to
prison terms of twenty-one months, fifteen months, and thirty months,
respectively.
Barnes and Tucker were tried by a jury in United States District
Court, District of Minnesota, from May 10 through May 18, 1995. The jury
found Barnes guilty on all counts; Tucker was acquitted on one charge of
illegal telephone use and found guilty on all remaining counts against him.
The court sentenced Barnes to a prison term of 242 months and Tucker to
eighty-four months imprisonment.
Barnes challenges his conviction and sentence; Tucker appeals only
his conviction; Scott, Shaw, and Slater challenge their sentences.
Together, the appellants claim: (1) the government failed to establish the
necessity of using telephone wiretaps; (2) the actions of a paid government
informant amounted to outrageous government conduct; (3) the government's
cross-examination of Tucker about his alleged promotion of prostitution
prejudiced the verdict against him; (4) the evidence was insufficient to
support Barnes' and Tucker's convictions; (5) the court erred by refusing
to give Scott and Shaw mitigating-role sentence adjustments; and (6) the
court erred by not departing downward on the theory that Slater's criminal
history score dramatically overrepresented the seriousness of his prior
criminal history. We affirm.
3
Shaw entered into a plea agreement with the government on
May 2, 1995 and admitted to conduct involving 0.2 grams of cocaine
base; Scott's agreement is dated May 9, 1995 and connects her to
more than one gram and less than two grams of cocaine base. Both
Shaw and Scott agreed to cooperate with the government in the
prosecutions of their co-defendants. Slater entered into a plea
agreement with the government on July 19, 1995 without promising to
cooperate with the government against his co-defendants. Slater
admitted that his offense involved at least .25 grams but less than
.50 grams of cocaine base.
4
II.
At trial, the government introduced seventy-four recorded telephone
conversations as evidence of both the drug conspiracy and using a
communication facility for commission of a felony.4 Barnes moved to
suppress the evidence at trial and now appeals the denial of that motion.
Barnes argues that the police affidavit used to secure the wiretaps did not
establish necessity as required by 18 U.S.C. § 2518. We review the
district court's determination for clear error. See United States v.
Macklin, 902 F.2d 1320, 1327 (8th Cir. 1990), cert. denied, 498 U.S. 1031
(1991).
An application for an order authorizing a wiretap must include, among
other requirements, "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). This necessity requirement ensures
"that wiretaps are not routinely employed as the initial step in an
investigation," but "does not require that law enforcement officers exhaust
all possible techniques before applying for a wiretap." Macklin, 902 F.2d
at 1326. The district court rejected Barnes' argument that the affidavit
was conclusory, was filled with boilerplate language, and failed to
establish the necessity of the wiretaps. The forty-five page affidavit
recounts details of a long investigation into the suspected criminal
activity, which included murder, of Barnes and
4
The recordings were the fruits of five intercept orders
involving three different telephone numbers: (1) an initial order
dated November 12, 1993 authorizing a wiretap on the telephone of
the residence where Barnes lived; (2) an order dated December 10,
1993 authorizing the continuation of the wiretap on Barnes'
telephone; (3) an initial order dated December 17, 1993 authorizing
a wiretap on the telephone of the residence where Kenneth Jones
lived; (4) an initial order dated January 15, 1994 authorizing a
wiretap on the telephone of the residence where Russell Barnes
lived; and (5) an order dated January 23, 1994 authorizing the
continuation of the wiretap on Jones' telephone.
5
others believed to be part of a tight-knit, violent group. According to
the affidavit, authorities had attempted to infiltrate the organization for
more than three years before applying for a wiretap. Ordinary measures
used by authorities in the investigation, including ballistics reports,
interviews with witnesses, confidential informants, surveillance, and pen
registers, had proved unsuccessful; other measures, such as search warrants
and increased undercover operations, were deemed either likely to fail or
too dangerous. We hold that the court did not err in determining that the
affidavit set out the need for the electronic surveillance in sufficient
detail and declining to suppress the wiretap evidence.
III.
Barnes also argues that the behavior of Ronald Caldwell, a paid
government informant who took drugs from controlled purchases for his own
use, amounted to outrageous government conduct.5 Barnes raises this claim
for the first time on appeal. We agree with the government that, under the
facts of this case, Barnes' failure to raise the claim in the district
court constitutes a waiver.
Barnes had notice prior to trial of Caldwell's drug misappropriation
and dishonest behavior. On May 4, 1995, six days before the start of
trial, the government provided defense counsel
5
Although unclear in his brief, Barnes seems to request
suppression of Caldwell's testimony as his only form of relief. We
note that the typical relief sought for outrageous government
conduct is dismissal of the prosecution. See United States v.
Henderson-Durand, 985 F.2d 970, 973 n.4 (8th Cir. 1993) (explaining
outrageous government conduct "essentially is a claim that the
government's conduct was so egregious that a prosecution based upon
that conduct would violate due process"), cert. denied, 510 U.S.
856 (1993); United States v. Lard, 734 F.2d 1290, 1296 (8th Cir.
1984). Given our disposition of this issue, however, we need not
reach the question of what relief would be appropriate.
6
with a letter revealing Caldwell's misconduct. Moreover, Caldwell's
testimony at trial is filled with admissions, including that he took drugs
for his personal use from FBI-financed drug purchases, Trial Tr. at 185,
191, 203, 214, that he lied to agents about his conduct, id. at 187, 211,
264, and that on at least one occasion, he was too high during a controlled
purchase to remember who actually provided him with the drugs, id. at 241.
Rather than object to Caldwell's conduct at the time of trial, the
defendants gambled that the jury would discount his testimony. Considering
all the facts of this case, particularly the fact that Barnes was fully
aware of the basis for a claim of outrageous government conduct, we hold
that Barnes has waived his claim of outrageous government conduct. See
United States v. Henderson-Durand, 985 F.2d 970, 973-74 (8th Cir.) (failure
to raise outrageous government conduct claim until post-trial motion
constituted waiver where defendant knew of factual basis for claim but
proceeded to trial using the same facts to present coercion defense), cert.
denied, 510 U.S. 856 (1993).
IV.
Tucker argues that the verdicts against him were prejudiced by the
government's cross-examination of him about his alleged activities as a
pimp. We review the district court's decision to permit the cross-
examination for an abuse of discretion. See United States v. Ojeda, 23
F.3d 1473, 1477 (8th Cir. 1994).
Tucker testified in his own defense. When asked about his employment
history by his lawyer, Tucker stated that he ran a business, Touch of
Class, whereby he provided bars around the country with male and female
exotic dancers. Trial Tr. at 410. On cross-examination, over defense
counsel's objection, the government asked Tucker whether Touch of Class was
a front for prostitution. Tucker denied the accusation. Id. at 445. To
impeach his credibility, the government showed Tucker a transcript of an
7
intercepted telephone call in which he talked about the amount of money he
makes per night off of women. Id. at 446. Tucker continued to deny that
he promoted prostitution, and the government moved on to a different line
of inquiry. Id. at 447.
The government's cross-examination consisted of a limited exploration
into the nature of Tucker's employment, an issue raised by Tucker. It then
sought to impeach his testimony using his prior inconsistent statements.
The government, however, did not cross the line into offering improper
extrinsic evidence to prove that Tucker was in fact a pimp. See United
States v. Roulette, 75 F.3d 418, 423 (8th Cir. 1996) (impermissible to
introduce extrinsic evidence of prior to impeach witness on a collateral
matter). Moreover, after Tucker again denied involvement in promoting
prostitution, the government did not raise the issue again despite the fact
that Tucker's lawyer questioned other defense witnesses about Tucker's
business. See Trial Tr. at 469 (testimony of Tucker's stepfather); id. at
471-72 (testimony of Touch of Class employee). Under the circumstances,
the court did not abuse its discretion by allowing the limited inquiry into
the nature of Tucker's business.
V.
Both Barnes and Tucker challenge the sufficiency of the evidence
against them. Barnes asserts that the testimony of his nephew, Russell
Barnes, was insufficient for the jury to convict him of distributing crack
cocaine to his nephew. Tucker challenges the evidence with respect to each
of his convictions. When reviewing the sufficiency of the evidence to
sustain a conviction, we view the evidence in a light most favorable to the
guilty verdict. See United States v. Shoffner, 71 F.3d 1429, 1433 (8th
Cir. 1995). The appellants must show that no reasonable jury could have
found them guilty beyond a reasonable doubt. See United States v.
Shoffner, 71 F.3d 1429, 1433 (8th Cir. 1995). Having
8
carefully reviewed the record, we hold that the evidence is sufficient to
support Barnes' and Tucker's convictions.
VI.
Both Scott and Shaw challenge the sentences imposed by the district
court. Specifically, they argue the court erred by denying their requests
for minor-role reductions under section 3B1.2 of the sentencing
6
guidelines. Because a participant's status involves a factual
determination, not a legal conclusion, United States v. Garvey, 905 F.2d
1144, 1146 (8th Cir. 1990), we must accept the district court's factual
findings regarding the appellants' role in the offenses unless they are
clearly erroneous. See United States v. Copeland, 45 F.3d 254, 256 (8th
Cir. 1995).
We agree that neither Scott nor Shaw appears to have played a major
role in the overall drug conspiracy, as opposed to their counts of
conviction for using a communication facility to facilitate a drug crime.
Scott had been involved in a long-term, sometimes abusive, relationship
with Barnes. The couple lived together until 1993 and has two children.
Scott's conviction related to four telephone conversations she had with a
girlfriend in which she relayed messages to and from Barnes to facilitate
her friend's purchase of crack cocaine from Barnes. In one conversation,
Scott stated that some of her money was tied up in
6
The guidelines provide that a defendant is entitled to a
four-level decrease if she was a "minimal participant" in the
criminal activity. U.S.S.G. § 3B1.2(a). A minimal participant is
one who is "plainly among the least culpable of those involved in
the conduct of a group." U.S.S.G. § 3B1.2, comment (n.1). A two-
level decrease is appropriate if the defendant was a "minor
participant" in the criminal activity. U.S.S.G. § 3B1.2(b). A
minor participant is any person who is less culpable than most
other participants but whose role cannot be described as minimal.
U.S.S.G. § 3B1.2, comment (n.3). For cases falling between (a) and
(b), a three-level decrease is appropriate. U.S.S.G. § 3B1.2.
9
the drugs. Shaw, a drug user, was convicted for ordering .02 grams of
crack cocaine from Barnes over the telephone.
At their respective sentencing hearings, Scott and Shaw each moved
for adjustments on the theory that they played mitigating roles in the
offenses. See U.S.S.G. § 3B1.2. The district court found that while
Scott's role in the overall conspiracy might have been minor, she was an
average participant in the telephone transaction. Scott Sentencing Tr. at
6. Similarly, the court found that despite the small drug quantity
involved in the transaction, Slater did not play a minor role in the
illegal telephone use. Rather, according to the district court, Shaw
"would really be viewed as an average participant rather than playing a
minor or other mitigating role." Shaw Sentencing Tr. at 5.
The district court's findings are not clearly erroneous and the court
did not err by declining to grant Scott and Shaw minor-role adjustments.
Both Scott and Shaw used the telephone to negotiate a drug transaction,
making them neither more nor less culpable than the average person who
commits the same offense. With respect to the fact that the quantities of
drugs involved in the transactions were small, we note that the guidelines
already account for this fact: The sentence for a section 843(b) violation
depends directly on the drug quantity involved. See U.S.S.G. § 2D1.6
(1994). Although this result might have been different if Scott and Shaw
had been convicted of conspiracy, the court did not err in determining that
Scott's and Shaw's roles in their offenses of conviction warranted no
sentencing reductions.
VII.
Finally, Slater appeals the district court's refusal to depart
downward on the theory that Slater's criminal history category
overrepresented the true seriousness of his criminal background.
10
Slater had twenty-five adult convictions earning him twenty criminal
history points under the guidelines. The bulk of his prior convictions
were for thefts in which Slater stole property to support his crack cocaine
addiction. The district court indicated that it was aware that it had
authority to depart downward if it concluded that the criminal history
category overrepresented the seriousness of Slater's criminal history or
the likelihood that he will commit future crimes. Slater Sentencing Tr.
at 8. Nonetheless, the court stated:
I simply cannot do that. I think as the presentence
investigation report points out, in addition to the
series of crimes to which the defendant is receiving
points, there are other criminal activities that are not
calculated in here, and I think when you look at the
totality of the defendant's criminal history, category
six is the appropriate designation for him.
Id. at 9. As Slater conceded at oral argument, the court's discretionary
decision not to depart downward under section 4A1.3 is unreviewable. See
United States v. Hall, 7 F.3d 1394, 1396 (8th Cir. 1993). Therefore, we
affirm Slater's sentence.
VIII.
In conclusion, we hold: (1) the government properly established the
necessity of the wiretap, (2) Barnes waived his claim of outrageous
government conduct, (3) the court did not err by permitting limited cross-
examination of Tucker on the question of his promotion of prostitution, (4)
Barnes' and Tucker's convictions were supported by substantial evidence;
(5) the court did not err by declining to give Scott and Shaw mitigating-
role sentencing adjustments, and (6) the court's discretionary decision not
to depart downward on the theory that Slater's criminal history score
overstated the seriousness of his criminal background is unreviewable by
this court. Therefore, we affirm the appellants' convictions and
sentences.
11
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
12