United States v. Leon D. Milton ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
_______________
No. 98-1168, 1169, 1170, 1214
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United States, *
*
Plaintiff-Appellee, *
* Appeals from the United States
v. * District Court for the District
* Of Nebraska
Leon Delmar Milton, etc., *
Ludia Gajewski, etc., *
Jeffrey Sean Mitchell, etc., and *
Ernest Thornton, etc. *
*
Defendants-Appellants. *
____________
Submitted: June 8, 1998
Filed: August 24, 1998
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Before LOKEN, Circuit Judge, GODBOLD,1 and HEANEY, Senior Circuit
Judges.
____________
GODBOLD, Senior Circuit Judge:
1
The HONORABLE JOHN C. GODBOLD, United States Senior Circuit
Judge for the Eleventh Circuit, sitting by designation.
Defendants Leon Delmar Milton, Lydia Gajewski, Jeffrey Mitchell, and Ernest
Thorton were convicted of conspiracy to possess with intent to distribute and
conspiracy to distribute cocaine base in violation of 21 U.S.C. § 841 (a)(1) & 846 in
the United States District Court for the District of Nebraska. They appeal their
convictions, contending that the district court erred in denying their motion to
suppress evidence and in denying their motion for a Franks hearing. Leon Milton and
Jeffrey Mitchell also appeal their sentences.
I. Background
On December 22, 1995, federal agent William Nellis submitted an affidavit to
the district court applying for an order authorizing the interception of wire
communications over a telephone number that the FBI suspected was being used to
conduct drug transactions in Omaha, Nebraska. The application for a wiretap was
part of an investigation into the activities of suspected drug dealers in the Omaha
vicinity. The investigation was initiated after the agents received tips from a paid
informant claiming to have knowledge of illegal drug activity.
The order authorizing a thirty day interception was granted and the wiretapping
began on December 26. A thirty day extension was granted on January 26, 1996.
Federal agents intercepted numerous phone calls from the wiretapped residence.
Presented with these calls as evidence, a federal grand jury returned an indictment
against the four defendants in this case, as well as several other individuals who are
not parties to this appeal.
The defendants moved the district court to disclose the identity of the informant
upon whom the affidavit relied and to suppress the evidence derived from the
interception of the wire communications. The defendants asserted that the Nellis
affidavit did not support a finding of probable cause and did not make a showing of
necessity as required by 18 U.S.C. § 2518(3)(a)-(d), which authorizes wiretapping
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by federal officials in some circumstances. The defendants also attacked the veracity
of the Nellis affidavit and requested a Franks hearing to determine whether federal
agents had recklessly disregarded the truth in preparing the affidavit. The district
court denied all of these motions.
The defendants then entered conditional pleas of guilty and were sentenced:
Milton to 360 months, Mitchell to 292 months, Thorton to 136 months and Gajewski
to 120 months. This appeal followed.
II. Discussion
All defendants contest the Nellis affidavit and order allowing the wiretap and
some contest aspects of their sentences.
A. Probable Cause
The probable cause required for allowing electronic interception of wire
communications is the same as that required by the Fourth Amendment for a search
warrant. See U.S. v. Macklin, 902 F.2d 1320, 1324 (8th Cir. 1990); U.S. v. Leisure,
844 F.2d 1347, 1354 (8th Cir. 1988). Our duty as the reviewing court is only to
ascertain that the district judge issuing the order had a "substantial basis for ...
conclud[ing]" that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39,
(1983). To that end we must determine that the affidavit included facts that would
allow the issuing judge to believe (1) that an individual had committed or was about
to commit a particular offense, (2) that communication relating to that offense would
be intercepted, and (3) that the residence was being used in connection with that
offense or was commonly used by those whose communications were to be
intercepted. See Leisure, 844 F.2d at 1354 (citing Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510- 2520.). In determining
probable cause we are bound to consider only the facts contained within the four
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corners of the affidavit. 2 U.S. v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995).
The Nellis affidavit was primarily based on the statements of a confidential
informant, referred to by the affidavit as Source One. The affidavit explained that
Source One had cooperated with federal agents on previous occasions and that the
information provided by Source One had led to numerous arrest and convictions.
Source One described many instances of drug activity at the house where the wiretap
was to be administered. Source One named individuals involved and described
conversations that she was a party to or overheard which detailed drug transactions
and shipments. Some of the conversations described concerning drug shipments and
transactions occurred over the phone line that was to be tapped. The affidavit stated
that Source One had personally observed one of the suspects with cocaine and that she
had seen two females pick up an amount of cocaine or crack from the residence where
the wiretap was to be installed.
The affidavit contained information from three other sources as well. These
other sources provided information regarding members of the conspiracy and
indicating that these members were involved in the illegal drug trade. Agent Nellis
also included in the affidavit the phone numbers and pager numbers of several
members of the alleged conspiracy. He reported pen registers that showed that calls
were made from the residence to be tapped to each of the members of the conspiracy.
This evidence was sufficient for the issuing district judge to find probable cause
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Determining probable cause requires us to put ourselves in the place of the
district court and decide whether that court had sufficient information before it to
find probable cause. Because we review probable cause only on the basis of facts
contained within the affidavit, as does the district court, as part of the instant inquiry
we do not address the appellants’ assertions that the affidavit contained false
statements. Questions of veracity must be considered only within the purview of a
Franks v. Delaware hearing.
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to believe that the individuals in question were committing crimes, that the residence
to be tapped was being used to commit the crimes and that communications relating
to the offenses would be intercepted by the wiretap. We find no error in the district
court’s order denying the defendant’s motion for suppression of the wiretap evidence
based on a lack of probable cause.
B. Necessity
The defendants also sought to suppress the wiretap evidence on the ground that
the order granting the application for interception failed to meet the requirements for
wiretaps set out in 18 U.S.C. § 2518(3). This statute allows a judge to enter an order
allowing a wiretap where the following conditions are met:
(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit a
particular offense enumerated in section 2516 of this
chapter;
(b) there is probable cause for belief that particular
communications concerning that offense will be obtained
through such interception;
(c) normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed
if tried or to be too dangerous;
(d) . . . there is probable cause for belief that the facilities
from which, or the place where, the wire, oral, or electronic
communications are to be intercepted are being used, or are
about to be used, in connection with the commission of such
offense, or are leased to, listed in the name of, or commonly
used by such person.
18 U.S.C. § 2518(3)(a)-(d). Defendants contend that the affidavit was deficient
because it did not sufficiently describe the traditional investigative procedures
previously tried and why these procedures failed, making the wiretap necessary.
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The affidavit describes traditional investigative techniques and explains why
these techniques do not normally prove successful when targeting drug conspiracies.
Most of the assertions would be true in any drug investigation. The reasons given
include witnesses’ fear in answering questions and propensity of individuals to plead
the Fifth; the fact that normal surveillance only exposes meetings between individuals,
leaving agents to guess at the purpose of the meetings; the residential nature of the
neighborhood precludes agents from remaining near the suspicious residence; and that
phone records only reveal that conversations between individuals took place but do
not reveal the nature of the conversations. The only reason given that was specific to
this particular investigation was that the suspects kept the trash container for the
residence on the front porch, making it impossible for agents to search the garbage.
Although some of these assertions might appear boilerplate, the fact that drug
investigations suffer from common investigatory problems does not make these
problems less vexing. Drug crime is necessarily harder to detect than other crimes
because it is difficult to witness and does not create victims who are compelled to
come forward and report the crime. Furthermore, agents preparing the affidavits
supporting applications for electronic surveillance are not required to exhaust "all
possible investigative techniques" before a court can issue an order authorizing
interception of wire communications. U.S. v. Falls, 34 F.3d 674, 682 (8th Cir. 1994).
The necessity prong of § 2518(3)(c) is a finding of fact subject to a clearly erroneous
standard of review. See U.S. v. Davis, 882 F.2d 1334, 1343 (8th Cir. 1989). We find
no error in the district court’s refusal to suppress the wiretap evidence based on a lack
of necessity.
C. Veracity of the Affidavit
Although we find that the affidavit supporting the wiretap order is facially
sufficient, a defendant may challenge an affidavit on the ground that the police
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included deliberate or reckless falsehoods under Franks v. Delaware, 438 U.S. 154,
155-56 (1978), or deliberately or recklessly omitted material information under U. S.
v. Reivich, 793 F.2d 957, 960 (8th Cir. 1986). “In order to prevail on a challenge to
a warrant affidavit under Franks, a defendant must show: (1) that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included in
the affidavit, and (2) that the affidavit's remaining content is insufficient to establish
probable cause.” Gladney, 48 F.3d at 313. In order to be entitled to a hearing under
Franks the defendant must make a "substantial preliminary showing" of a false or
reckless statement or omission and must also show that the alleged false statement or
omission was necessary to the probable cause determination. U. S. v. Fairchild, 122
F.3d 605, 610 (8th Cir. 1997), cert. denied, Leisinger v. U.S., 118 S. Ct. 1086 (1998).
The "substantial preliminary showing" requirement needed to obtain a Franks hearing
is not lightly met. U.S. v. Hiveley, 61 F.3d 1358, 1360 (8th Cir. 1995).
In this case the defendants presented evidence that the affidavit included
statements made by Source One that the affiant either knew or should have known
were false. Specifically the defendants allege that Source One in a subsequent
interview declared that she had never personally seen any drugs at the residence that
was to be tapped and that she never told agents that she had personally seen drugs.
At least two paragraphs of the affidavit include statements that Source One had
personally seen a defendant use crack cocaine and that she had seen two young
women actually picking up cocaine from the residence that was to be wiretapped. The
defendants assert that these false statements are material and that without their
inclusion probable cause did not exist. The defendants alternatively contend that even
if Source One did, at one time, indicate to the agents that she had personally
witnessed drug activity, the agents ignored her inconsistent statement that she did not
witness any drug activity, thereby omitting concerns about her veracity and
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reliability.3
By presenting evidence that Source One did not actually witness any drug
activity, the defendants met the first burden required in the preliminary showing
necessary to obtain a Franks hearing, that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included in the affidavit.
However, because the affidavit's remaining content is sufficient to establish probable
cause, the district court did not err in refusing to grant the Franks hearing. Even
omitting the two paragraphs that describe Source One’s personal observation of drugs
and adding statements that she was a paid informant who escaped prosecution as a
result of her information, the affidavit contained ample information for the court to find
probable cause to support a wiretap order. The affidavit contained numerous
paragraphs depicting conversations that Source One heard describing drug activity and
transactions, including conversations that took place over the phone line in question.
Additionally Source One described the logistics of the drug operation, detailing the
structure of the conspiracy and explaining how drugs were transported from California
to Nebraska.
The affidavit also included the statements of Terry Ford, Joyce French, and
another confidential informant known as Source Two. These sources provided
additional information about the drug conspiracy including how the drugs were
3
The defendants also challenge several other omissions and allegedly false
statements in the affidavit including that the affidavit did not report that Source One
was a paid informant who avoided prosecution by virtue of her testimony, that
Source One heard that Milton was supposed to be in the real estate business, and
that the phone line to be tapped had been disconnected for a time thereby preventing
its use to facilitate drug deals. Even considered cumulatively with the statements
concerning whether Source One actually saw drugs, we find no error in the district
court’s decision to deny the motion for a Franks hearing because these statements
and omissions do not rob the affidavit of its ability to provide probable cause.
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transported to Omaha, where they were stored in Omaha, and specific information
about the activities of individual members of the conspiracy. When this information
is combined with that provided by Source One and the agents’ surveillance of the
residence and pen register information, a judge could have found that the affidavit
provided probable cause to believe that a crime was being committed, the residence
in question was being used to facilitate the crime and that interception of wire
communications from this residence would provide evidence of the crime. We find
no abuse of discretion in the district court’s ruling that the defendants had not made
the substantial preliminary showing required for a Franks hearing.
D. Sentencing Issues
I. Milton
Milton was sentenced to 360 months imprisonment. He contends that the court
erroneously enhanced his sentence calculation by four points for his role in the
conspiracy as an organizer or leader under U.S.S.G. § 3B1.1(a). The probation officer
who prepared Milton’s presentence report recommended a role enhancement, but both
Milton and the government objected to this finding because the government had
agreed, as part of Milton’s plea agreement, that it would not seek a role enhancement.
The district court overruled the objections of both parties and agreed with the
probation officer, finding the evidence of Milton’s role as a leader to be sufficient to
apply the 3B1.1 enhancement.
Milton asserts that the court’s action was an abuse of discretion because the
government bears the burden of proof on role enhancements. Objections to a finding
contained in a presentence report require the government to present further evidence
as to why the finding is warranted. In this case the government presented no such
evidence. However, the district court found, after independently considering the
evidence presented at the sentencing hearing, that Milton was indeed an organizer or
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leader of the conspiracy and that the conspiracy consisted of at least five people.
Nothing in the guidelines prevents a court from using its discretion to determine that
sufficient evidence exists to support an enhancement when that enhancement is
recommended in a presentence report. Cf. U.S. v. Adipietro, 983 F.2d 1468, 1473
(8th Cir. 1993) (presentence report provided adequate notice that the court might sua
sponte enhance the sentence for the defendant’s role as a supervisor); U.S. v. Adams,
938 F.2d 96, 99 (8th Cir. 1991) (holding that the government is not required to give
defendant notice of enhancement where the presentence report identified the
enhancement as applicable and calculated a guideline sentencing range using that
section). In this case the district court made the proper findings of fact required by the
guidelines to enhance Milton’s sentence for his role as a supervisor. See U.S.S.G. §
3B1.1(a) & comment. Because these findings are not clearly erroneous and are
supported by the evidence, we find no error in the court’s decision to enhance
Milton’s sentence for his role as a leader.
Milton also contests other aspects of his sentence including his classification
as a career offender and the drug amount attributed to him. Neither of these
contentions has merit. The district court made specific findings of fact regarding
Milton’s career offender status and the amount of drugs it attributed to him. It found
that Milton had the requisite two separate felony convictions to make him a career
offender.4 The district court also found that sufficient evidence existed to attribute a
substantially larger amount of drugs to Milton than the two kilograms upon which he
was sentenced. Because neither of these findings was clearly erroneous, we affirm
Milton’s sentence.
4
Milton’s contention that his two prior felony convictions were not separate
has no merit despite the fact that the two offenses, which were committed more than
a year apart, were joined in 1990 for the purpose of a probation revocation
proceeding. The district court properly considered these two offenses as separate
under U.S. v. Jones, 87 F.3d 247, 248 (8th Cir.)(rejecting a similar argument), cert.
denied, 117 S. Ct. 374 (1996).
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(ii) Mitchell
Jeffrey Mitchell challenges several aspects of his sentence but because we
vacate his sentence as erroneously based on an improper amount of drugs we reach
only that issue.
Mitchell asserts that the sentencing court erred by attributing more than 1.5
kilograms of crack cocaine to him and calculating his base offense level at a 38. After
examining the record, we agree. In determining Mitchell’s base offense level, the
court attributed to Mitchell one kilogram of crack cocaine from a transaction that
supposedly took place in January of 1996. According to the district court Leon Milton
gave this kilogram to Kevin Jameson in the presence of Jeffrey Mitchell. However,
in its case against Derek Vernon, one of Mitchell’s co-conspirators, the government
offered a written stipulation of fact stating that Leon Milton was absent from the state
of Nebraska at all times during the month of January 1996.5 According to this
stipulated fact, the transaction involving one kilogram of crack attributed to Mitchell
could not have taken place.
"Where there is no drug seizure or the amount seized does not reflect the scale
of the offense, the court shall approximate the quantity of the controlled substance."
U.S. v. Brown, 19 F.3d 1246, 1248 (8th Cir. 1994)(citing U.S.S.G. § 2D1.1,
5
Vernon was a co-defendant of the appellants who was indicted at the same
time and whose case was joined with theirs. The written stipulation of fact in
question was submitted in Vernon’s case after Mitchell filed his notice of appeal.
Mitchell moved this court to supplement the record on appeal with this stipulation
document. The motion was carried with the case. The government concedes in its
brief that the stipulation contradicts the district court’s finding of fact and that the
drug transaction attributed to Mitchell in January 1996 could not have happened.
Therefore, we grant Mitchell’s motion to supplement the record with the Vernon-
government stipulation.
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comment. (n. 12);. Although the government bears the burden of establishing quantity,
in approximating amount the court can rely upon an estimate of drug quantity that has
sufficient accuracy. See U.S. v. Logan, 54 F.3d 452, 455 (8th Cir. 1995); U.S. v.
Wayne, 903 F.2d 1188, 1197 (8th Cir. 1990). We review the district court's
determination of a drug quantity for sentencing purposes for clear error. U.S. v. Ayers,
138 F.3d 360, 363 (8th Cir. 1998)(citing 18 U.S.C. § 3742(e)).
In this case the district court’s determination of drug amount was clearly
erroneous because it contradicted facts that were stipulated to by the government and
a party. The district court specifically stated that it found only two instances where
an amount of crack cocaine present was attributable to Mitchell. Because one of those
instances is not supported by the evidence and contradicts the factual record, we must
vacate Mitchell’s sentence and remand this case for a new sentencing hearing. See
U.S. v. Magee, 19 F.3d 417, 423 (8th Cir. 1994)(vacating and remanding sentence
where it could find no adequate basis for amount attributed to defendant); U.S. v.
Simmons, 964 F.2d 763, 776-77 (8th Cir. 1992)(vacating sentence where evidence
relied upon to establish amount was unreliable).
III. Conclusion
We affirm the judgment of conviction for all appellants and affirm Leon
Milton’s sentence. We vacate Jeffrey Mitchell’s sentence and remand his case to the
district court for resentencing.
A true copy
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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