United States v. Brian K. Thompson ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3905
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Brian K. Thompson, also known as *
Brian Keith Thompson, *
*
Appellant. *
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Submitted: January 11, 2000
Filed: April 28, 2000
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Before WOLLMAN, Chief Judge, FLOYD R. GIBSON, and MURPHY,
Circuit Judges.
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WOLLMAN, Chief Judge.
Brian K. Thompson appeals from his conviction on numerous drug trafficking
and money laundering charges and from the resulting sentence imposed by the district
court.1 We affirm.
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
I.
Thompson’s conviction stems from an investigation by federal and state
authorities into a drug distribution and money laundering scheme centered in Kansas
City, Missouri. Authorities first learned of Thompson’s involvement in the scheme in
late 1994 through an undercover investigation conducted by Special Agent Albert
Pisterzi of the Federal Bureau of Investigation (FBI). Pisterzi discovered that
Thompson had been heavily involved in narcotics distribution since at least 1989 and
was currently distributing 10 to 50 kilograms of cocaine per month. Pisterzi also
obtained firsthand knowledge of Thompson’s drug activity, meeting with him several
times in 1994 to discuss drug transactions and purchasing cocaine from him in
November of that year.
Despite their knowledge of Thompson’s illicit conduct, authorities did not arrest
him in 1994. Instead, they continued to investigate Thompson and other suspected
drug traffickers in an attempt to ascertain the full extent of the conspiracy, using
physical surveillance, confidential informants, controlled drug buys, pen registers, and
other investigative techniques. On November 10, 1997, the FBI, believing that these
methods were insufficient to expose the full conspiracy, filed an application pursuant
to 18 U.S.C. § 2518 for an order authorizing the interception of communications made
on Thompson’s telephone. The district court2 issued the order, and over the next
several weeks the FBI recorded conversations between Thompson and other alleged
conspirators. Several of these discussions contained incriminating statements by
Thompson that were used against him at trial.
Apparently satisfied that they had exposed the entire conspiracy, authorities
arrested Thompson on December 12, 1997, citing his 1994 sale of cocaine to Pisterzi
2
The Honorable D. Brook Bartlett, late the Chief Judge, United States District
Court for the Western District of Missouri.
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as the basis for the arrest. Shortly thereafter, search warrants were executed at
Thompson’s residence, his mother’s residence, an automobile dealership with which
Thompson was affiliated, and three storage units controlled by Thompson. These
searches yielded numerous items of evidence, including large quantities of cocaine and
cash, numerous weapons, a drug scale, a currency counting machine, expensive
automobiles, jewelry, and other luxury items.
Thompson was charged with conspiracy to possess and distribute cocaine and
marijuana, five counts of distributing cocaine and marijuana, conspiracy to commit
money laundering, five counts of money laundering, one count of possessing a firearm
after a felony conviction, and one count of criminal forfeiture. Prior to trial, Thompson
moved to suppress the wiretap evidence and the evidence seized from storage unit J11,
one of the three storage units searched in December of 1997. The district court3 denied
the motions. On June 12, 1998, a jury found Thompson guilty on all counts. He was
sentenced to life imprisonment and was ordered to pay a special assessment of
$1,200,000 and a fine of $2,000,000.
II.
Thompson first contends that we should set aside his conviction on three of the
drug trafficking counts and all of the money laundering counts. He argues that the
district court erroneously denied his motions to suppress the wiretap evidence and the
evidence obtained from storage unit J11 and that, absent this evidence, there is
insufficient evidence to support his conviction on these counts. We review the district
3
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri. Judge Fenner adopted the recommendation and report of the
Honorable Robert E. Larsen, United States Magistrate Judge for the Western District
of Missouri, regarding the motion to suppress the wiretap evidence, and made
independent findings regarding the motion to suppress the storage unit evidence.
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court’s denial of a motion to suppress de novo, and its factual findings for clear error.
See United States v. Fairchild, 189 F.3d 769, 774 (8th Cir. 1999).
A. Wiretap Evidence
Thompson contends that the wiretap evidence should have been suppressed
because the application and affidavit used to secure the wiretap failed to establish the
necessity for the wiretap that 18 U.S.C. § 2518(1)(c) requires. Section 2518(1)(c)
provides that an application for an order authorizing a wiretap must include, among
other things, “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.” This requirement seeks to insure “that
wiretaps are not routinely employed as the initial step in an investigation,” United
States v. Maxwell, 25 F.3d 1389, 1394 (8th Cir. 1994) (quoting United States v.
Macklin, 902 F.2d 1320, 1326 (8th Cir. 1990)); it does not, however, require that law
enforcement officers “exhaust all possible techniques before applying for a wiretap.”
United States v. Shaw, 94 F.3d 438, 441 (8th Cir. 1996) (quoting Macklin, 902 F.2d
at 1326). The determination of the necessity for a wiretap is a finding of fact that is
reviewed for clear error. See Maxwell, 25 F.3d at 1394.
Our review of the supporting affidavit convinces us that the FBI’s wiretap
application satisfies both the letter and the spirt of section 2518(1)(c). The affidavit
recounts in detail the investigative procedures that authorities used during their two-
year investigation of the conspiracy and explains why each of those methods failed to
expose the full extent of the conspiracy. For example, the affidavit explains that
physical surveillance was largely futile because Thompson was adept at evading
authorities through the use of aliases and evasive driving tactics; pen registers were of
limited use because Thompson registered his telephones in fictitious names and
regularly changed telephone numbers; and cooperating informants were only minimally
effective because all but one had ceased providing new information and the remaining
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informant was unable to identify the primary drug supplier or other key conspirators.
The affidavit also explains why other traditional measures, such as grand jury
subpoenas and search warrants, were not used, stating that such methods were avoided
because of a fear that they would alert unknown conspirators to the investigation and
thus make them even more difficult to apprehend.
The affidavit therefore establishes that authorities had employed several
traditional investigative techniques for more than two years before applying for a
wiretap and that those methods were insufficient to reveal the full conspiracy or the
identity of several key conspirators. Such facts are sufficient to support a district
court’s finding of necessity under section 2518(1)(c). See Maxwell, 25 F.3d at 1394
(necessity requirement met where affidavit established that conventional investigative
procedures failed to reveal full conspiracy or sufficient evidence to prosecute identified
conspirators); United States v. Smith, 909 F.2d 1164, 1166 (8th Cir. 1990) (necessity
established where affidavit demonstrated that traditional procedures failed to expose
full extent of conspiracy and all conspirators); Macklin, 902 F.2d at 1327 (same);
United States v. O’Connell, 841 F.2d 1408, 1414-15 (8th Cir. 1988) (same).
Although Thompson correctly points out that many of the reasons given in the
affidavit for the ineffectiveness of traditional investigative techniques are common to
most drug conspiracy investigations, this fact does not necessarily preclude a finding
of necessity under section 2518(1)(c). See United States v. Milton, 153 F.3d 891, 895
(8th Cir. 1998). In Milton, which also involved a challenge to the necessity for a
wiretap used in a drug investigation, we noted that although the affidavit’s assertions
of inadequacy “might appear boilerplate, the fact that drug investigations suffer from
common investigatory problems does not make these problems less vexing.” Id. We
then concluded that, even though the recited investigatory problems were
unremarkable, the affidavit established necessity because it set forth in sufficient detail
why the traditional investigative techniques would not prove successful in the
circumstances presented by that case. See id.; see also Shaw, 94 F.3d at 441-42. The
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same is true of this case, as the affidavit describes with particularity how the
investigatory techniques traditionally used in drug investigations would not likely be
successful in the investigation of the Kansas City-based conspiracy. The district court
therefore did not clearly err in finding necessity under section 2518(1)(c).
B. Storage Unit Evidence
Thompson also contends that the district court erroneously failed to suppress
evidence that was seized from storage unit J11 pursuant to a warrant authorizing a
search of the storage unit and the seizure of a white 1992 Dodge minivan, a vehicle that
authorities had linked to the conspiracy. He argues that the warrant was invalid
because the affidavits submitted to secure the warrant specifically stated that the 1992
Dodge minivan was located in J11, while the evidence upon which this statement was
based, the testimony of Rick Jones, provided only that Jones saw Thompson drive a
“white minivan” into J11. Thompson contends that the affiants were not entitled to
infer that the vehicle referred to by Jones was the 1992 Dodge minivan and that absent
this inference there was no probable cause to search storage unit J11, i.e., there was no
reason to believe that J11 contained the 1992 Dodge minivan or any other contraband
or evidence.
A warrant is supported by probable cause if “‘there is a fair probability that
contraband or evidence of a crime will be found’ in the place to be searched.” United
States v. Mahler, 141 F.3d 811, 813 (8th Cir. 1998) (quoting Illinois v. Gates, 462 U.S.
213, 238 (1983)). Although it is well established that a judge may draw reasonable
inferences from the totality of the circumstances in determining whether probable cause
exists to issue a warrant, see United States v. Sundby, 186 F.3d 873, 875-76 (8th Cir.
1999); Mahler, 141 F.3d at 814, we have also recognized that law enforcement officers
may make reasonable inferences in preparing affidavits in support of a warrant, see
United States v. Callison, 577 F.2d 53, 54-55 (8th Cir. 1978) (upholding search warrant
based on affidavit of officer who reasonably inferred that defendant whose car was
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searched was a robbery suspect); cf. United States v. Fahsi, 102 F.3d 363, 365 (8th Cir.
1996) (officers’ determination of probable cause to make warrantless arrest “requires
officers to make reasonable inferences from facts known to them”); United States v.
Sherrill, 27 F.3d 344, 347 (8th Cir. 1994).
After reviewing the information that was available to the affiants at the time they
prepared their supporting affidavits, we are satisfied that it was reasonable for the
affiants to infer that the 1992 Dodge minivan was located in storage unit J11.
According to the affidavits, authorities obtained a seizure warrant on December 12,
1997, for a white 1992 Dodge minivan they had substantial reason to believe was
involved in the conspiracy. Three days later, authorities interviewed Jones, a known
associate of Thompson, who stated that Thompson often used J11 to store vehicles and
that he had seen Thompson park a white minivan in that facility two weeks earlier.
That same day, the manager of the storage facility stated that J11 was leased to Darrell
Bostic, which authorities knew to be an alias used by Thompson, and that J11
contained a vehicle at that time. Thus, because a white 1992 Dodge minivan was
linked to the conspiracy and because Thompson, an integral member of that conspiracy,
was seen parking a white minivan in storage space J11, it was reasonable for the
affiants to infer that these two vehicles were one and the same.
We therefore conclude that Thompson’s motions to suppress evidence were
properly denied and that his conviction on the challenged counts must thus stand.
III.
Thompson also challenges his sentence, contending that the district court
improperly enhanced his offense level for his role in the offense, obstruction of justice,
and the possession of a firearm in connection with a drug offense. These enhancements
are based upon findings of fact, which we review for clear error. See United States v.
Baker, 200 F.3d 558, 562 (8th Cir. 2000) (obstruction of justice); United States v.
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Hernandez, 187 F.3d 806, 808 (8th Cir. 1999) (possession of a firearm); United States
v. Simmons, 154 F.3d 765, 768 (8th Cir. 1998) (role in the offense).
A. Role in the Offense
Thompson first challenges the district court’s enhancement for his role in the
offense. The court found that Thompson was an “organizer or leader of a criminal
activity that involved five or more participants” and therefore imposed a four-level
enhancement pursuant to U.S.S.G. § 3B1.1(a). Thompson contends that such an
enhancement was erroneous because there was insufficient evidence presented at trial
from which the court could conclude that he was an organizer or leader of the
conspiracy or any other criminal activity.
“The terms ‘organizer’ and ‘leader’ are to be broadly interpreted.” United States
v. Guerra, 113 F.3d 809, 820 (8th Cir. 1997). Although an individual in a drug
conspiracy must do more than sell drugs for resale in order to be deemed an organizer
or leader, he need not directly control his co-conspirators. See id. Among the factors
to be considered in making this determination are the defendant’s decision-making
authority, the nature of his participation in the crime, whether he recruited accomplices,
the degree of his participation in organizing the offense, and his control and authority
over others. See U.S.S.G. § 3B1.1, comment. (n.4); United States v. Rodriguez, 112
F.3d 374, 377 (8th Cir. 1997).
The evidence established that Thompson played a key role in both the channeling
of vast quantities of drugs into Kansas City and the distribution of those drugs to
various dealers within the city. To promote the influx of narcotics into Kansas City,
Thompson traveled to Texas to recruit a supplier, regularly organized the transport of
large drug shipments from Texas, and often received and stored such shipments. To
facilitate the distribution of drugs in Kansas City, Thompson provided drugs to dealers
on credit so that they could sell without first buying the drugs themselves, recruited at
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least one person to deliver cocaine to those dealers, and controlled the price of the
drugs he sold. In light of this evidence, there is no clear error in the district court’s
finding that Thompson was an organizer or leader of the conspiracy. See United States
v. Brown, 148 F.3d 1003, 1005-06, 1008 (8th Cir. 1998) (defendant who coordinated
purchase of drugs from suppliers and managed finances of drug conspiracy was
organizer or leader); United States v. Knight, 96 F.3d 307, 310 (8th Cir. 1996)
(defendant who was “key link” between drug suppliers and distributors, stored drug
shipments, set prices, and had others deliver drugs on his behalf was organizer or
leader).
B. Obstruction of Justice
Thompson also contends that the district court improperly imposed a two-level
enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Application note
4(a) of section 3C1.1 provides that a defendant’s “threatening, intimidating, or
otherwise unlawfully influencing a co-defendant, witness, or juror, directly or
indirectly, or attempting to do so” warrants an enhancement for obstruction of justice.
U.S.S.G. § 3C1.1, comment. (n.4(a)). “[A]n attempt to intimidate or threaten a
witness, even if unsuccessful, is sufficient to sustain a two-level enhancement for
obstruction of justice.” United States v. Moss, 138 F.3d 742, 746 (8th Cir. 1998).
The presentence investigation report and the evidence adduced at trial reveal that
Thompson directed acts of intimidation toward two prosecution witnesses, Michael
Toner and Fred Rice. Prior to trial, Thompson telephoned Toner and demanded that
Toner swear on the lives of his children that he had not cooperated with authorities.
Thompson also warned Toner that he could expect a visit from Thompson once he was
released from jail. At trial, Thompson directed similar threats to Rice, calling Rice
derogatory names and making a throat-cutting gesture while Rice was testifying. The
district court interpreted these acts as attempts to impermissibly influence or intimidate
under section 3C1.1, and we cannot say that such a finding was clearly erroneous. See
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Moss, 138 F.3d at 745-46 (defendant’s “cutthroat” gesture to witness during trial was
obstruction of justice); United States v. Nunn, 940 F.2d 1128, 1133 (8th Cir. 1991)
(telephone threat made to a potential witness constituted obstruction of justice).
C. Possession of a Firearm
Finally, Thompson argues that the district court erroneously imposed a two-level
increase to his base offense level pursuant to U.S.S.G. § 2D1.1(b)(1), which provides
for such an increase where a defendant possessed a firearm in connection with a drug
offense. For this provision to apply, the government must “prove by a preponderance
of the evidence that a weapon was present and that it was at least probable that the
weapon had a nexus with the criminal activity.” United States v. Newton, 184 F.3d
955, 957 (8th Cir. 1999). A nexus exists where there is a “temporal and spatial relation
between the weapon, the drug trafficking activity, and the defendant.” Id. at 958.
The record is replete with evidence that weapons played a role in Thompson’s
drug activity, including testimony that on two occasions Thompson possessed a firearm
while he was actively engaged in drug transactions. In 1994, during the negotiation of
a drug sale with Pisterzi, Thompson told the FBI agent that he was carrying a handgun
and then patted his left hip to indicate its location. Two years later, Thompson fired
a shotgun into the air while transferring drugs to one of his distributors. In light of this
evidence, the district court did not clearly err in finding a sufficient nexus between
Thompson’s drug activity and firearms so as to make section 2D1.1(b)(1) applicable.
The judgment and sentence are affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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