United States v. Davis

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 7, 2005
_____________________
Charles R. Fulbruge III
No. 03-30918 Clerk
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY DAVIS, also known as Fat, also known as 10th Ward Fat,
also known as Project Fat, also known as Black;
RICHARD PORTER, also known as Whop,
Defendants - Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
District Court Cause No. 00-CV-255
_________________________________________________________________
Before GARWOOD, JONES and PRADO, Circuit Judges.
PRADO, Circuit Judge.*
This appeal arises from the convictions of Johnny Davis and
Richard Porter for several offenses. The indictment charged
Davis and Porter with conspiring to distribute heroin and use
firearms in connection with drug trafficking activities. In
addition, the indictment charged Porter with using a firearm to
commit murder during the course of a drug trafficking conspiracy
and charged Davis with four instances of using a firearm to
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
commit murder in the course of a heroin trafficking conspiracy.
The indictment also charged Davis and Porter with other firearms
offenses. The government sought the death penalty against Davis.
A jury convicted Porter of all counts brought against him. The
jury convicted Davis of all counts brought against him except the
counts involving one of the murders and the possession of a
firearm on the date of that murder. The jury rejected the death
penalty for Davis. Davis and Porter challenge their convictions
in this appeal.
Motion to Suppress Wiretap Evidence
Part of the evidence the government used to connect Porter
and Davis to the drug conspiracies and the shootings consisted of
telephone conversations obtained by wiretaps. Prior to trial,
Davis and Porter moved to suppress the wiretap evidence. Davis
and Porter argued that the wiretaps were unlawful under the plain
language of federal and then-applicable state law because the
applications for the wiretaps were signed by an assistant in the
office of the Louisiana Attorney General, rather than the
Attorney General himself. The district court determined the
wiretaps were lawfully obtained because Louisiana law did not
expressly prohibit delegation of authority to sign wiretap
applications and admitted evidence obtained from the wiretaps
during trial. On appeal, Davis and Porter challenge the district
court’s conclusion that the wiretaps were lawful. Davis and
2
Porter maintain that federal law allows wiretap authorization by
a state’s principal prosecuting attorney, but that it does not
permit an assistant attorney general to sign a wiretap
application. This court reviews the district court’s conclusion
de novo.1
Federal law governs the admissibility of state-authorized
wiretap evidence in federal criminal cases.2 The federal statute
for state wiretaps provides as follows:
The principal prosecuting attorney of any State, or the
principal prosecuting attorney of any political
subdivision thereof, if such attorney is authorized by
a statute of that State to make application to a State
court judge of competent jurisdiction for an order
authorizing or approving the interception of wire,
oral, or electronic communications, may apply to such
judge for . . . an order authorizing, or approving the
interception of wire, oral, or electronic
communications by investigative or law enforcement
officers having responsibility for the investigation of
the offense as to which the application is made. . . .3
This court previously determined the purpose of the provision
naming the “principal prosecuting attorney”:
was not to designate a particular officer by name or
title but to ensure the centralization of policy
decisions of this type at the highest practicable
levels . . . [and] “to provide for the centralization
of policy relating to statewide law enforcement in the
area of the use of electronic surveillance in the chief
1
See United States v. Edwards, 303 F.3d 606, 619 (5th Cir.
2002).
2
See United States v. Nelligan, 573 F.2d 251, 253 (5th Cir.
1978).
3
18 U.S.C. § 2516 (emphasis added).
3
prosecuting officer of the State.”4
The court explained that state law defines the state’s chief
prosecuting officer for the purpose of applying for a wiretap.5
Louisiana law designates the criminal division of
Louisiana’s Department of Justice as responsible for “criminal
prosecution”6 and names the Attorney General as the executive
head and chief administrative officer of the department.7 Thus,
the Louisiana Attorney General serves as the state’s chief
prosecuting attorney. The question remains, however, whether
Louisiana has authorized only the Attorney General to apply for
wiretaps.
At the time the assistant attorney general signed the
application questioned here, section 1308 of Louisiana’s
electronic surveillance statute authorized the “attorney general,
with the approval of the district attorney in whose district the
interception of wire or oral communications shall take place,” to
apply for a wiretap.8 The Louisiana legislature amended the
4
United States v. Pacheco, 489 F.2d 554, 562 (5th Cir. 1974)
(quoting S. REP. NO. 90-1097, reprinted in 1968 U.S.C.C.A.N. 2112,
2187).
5
See Pacheco, 489 F.2d at 562.
6
LA. REV. STAT. ANN. § 36:704E (West Supp. 2004).
7
See id. § 36:701B.
8
1995 La. Sess. Law Serv. 1130 (West) (recording the
enactment of the Wire or Oral Communications—Authorization for
Interception—Evidence of Additional Offenses Act).
4
statute the following year to expressly authorize the “attorney
general, or the deputy or any assistant attorney general acting
pursuant to the authorization of the attorney general” to apply
for a wiretap.9 Davis and Porter contend the amendment indicates
Louisiana’s intent to expand the persons who can apply for a
wiretap, and that at the time the challenged applications were
signed, Louisiana did not permit an assistant attorney general to
sign the applications. The amendment, however, is more
appropriately viewed as a clarification of Louisiana law.
Louisiana’s laws of statutory construction require courts to
interpret laws of the same subject matter in reference to each
other.10 Where two statutes deal with the same subject matter,
courts must harmonize the statutes to the extent possible.11
With respect to the duties and responsibilities of the Attorney
General, Louisiana law indicates that the state permitted an
assistant attorney general to apply for a wiretap before section
1308 was amended. Specifically, state law provides that the
functions of the Attorney General shall be executed by the
“offices and officers” of the state Department of Justice.12
9
2002 La. Sess. Law Serv. 128 (West)(reporting the creation
of the Louisiana Anti-Terrorism Act).
10
See La. Municipal Ass’n, Parish of Jefferson v. Louisiana,
No. 04-CA-0227, 2005 WL 106494, at *13 (La. Jan. 9, 2005).
11
See La. Municipal Ass’n, No. 04-CA-0227, 2005 WL 106494,
at *3.
12
See LA. REV. STAT. ANN. § 36:701B (West Supp. 2004).
5
Louisiana law designates the heads of each division within the
Department of Justice as officers of the department.13
In this case, the assistant attorney general who signed the
challenged wiretap applications was the head of the criminal
division and was thus an “officer” of the Louisiana Department of
Justice within the meaning of Louisiana law. Reading these
provisions together with section 1308 which defines a particular
Attorney General function—applying for a wiretap—indicates
Louisiana permitted the assistant attorney general who headed the
criminal division to apply for a wiretap before section 1308 was
amended. Because no question exists about whether the assistant
attorney general who signed the challenged applications here
acted under the authority of the Attorney General, this court
concludes that the wiretaps were lawful even though the assistant
attorney general in charge of the criminal division signed the
applications.
Davis and Porter also complain that the wiretaps were
unlawful because Louisiana law does not permit private
contractors to monitor wiretapped communications. After the
wiretaps were approved, the Drug Enforcement Agency hired private
contractors who worked for a company called Lafayette Group to
monitor the wiretaps. The Lafayette Group is mostly comprised of
13
See id. § 36:701E(1) (naming officers of the department as
the attorney general, the chief deputy attorney general, and the
directors of the divisions of the department).
6
retired law enforcement officers. The contractors monitored and
transcribed intercepted conversations under the supervision of
Louisiana law enforcement officers. Because the Lafayette Group
monitored the wiretaps, Davis and Porter maintain that the
wiretaps were unlawful and that the district court erred by
admitting the evidence obtained from the wiretaps.
Federal law governs the admissibility of state-authorized
wiretap evidence in federal court.14 State-authorized wiretaps
must comply with federal and state law.15 Here, no question
exists about whether the wiretaps complied with federal law
because the federal wiretap statute expressly authorizes the use
of a government contractor to intercept a wiretap.16 Unlike the
federal statute, the Louisiana wiretap statute does not
specifically authorize government contractors to intercept
wiretaps. Instead, the Louisiana electronic surveillance statute
provides for “an order authorizing or approving the interception
of wire or oral communications by an investigative or law
enforcement officer having responsibility for the investigation
14
See Nelligan, 573 F.2d at 253-54.
15
See 18 U.S.C. § 2516(2) (requiring compliance with state
law).
16
See 18 U.S.C. § 2518(5)(stating that a government
contractor acting under the supervision of an investigative or
law enforcement officer may intercept wiretaps).
7
of the offense as to which the application is made.”17 The
statute defines “investigative or law enforcement officer,” in
part, as a “commissioned state police officer.”18 Davis and
Porter rely on this definition to support their argument that
Louisiana law permits only commissioned state police officers to
monitor wiretaps.
Two Louisiana courts of appeal have affirmed convictions in
which wiretap evidence gathered by the Lafayette Group was
used.19 Those decisions indicate that Louisiana law permits law
enforcement officers to use private contractors to monitor state
wiretaps. In one of those decisions, a Louisiana court of
appeals rejected the argument that Davis and Porter advance
here.20 Even if using the Lafayette Group was improper under
Louisiana law, using private contractors to monitor wiretaps
would constitute a mere technical violation of the Louisiana
electronic surveillance statute and does not require the
17
LA. REV. STAT. ANN. § 15:1308A (West Supp. 2004) (emphasis
added).
18
Id. § 15:1302(12).
19
See State v. Esteen, 821 So. 2d 60, 72, 79 (La. App. 5
Cir. 2002) (affirming convictions without addressing the
propriety of the use of the Lafayette Group); State v. Sterling,
825 So. 2d 1279, 1290-94 (La. App. 4 Cir. 2002) (expressly
upholding the use of the Lafayette Group after extensive
analysis).
20
See Sterling, 825 So. 2d at 1290-94.
8
suppression of evidence under Louisiana law.21 This court
concludes that Louisiana law permits law enforcement to use a
private contractor, working under the supervision of a law
enforcement officer, to monitor a wiretap. Thus, the wiretaps
were lawful.
Because the wiretaps were lawful, the evidence obtained by
the wiretaps was admissible and the district court did not err by
denying the motion to suppress. Having made this determination,
the court need not address Davis’s and Porter’s other arguments
about the admissibility of the wiretap evidence as those
arguments are based on unlawful wiretaps.
Motion for Acquittal
The remaining arguments in this appeal apply only to Porter.
Porter first contends that the district court erred by denying
his motion for acquittal on counts 10 and 13. Count 10 alleged
that Porter used a firearm to shoot and kill Leonard Morgan
during the course of the heroin distribution conspiracy charged
in count 1. Count 13 alleged that Porter used a firearm to shoot
Shantell Blouin during the course of two crimes: the conspiracy
to distribute heroin charged in count 1 and the distribution of
crack cocaine charged in count 12. On appeal, Porter contends
21
See State v. Neisler, 666 So. 2d 1064, 1068 (La. 1996)
(treating police officers’ failure to present their informant to
the judge when obtaining the wiretap order, as required by the
Louisiana electronic surveillance statute, as a technical
violation that did not require suppression).
9
that there was insufficient evidence for the jury to convict him
of the firearms counts and that the district court should have
granted his motion for acquittal.
“A motion for a judgment of acquittal challenges the
sufficiency of the evidence to convict.”22 “The evidence is
sufficient if, drawing all reasonable inferences and credibility
determinations in the light most favorable to the prosecution, a
rational trier of fact could have found that the evidence
established the essential elements of the crime beyond a
reasonable doubt.”23 This court reviews the denial of a motion
for a judgment of acquittal de novo.24
Although Porter complains about insufficient evidence, the
government presented evidence that Porter ordered Morgan’s murder
from prison. Viewing the evidence in the light most favorable to
the prosecution, the evidence showed that Porter instructed Davis
to kill Morgan because Morgan was invading Porter’s heroin-
trafficking territory. In particular, Bruce Baker testified that
while he and Porter were incarcerated, Porter told him that he
wanted Timmy Carruth to kill Morgan, but that Carruth was taking
too long to do it, and therefore, he gave Davis the go ahead to
22
United States v. Medina, 161 F.3d 867, 872 (5th Cir.
1998).
23
United States v. Daniels, 281 F.3d 168, 178 (5th Cir.
2002).
24
See Medina, 161 F.3d at 872.
10
kill Morgan. Although Porter presented evidence that Carruth
killed Morgan, that evidence presented a different theory about
Morgan’s murder–that Carruth killed Morgan because of his own
conflict with Morgan. Choosing between these theories required
the jury to weigh the credibility of the witnesses. By
convicting Davis and Porter of Morgan’s murder, the jury rejected
Porter’s theory and accepted the government’s theory. Accepting
all credibility choices in favor of the jury's verdict,25
sufficient evidence supports the verdict on count 10.
Porter also complains that insufficient evidence exists that
he used a firearm in furtherance of cocaine distribution or
heroin trafficking to support count 13. Like his argument about
count 10, Porter’s argument rests on the jury’s credibility
determinations. The evidence presented two different theories
about why Porter shot Blouin: the government contended that
Porter wanted to prevent Blouin from revealing that Porter used
cocaine, thereby revealing Porter’s vulnerability to those who
wanted to move in on his heroin-distribution territory; Porter
contended that he shot Blouin to prevent her from revealing to
his child’s mother that he was trading cocaine with Blouin for
sex. Although the evidence in support of either theory was not
overwhelming, the jury chose the government’s theory and rejected
Porter’s theory. Accepting all credibility choices in favor of
25
See United States v. Johnston, 127 F.3d 380, 401 (5th Cir.
1997).
11
the jury's verdict,26 sufficient evidence supports the verdict on
court 13.
Motion to Sever
Porter next contends that the district court erred by
failing to sever counts 12 through 15 of the indictment. Counts
12 through 14 charged Porter with drug and weapons offenses in
connection with Blouin’s shooting. Count 15 charged Porter with
being a felon in possession of a weapon–the gun Porter possessed
when he was arrested for shooting Blouin. Before trial, Porter
moved to sever these counts. Porter argued that trying him on
these counts simultaneously with count 10, which involved the
murder of Leonard Morgan, would prejudice him. Porter also
argued that trying him on count 15 along with counts 1 through 3,
which charged him with participating in a drug conspiracy, would
prejudice him. The district court denied the motion because the
disputed counts were based on allegations of the same or similar
character as the alleged drug conspiracy and fell within the time
frame of the alleged conspiracy. On appeal, Porter maintains
that he was prejudiced by the inflammatory evidence of the
shooting of Blouin and the evidence that he was a gun-carrying
felon.
In reviewing the denial of a motion to sever, the court must
first determine whether the initial joinder of the counts was
26
See Johnston, 127 F.3d at 401.
12
proper under Rule 8(a) of the Federal Rules of Criminal
Procedure.27 Rule 8(a) provides as follows:
Two or more offenses may be charged in the same
indictment or information in a separate count for each
offense if the offenses charged, whether felonies or
misdemeanors or both, are of the same or similar
character or are based on the same act or transaction
or on two or more acts or transactions connected
together or constituting parts of a common scheme or
plan.28
Rule 14 further provides that if it appears that a defendant is
prejudiced by a joinder of offenses, the court may order a
separate trial of the counts.29 Thus, this court reviews the
denial of a motion to sever for an abuse of discretion.30 To
demonstrate an abuse of discretion, Porter must demonstrate a
“specific and compelling prejudice that resulted in an unfair
trial and such prejudice must be of a type against which the
trial court was unable to afford protection.”31
Here, the indictment alleges that Davis and Porter conspired
to distribute heroin and conspired to use and carry firearms to
further the heroin conspiracy, beginning July 28, 1998 and
continuing until October 12, 2001. Counts 12, 13, and 14 apply
27
See United States v. Holloway, 1 F.3d 307, 310 (5th Cir.
1993).
28
FED. R. CRIM. P. 8.
29
See FED. R. CRIM. P. 14(a).
30
See Holloway, 1 F.3d at 310.
31
See United States v. Pena-Rodriguez, 110 F.3d 1120, 1128
(5th Cir. 1997).
13
only to Porter and allege separate drug possession and firearm
counts that fall within the time frame of the heroin conspiracy.
Because these counts are alleged as part of a common scheme or
plan, the face of the indictment indicates joinder was proper.32
This court must also consider the “efficacy of the limiting
measures taken by the trial court [and] the strength of the
evidence of the defendant’s guilt”33 to determine if Porter was
prejudiced. Here, Blouin’s testimony that Porter shot her twelve
times without provocation, Dr. Robertson’s description of
Blouin’s injuries, and evidence that Porter had a gun when he was
arrested were clearly prejudicial. Despite this prejudicial
evidence, abundant evidence exists that Porter conspired to
distribute heroin and conspired to use and carry firearms to
further the heroin conspiracy. In addition, sufficient evidence
exists that Porter ordered the murder of Leonard Morgan. The
strength of evidence supporting the jury’s verdict of guilt on
counts 1 through 3 (drug conspiracy) and count 10 (the Morgan
murder) do not indicate that the district court abused its
discretion by not severing counts 12 through 15. At most, Porter
has shown a quantitative disparity in evidence and the
possibility of a spillover effect of Blouin’s and Dr. Robertson’s
testimony, neither of which, without more, warrants a
32
See FED. R. CRIM. P. 8.
33
United States v. McCarter, 316 F.3d 536, 538-39 (5th Cir.
2002).
14
severance.34 Furthermore, the district court protected Porter
against the spillover effect by instructing the jury to “give
separate consideration to the evidence as to . . . each of the
crimes charged.” The district court did not abuse its
discretion.
Double Jeopardy
Porter next complains that count 10 (the Morgan murder) and
count 13 (the Blouin shooting) charging the discharge of a
firearm during and in relation to the commission of a drug
trafficking crime are not based on separate drug trafficking
offenses and thus Porter argues that his sentences for those
counts violate the double jeopardy clause. In this circuit, each
firearms offense charged under 18 U.S.C. § 924(c) must be
sufficiently linked to a separate drug trafficking offense to
avoid violating double jeopardy principles.35 “The necessary
linkage between a firearms charge and a drug trafficking offense
is best accomplished by clearly identifying in the indictment the
drug offense supporting each firearms count.”36 This court
34
See United States v. Mitchell, 31 F.3d 271, 276 (5th Cir.
1994) (explaining that showing a quantitative disparity in the
evidence and the mere presence of a spillover effect does not
warrant severance).
35
See United States v. Baptiste, 309 F.3d 274, 279 (5th Cir.
2002).
36
United States v. Privette, 947 F.2d 1259, 1263 (5th Cir.
1991).
15
reviews double jeopardy claims de novo.37
Here, the indictment alleged in count 10 that Porter “did
knowingly carry and use a firearm . . . during and in relation to
the commission of a . . . conspiracy to possess with intent to
distribute heroin.” The indictment alleged in count 13 that
Porter “did knowingly use and carry . . . a firearm . . . during
and in relation to the commission of . . . distribution of
cocaine base (‘crack’) and conspiracy to possess with the intent
to distribute heroin.” The jury’s verdict and the court’s
instructions indicate that the jury found that count 10 (the
Morgan shooting) related to the heroin conspiracy charged in
count 1, and that count 13 (the Blouin shooting) related to the
heroin conspiracy charged in counts 1 and to the cocaine
distribution charged in count 12. As such, count 10 and 13 are
supported by more than one predicate drug trafficking offense.
Thus, double jeopardy principles were not violated.
Sentencing
As his last argument, Porter maintains that the district
court erred by sentencing him as a career criminal. Porter
complains that the district court determined that he was a career
criminal based on two armed robbery convictions. Porter
maintains that robbery convictions were part of a common scheme
37
See United States v. Gonzales, 40 F.3d 735, 737 (5th Cir.
1994).
16
or plan, and that although not formally consolidated for trial,
they were functionally consolidated. Thus, Porter argues, the
relatedness of these offenses precluded the career criminal
finding. Although Porter appears to understand that any error
will not decrease his sentence,38 he complains that the career-
criminal designation will negatively impact him while
incarcerated.
Section 4B1.1 of the United States Sentencing Guidelines
classifies a defendant as a career offender if the offense is a
crime of violence or controlled substance offense and the
defendant has at least two previous felony convictions for crimes
of violence or controlled substance offenses.39 The guidelines
instruct a sentencing judge to count as a single prior felony
conviction all those that are “related” to one another.40 The
court reviews the question of relatedness de novo,41 deferring to
the district court’s determination about whether the defendant’s
38
Porter was sentenced under the sentencing guidelines to
life for count 1; thus, designation as career criminal does not
increase his sentence.
39
See U.S.S.G. § 4B1.1.
40
U.S.S.G. § 4B1.2(c) & comment 3; § 4A1.2(a)(2).
41
See United States v. Huskey, 137 F.3d 283, 285 (5th Cir.
1998). Recently, the United States Supreme Court determined that
the courts of appeals review sentencing decisions for
unreasonableness. See United States v. Booker, 125 S. Ct. 738,
765-67 (2005). That determination does not appear to disturb
this circuit’s standard of review for determining whether two
prior convictions are related.
17
prior convictions were functionally consolidated for
sentencing.42
The commentary to the sentencing guidelines instructs that
“prior sentences are considered related if they resulted from
offenses that (1) occurred on the same occasion, (2) were part of
a single common scheme or plan, or (3) were consolidated for
trial or sentencing.”43 Porter contends that his robberies were
part of a single common scheme or plan because: the robberies
occurred a few blocks apart on the same morning, he targeted
pedestrians in both cases, he held up both victims at gunpoint,
and he was motivated by greed on both occasions. Crimes that are
merely similar are not necessarily related crimes.44 The words
“scheme” and “plan” imply intent and suggest that the prior
offenses were jointly planned, “or at least that it have been
evident that the commission of one would entail the commission of
the other as well.”45 “[A] common criminal motive or similar
modus operandi will not cause separate crimes to be related, nor
will crimes be related merely because they are committed to
achieve a common goal, such as the support of a drug habit or
42
See Buford v. United States, 532 U.S. 59, 64 (2001).
43
U.S.S.G. § 4A1.2, comment 3.
44
See United States v. Robinson, 187 F.3d 516, 519 (5th Cir.
1999).
45
Robinson, 187 F.3d at 520.
18
lifestyle.”46
Here, Porter robbed his first victim at 6:50 a.m. on April
20, 1990; he robbed the second victim on 10:25 a.m. on the same
day, nearly two blocks away. Porter was arrested for the 6:50
a.m. robbery after being identified by the victim. While he was
in jail on that charge, the victim of the 10:25 a.m. robbery
identified Porter in a photographic lineup. The Orleans Parish
District Attorney’s Office charged Porter with armed robbery in
two separate cases. Porter pleaded guilty to both offenses
before the same judge on December 10, 1990, and received two
concurrent sentences of ten years imprisonment. Despite the
similarities of the offenses, nothing indicates that Porter
engaged in any planning that indicated that the first robbery
would entail the second robbery. Instead of joint planning, the
offenses indicate that Porter robbed whomever he thought was an
easy target, and that each offense was motivated by the desire
for someone else’s money. Nothing shows that the offenses were
part of a single common scheme or plan. Accordingly, the
robberies were not related. Having made this determination, the
court need not consider Porter’s argument that the offenses were
functionally consolidated for trial. The district court did not
err by sentencing Porter as a career criminal.
Conclusion
46
Id. at 519 (internal citations omitted).
19
Having considered the arguments on appeal and determined
that the district court did not err, the court AFFIRMS the
judgments convicting and sentencing Davis and Porter.
AFFIRMED.
20