United States v. Ernest Glover

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 13, 2012 Decided June 5, 2012
No. 08-3082
UNITED STATES OF AMERICA,
APPELLEE
v.
ERNEST MILTON GLOVER,
APPELLANT
Consolidated with 08-3083, 08-3084
Appeals from the United States District Court
for the District of Columbia
(No. 1:07-cr-00152)
Jenifer Wicks, Allen H. Orenberg, appointed by the court,
and Marcia G. Shein argued the causes for appellants Glover,
Suggs, and Price, respectively, and filed the briefs for
appellants.
Patricia A. Heffernan, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III, John K.
Han, and Anthony Scarpelli, Assistant U.S. Attorneys. Mary
B. McCord, Assistant U.S. Attorney, entered an appearance.
2
Before: HENDERSON, BROWN, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Ernest Glover, Anthony
Suggs, and Helery Price were convicted for their roles in a
PCP-distribution enterprise. We affirm the judgments of
conviction.
I
In 2007, the Federal Bureau of Investigation and the
Metropolitan Police Department conducted a joint
investigation of a PCP-distribution conspiracy operating in
the District of Columbia. Investigators obtained approval
from a federal district judge to wiretap Suggs’s cell phone.
Investigators also obtained a search warrant from a D.C.
Superior Court judge and searched Suggs’s house pursuant to
that warrant. Glover, Suggs, and Price were ultimately
arrested and indicted. A federal jury found Glover, Suggs,
and Price guilty of a PCP-distribution conspiracy offense. See
21 U.S.C. § 846. The jury also found Suggs guilty of
unlawful possession with intent to distribute PCP. See 21
U.S.C. § 841(a)(1), (b)(1)(A)(iv). The District Court
sentenced Glover and Price to life imprisonment for the
conspiracy offense and sentenced Suggs (who did not have
quite as extensive a prior felony drug record as Glover and
Price) to two 20-year terms for the conspiracy and possession
with intent to distribute offenses.
3
II
Defendants challenge their convictions on various
grounds. We find none of their arguments convincing.
A
Before trial, Price moved under Federal Rule of Criminal
Procedure 14 to sever his trial from that of his co-defendants.
The District Court denied the motion.
On appeal, Price asserts that he should have been tried
separately because there was less evidence against him than
against co-defendants Glover and Suggs. We review for
abuse of discretion a district court’s denial of a motion to
sever. See United States v. Celis, 608 F.3d 818, 844 (D.C.
Cir. 2010).
In interpreting Rule 14, the Supreme Court has stated that
joint trials “‘play a vital role in the criminal justice system’”;
they “promote efficiency and ‘serve the interests of justice by
avoiding the scandal and inequity of inconsistent verdicts.’”
Zafiro v. United States, 506 U.S. 534, 537 (1993) (quoting
Richardson v. Marsh, 481 U.S. 200, 209, 210 (1987)). A
defendant is therefore not entitled to severance under Rule 14
unless there is “a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt
or innocence.” Zafiro, 506 U.S. at 539.
Here, there was no such “serious risk.” The Government
presented extensive evidence not just against Glover and
Suggs but also against Price, including numerous wiretapped
conversations. Moreover, the District Court instructed the
jury to consider each defendant’s guilt or innocence
4
separately based on the evidence pertaining to that defendant.
As this Court has said, jury instructions of that sort mitigate
the potentially negative impact of a joint trial. See United
States v. Moore, 651 F.3d 30, 95 (D.C. Cir. 2011) (“absent a
dramatic disparity of evidence, any prejudice caused by
joinder is best dealt with by instructions to the jury to give
individual consideration to each defendant”) (brackets and
citation omitted).
In short, the District Court did not abuse its discretion by
denying Price’s motion to sever.
B
In searching Suggs’s house pursuant to a search warrant
that was issued by a D.C. Superior Court judge, law
enforcement officers recovered 13 bottles of PCP, containing
a total of 7.7 kilograms of PCP. The officers also seized four
buckets with PCP residue, a measuring cup, a funnel, air
freshener, $7,000 in cash, and a corresponding cash
withdrawal receipt signed “Anthony M. Suggs.”
Before trial, Suggs moved to suppress the evidence
seized from his house. The District Court denied the motion.
On appeal, Suggs raises two alternative arguments that
the District Court erred in denying his suppression motion: (1)
the law enforcement officers’ initial entry into his house was
warrantless; and (2) the affidavit in support of the search
warrant issued by the D.C. Superior Court judge did not
establish probable cause. On those issues, we review the
District Court’s legal conclusions de novo and its factual
findings for clear error. See United States v. Bailey, 622 F.3d
1, 5 (D.C. Cir. 2010).
5
1
While listening by wiretap to one of Suggs’s cell phone
conversations, law enforcement officers learned that an odor
consistent with PCP was emanating from Suggs’s house. Law
enforcement and fire department personnel then went to the
exterior of Suggs’s house. Investigator Eames of the
Metropolitan Police Department smelled an odor consistent
with PCP. Before the law enforcement officers obtained a
search warrant, law enforcement and fire department
personnel entered Suggs’s house and looked around to make
sure that no evidence was destroyed and that there was no fire
or hazardous materials risk. The officers seized no evidence
at that time.
The law enforcement officers sought a search warrant.
Investigator Kyle of the Metropolitan Police Department
prepared the supporting affidavit. The affidavit did not rely
on what the officers observed during their initial entry into
Suggs’s house. Rather, the affidavit stated among other
things that while outside Suggs’s house, Investigator Eames
smelled an odor consistent with PCP coming from the house.
A D.C. Superior Court judge issued a search warrant. Acting
pursuant to the search warrant, the officers then seized
evidence from Suggs’s house.
Suggs contends that the law enforcement officers’ initial
entry into his house was unlawful and that the evidence later
seized from his house therefore should have been suppressed.
But even assuming for the sake of argument that the initial
entry was unlawful, evidence subsequently seized pursuant to
a valid search warrant is admissible when “there was an
independent source for the warrant under which that evidence
was seized.” Segura v. United States, 468 U.S. 796, 814
(1984). Here, the officers had such an independent source –
6
namely, before the law enforcement officers’ initial entry into
Suggs’s house, Investigator Eames detected an odor
consistent with PCP coming from the house. Suggs thus
cannot use the initial entry as the hook to suppress evidence
later seized pursuant to a valid and independently obtained
search warrant. See id. at 813-14; see also Hudson v.
Michigan, 547 U.S. 586 (2006); Murray v. United States, 487
U.S. 533 (1988).
2
Suggs also challenges the issuing judge’s probable-cause
determination and on that basis says that the evidence seized
from his house should have been excluded.
The Fourth Amendment provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation.” U.S. CONST. amend. IV. When police obtain
evidence by way of an unlawful search, the exclusionary rule
may require exclusion of that evidence in some
circumstances. As the Supreme Court has instructed,
however, the exclusionary rule has limited force in cases
involving a search with a search warrant. In particular,
reviewing courts may not exclude evidence “when an officer
acting with objective good faith has obtained a search warrant
from a judge or magistrate and acted within its scope.”
United States v. Leon, 468 U.S. 897, 920 (1984). The reason
is evident: “In the ordinary case, an officer cannot be
expected to question the magistrate’s probable-cause
determination or his judgment that the form of the warrant is
technically sufficient.” Id. at 921. The “exclusionary rule
was adopted to deter unlawful searches by police, not to
punish the errors of magistrates and judges.” Massachusetts
v. Sheppard, 468 U.S. 981, 990 (1984) (citation omitted). In
this case, therefore, even assuming that probable cause was
7
lacking for the search warrant – which is not in any way clear
– the evidence seized from Suggs’s house was properly
admitted under Leon.
To get around Leon, Suggs invokes one of the recognized
exceptions to the Leon principle. Under Leon, suppression
“remains an appropriate remedy if the magistrate or judge in
issuing a warrant was misled by information in an affidavit
that the affiant knew was false or would have known was
false except for his reckless disregard of the truth.” Leon, 468
U.S. at 923 (citing Franks v. Delaware, 438 U.S. 154 (1978)).
In the affidavit here, Investigator Kyle stated that
Investigator Eames had smelled an odor consistent with PCP
coming from Suggs’s house. According to Suggs,
Investigator Eames lied. But the District Court specifically
believed Investigator Eames on that point. Suggs presents no
persuasive basis for us to disturb the District Court’s
credibility finding.
Suggs separately asserts that the affidavit improperly
failed to disclose the wiretapped conversation that initially
prompted officers to head to Suggs’s house. For an omission
to meet the Franks standard, the officer must at least have
knowingly and intentionally (or with reckless disregard)
omitted a fact that would have defeated probable cause. See
United States v. Spencer, 530 F.3d 1003, 1007 (D.C. Cir.
2008); 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 4.4(b),
at 543-46 (4th ed. 2004). But here, including information
about the wiretapped conversation would only have
strengthened the case for probable cause. So the argument
fails.
Suggs also contends that the warrant affidavit improperly
failed to disclose that law enforcement and fire department
8
personnel had already entered Suggs’s house without a
warrant. But that fact was not relevant to the probable cause
determination. The question was whether the detection of an
odor consistent with PCP by a trained law enforcement officer
established probable cause for the search warrant.
C
Before trial, defendants moved to suppress the recordings
obtained from the wiretap on Suggs’s cell phone. The District
Court denied the motion.
On appeal, defendants contend that the District Court
erred in denying their suppression motion for any of three
alternative reasons: (1) extension of the wiretap beyond the
initial 30-day period did not satisfy the statutory necessity
requirement; (2) the law enforcement officers’ minimization
efforts were not reasonable; and (3) the wiretap did not
authorize interception of one of the snippets of conversation
introduced at trial.
1
During the investigation, law enforcement officers sought
to extend the wiretap on Suggs’s cell phone beyond the initial
30-day period set forth by the authorizing federal district
judge. To grant such an extension, the authorizing judge had
to find probable cause and necessity. The authorizing judge
did so here.
On appeal, defendants do not contest probable cause.
They challenge only the authorizing judge’s necessity
determination. We review that necessity determination for
abuse of discretion. See United States v. Maynard, 615 F.3d
544, 550 (D.C. Cir. 2010). A district court gives deference to
9
the authorizing judge’s necessity determination. But the court
of appeals does not typically give a second layer of deference
to a district court’s assessment of the authorizing judge’s
necessity determination. Not much turns on that point, but we
note it for purposes of analytical clarity.
To authorize a wiretap, an authorizing judge must
determine that the wiretap is supported by probable cause and
necessity. See 18 U.S.C. § 2518(3). The necessity
determination requires the judge to find that “normal
investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be
too dangerous.” 18 U.S.C. § 2518(3)(c). That requirement is
satisfied when “traditional investigative techniques have
proved inadequate to reveal the operation’s full nature and
scope.” United States v. Becton, 601 F.3d 588, 596 (D.C. Cir.
2010) (internal quotation marks omitted). The wiretap may
be authorized for a maximum of 30 days. 18 U.S.C.
§ 2518(5). A judge may extend the authorization for
additional periods of up to 30 days each after finding probable
cause and necessity for the extension. 18 U.S.C. § 2518(5);
see also 18 U.S.C. § 2518(3).
To support extension of the wiretap on Suggs’s cell
phone, law enforcement officers submitted affidavits to the
authorizing federal district judge explaining that traditional
investigative methods were still inadequate to reveal the full
nature and scope of the PCP-distribution conspiracy. Those
affidavits stated that Suggs was “extremely surveillance
conscious” and that “the use of the cooperating witnesses
alone would not have provided the type and quality of
evidence necessary to prosecute Suggs.” United States v.
Suggs, 531 F. Supp. 2d 13, 19 (D.D.C. 2008). The affidavits
also specified aspects of the PCP-distribution conspiracy that
law enforcement had been unable to uncover, including
10
“where the PCP distributed by the organization was
manufactured” and “how it was transported into the
Washington D.C. area.” Id.Given the explanation in the affidavits, the authorizing
judge did not abuse her discretion in finding that the necessity
requirement was met.
2
Law enforcement officers intercepted more than 4,000
phone calls to and from Suggs’s cell phone over the course of
the wiretap. During more than 600 of those phone calls, law
enforcement officers recognized that the conversations were
not relevant and stopped monitoring them so as to comply
with the statutory minimization requirement. See 18
U.S.C. § 2518(5); United States v. Anderson, 39 F.3d 331,
342 (D.C. Cir. 1994).
Defendants maintain that law enforcement’s
minimization efforts were not reasonable because too few
calls were minimized. They argue that the wiretapped
conversations therefore should have been excluded from
evidence.
The statute requires that wiretaps “be conducted in such a
way as to minimize the interception of communications not
otherwise subject to interception.” 18 U.S.C. § 2518(5). But
that statutory command “‘does not forbid the interception of
all nonrelevant conversations.’” United States v. Carter, 449
F.3d 1287, 1292 (D.C. Cir. 2006) (quoting Scott v. United
States, 436 U.S. 128, 140 (1978)). Rather, it requires only
that the Government “make reasonable efforts to ‘minimize’
the interception of such conversations.” Carter, 449 F.3d at
1292. As one would expect, determining the reasonableness
11
of minimization efforts is a fact-specific inquiry; “there can
be no inflexible rule of law which will decide every case.”
Scott, 436 U.S. at 139.
The District Court here determined that law
enforcement’s minimization efforts were reasonable. Our
cases have not set forth a clear standard of review on this
question. Regardless of the appropriate standard of review,
we find no reversible error here.
The District Court correctly concluded that a low number
of minimized calls does not itself show that the minimization
efforts were unreasonable. We have held that “a defendant
who does not identify specific conversations that should not
have been intercepted, or even a pattern of such conversations
has offered no concrete indications that the government failed
to meet its obligations to minimize intercepted
communications, and thereby failed to show error by the
district court.” Carter, 449 F.3d at 1295 (ellipsis and internal
quotation marks omitted). A low number of minimized calls
does not tell us much because the minimization inquiry
focuses on the content of the intercepted communications, not
the number.
Suggs also raises a separate minimization issue. On one
occasion, a law enforcement officer did not recognize that an
attorney was calling Suggs. The officer inadvertently kept
monitoring the call. Defendants contend that the improperly
intercepted phone call between Suggs and the attorney
demonstrates that law enforcement’s minimization efforts
were not reasonable. That argument fails because law
enforcement took a variety of measures to remedy the error.
Law enforcement sealed the call, removed the responsible law
enforcement officer from the investigation, and reviewed
some of the minimization procedures with the other law
12
enforcement officers participating in this part of the
investigation. Particularly in light of these steps, this one
episode does not demonstrate that the minimization efforts
were unreasonable.
In short, the District Court did not commit any reversible
error in concluding that the minimization efforts were
reasonable. We therefore need not address the question of the
proper remedy for violation of the minimization requirement.
See id. at 1296.
3
On one occasion when Price called Suggs, the wiretap
captured Price talking before the call went to Suggs’s
voicemail. Price apparently was speaking to another person
in his presence while calling Suggs. Price was caught saying:
“I know he ain’t got nothing. He’d a been called [t]he way
we was moving that shit.” Supplemental Appendix tab 1. At
trial, the District Court allowed introduction of that snippet
even though Suggs had not answered the call and thus was not
participating in the conversation.
Defendants say that the authorization for the wiretap on
Suggs’s cell phone did not cover the statements Price made
before the call went to Suggs’s voicemail. Defendants
contend that the introduction of those two sentences into
evidence was error requiring a new trial.
Even if introducing those statements was erroneous and
even if defendants properly objected to the error – neither of
which is in any way clear – defendants have not shown
prejudice. Put simply, in light of the numerous wiretapped
conversations introduced against defendants, those two
sentences constituted a very small drop in a very large bucket
13
of evidence against them. Therefore, any potential error was
harmless.
D
At trial, FBI Agent Bevington testified about the meaning
of slang terms used by defendants in the wiretapped
conversations – terms such as “water” (PCP), “boat”
(marijuana laced with PCP), “16th Street” (16 ounces), and
“32nd Street” (32 ounces). Agent Bevington also explained
where PCP is manufactured, in what quantities it is sold, and
at what price.
Agent Bevington did not testify as an expert witness
under Federal Rule of Evidence 702. Rather, he testified as a
lay witness under Federal Rule of Evidence 701.
On appeal, defendants assert that allowing Agent
Bevington to testify as a lay witness, instead of requiring him
to qualify as an expert witness, was reversible error.
Our recent decision in United States v. Smith, 640 F.3d
358 (D.C. Cir. 2011), addressed this precise issue. (Our
decision in Smith came after the District Court’s ruling in this
case, so the District Court was not aware of the Smith opinion
when it considered the issue here.) In Smith, we reviewed
Agent Bevington’s testimony in another drug-distribution
conspiracy case. We held that his testimony about the
meaning of slang terms used for heroin in wiretapped
conversations constituted expert testimony within the scope of
Rule 702. Id. at 365. We also ruled, however, that allowing
Agent Bevington to testify as a lay witness in that case was
harmless error because he “would have qualified as an expert
. . . based on his 21 years with the FBI and 17 years
investigating drug crimes, hundreds of drug investigations,
14
and thousands of hours listening to wiretapped conversations
between drug dealers.” Id. at 366. That reasoning applies
with equal force here and disposes of defendants’ argument
concerning Agent Bevington’s testimony.
E
During the trial, a juror suddenly realized that she knew
defendant Glover’s wife. The juror told the District Court.
After questioning the juror about the scope of the relationship
between the juror and Glover’s wife, the District Court
dismissed the juror over defendants’ objection and impaneled
an alternate juror.
On appeal, defendants challenge the juror’s dismissal. A
district court may impanel alternate jurors to replace original
jurors “who are unable to perform or who are disqualified
from performing their duties.” Fed. R. Crim. P. 24(c)(1). We
review for abuse of discretion a district court’s decision to
dismiss a juror and to impanel an alternate juror. See United
States v. Donato, 99 F.3d 426, 429 (D.C. Cir. 1996).
The District Court acted well within the bounds of its
discretion in dismissing the juror. While questioning the
juror, the District Court learned that the juror’s daughter had
gone to school with Glover’s wife and had been friends with
her. Indeed, both the juror and her daughter continued to see
Glover’s wife in their neighborhood. The juror also knew
Glover’s wife’s mother, aunts, and cousins. The District
Court reasonably explained that the connection between the
juror and Glover’s wife, the continued interaction between
their families, and the potential for implied bias counseled in
favor of dismissing the juror.
15
We find no reversible error in the District Court’s prompt
and sensitive handling of this issue.
F
The District Court instructed the jury that if the jury
found a defendant guilty of conspiracy, the jury must
determine the quantity of PCP for which the defendant was
responsible. During deliberations, the jury sent a note to the
District Court about the drug quantity issue. The note asked:
“Is a co-conspirator responsible for the total amount of PCP
of all co-conspirators even if the co-conspirator in question
did not know all of the co-conspirators and did not know the
specific amounts each co-conspirator possessed?” Joint
Appendix 659. In the hope that repeating the original drug
quantity instruction would suffice to answer the jury’s
question, the District Court reiterated its original instruction
to the jury. Defendants objected to that course of action,
arguing that the District Court should give a supplemental
instruction.
On appeal, defendants maintain that the District Court did
not respond sufficiently to the jury’s question. We review for
abuse of discretion a district court’s response to a jury
question of this sort. See United States v. Laing, 889 F.2d
281, 290 (D.C. Cir. 1989).
Our case law dictates that district courts have
“considerable discretion in determining how to respond, if at
all, to a jury’s request for clarification of a jury instruction.”
Id. “Where the jury explicitly reveals its confusion on an
issue, however, the court should reinstruct the jury to clear
away the confusion.” Id.16
Here, the District Court’s response did not constitute an
abuse of discretion. Rather than muddy the waters after
receiving the jury’s inquiry, the District Court reasonably
chose to repeat the original instruction (which has not itself
been challenged on appeal). And in repeating the original
instruction, the District Court specifically told the jury that “if
you have further questions, we will take them up after lunch.”
Joint Appendix 658. The jury asked no further questions. See
United States v. Heid, 904 F.2d 69, 70, 72 (D.C. Cir. 1990)
(conviction affirmed when district court responded to jury
question by repeating instruction and asking if that dispelled
jury’s confusion).
G
Glover and Price challenge the sufficiency of the
evidence supporting their convictions.
Evidence of a conspiracy is sufficient if, “when viewed in
the light most favorable to the government, it would permit a
rational jury to find the elements of conspiracy beyond a
reasonable doubt.” United States v. Baugham, 449 F.3d 167,
171 (D.C. Cir. 2006). The drug conspiracy statute under
which defendants were convicted, 21 U.S.C. § 846,
“dispenses with the usual requirement of an overt act and
requires only an agreement to commit” any of the enumerated
offenses. Id. We thus must uphold the convictions of Glover
and Price if a rational jury could find that the evidence, when
viewed in the light most favorable to the Government, showed
that Glover and Price were parties to an agreement to
distribute or to possess with intent to distribute one kilogram
or more of PCP. In undertaking our deferential review of the
jury’s verdict, we draw “no distinction between direct and
circumstantial evidence” and give “full play to the right of the
jury to determine credibility, weigh the evidence and draw
17
justifiable inferences of fact.” United States v. Carson, 455
F.3d 336, 368-69 (D.C. Cir. 2006) (citation omitted).
Glover and Price do not deny that there was sufficient
evidence to find an agreement to distribute or to possess with
intent to distribute one kilogram or more of PCP. They argue
only that there was insufficient evidence to find that they were
parties to that agreement. Given the voluminous evidence
presented at trial, that is a fairly weak argument. Numerous
wiretapped conversations linked Glover and Price to Suggs
and to the conspiracy. Moreover, when law enforcement
officers ultimately searched Glover’s house, they seized three
bottles containing 184.3 grams of PCP, 48 small bottles and
tops, two funnels, two eye droppers, two turkey basters, a
digital scale, $985 in cash, a sawed-off shotgun, a standard
shotgun, a rifle, ammunition, marijuana, heroin, and
resealable plastic bags. Viewing the evidence in the light
most favorable to the Government, as we must on appeal from
a guilty verdict, we conclude that a rational jury could readily
find Glover and Price guilty.
***
We have carefully considered all of defendants’
arguments. We affirm the judgments of conviction.
So ordered.