U.S. v. Williams, 96-1043
| Decision Date | 12 May 1997 |
| Docket Number | No. 96-1043,96-1043 |
| Citation | 109 F.3d 502 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Johnny WILLIAMS a/k/a Doctor John, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas J. Bath, Jr., Overland Park, KS, argued (Jeffrey D. Morris and Lynn S. McCreary, Overland Park, KS, on the brief), for appellant.
D. Michael Green, Assistant United States Attorney, Kansas City, MO, argued, for appellee.
Before MAGILL, FLOYD R. GIBSON, and LAY, Circuit Judges.
A jury convicted Johnny Williams of attempting to possess five or more kilograms of cocaine with the intent to distribute. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (1994). The district court 1 sentenced Williams to 121 months imprisonment, followed by five years of supervised release. Williams raises several issues on appeal. First, Williams contends that the district court should have suppressed the fruits of the wiretap surveillance of Williams's telephone line because the government failed to comply with the minimization requirements of 18 U.S.C. § 2518(5) (1994). Second, Williams claims error in the district court's decision to allow the government to introduce records into evidence without laying a proper foundation. Third, Williams asserts that the district court's entrapment instruction prejudiced Williams and prevented him from receiving a fair trial. Finally, Williams raises three sentencing issues. He contends that the district court committed error when it calculated Williams's base offense level at 32, failed to recognize that the government engaged in sentencing entrapment, and failed to grant Williams his right of allocution pursuant to Fed.R.Crim.P. 32(c)(3)(C). For the reasons set forth below, we affirm Williams's conviction and sentence.
In December 1992 Adriana Roman began transporting cocaine from Houston, Texas to Kansas City, Missouri. In May 1993 Houston Police Detective Virgil Price approached Roman because he suspected she was a drug courier. Roman agreed to act as an informant for the Houston Police Department. Price later introduced Roman to FBI Agent Marlin Ritzman, and in June of 1993 Roman agreed to act as an informant for the FBI. Roman told Ritzman she made the following deliveries of cocaine to Kansas City from Houston: (1) five kilograms in December 1992; (2) five kilograms in early January 1993; (3) five kilograms in late January 1993; (4) eight kilograms in March 1993; and (5) three kilograms in May 1993. Roman told Ritzman that on each occasion she called either Williams or another drug dealer upon her arrival in Kansas City. On the occasions that Roman called Williams, he sometimes directly participated in the transactions, but at other times, Williams sent a messenger to collect the cocaine from Roman.
Based on the information supplied by Roman, the FBI applied for authorization to conduct surveillance of Williams's telephone line pursuant to 18 U.S.C. §§ 2510-2522 (1994). On September 15, 1993, the district court 2 authorized surveillance for a period of thirty days. 3 Because the FBI wished to establish Williams's willingness to deal in cocaine, Ritzman directed Roman to initiate contact with Williams. On September 22 Roman called Williams and persuaded him to meet her at a Kansas City motel to discuss a possible cocaine delivery. The FBI video taped the meeting, during which Williams suggested a delivery of one and one-half to two kilograms of cocaine. Roman, at the FBI's direction, informed Williams that because she had to travel to Michigan to visit her son, Williams should not expect to hear from her for at least a week. Williams responded that had he known of Roman's plans, she could have delivered the cocaine to him on her way to Michigan and retrieved the purchase money on her return trip through Kansas City. He agreed, however, to accept one and one-half to two kilograms of cocaine as soon as Roman was able to deliver the controlled substances. After the meeting concluded, Ritzman decided to attempt a reverse sting 4 on Williams and instructed Roman not to initiate contact with Williams until advised. However, shortly following the meeting, Roman made unauthorized contact with Williams and asked him to send money so she could rent a car to deliver cocaine to Kansas City. Roman actually made the request for money because she needed cash to pay rent and other bills. Williams, using the alias "Charlie Ward," wired Roman two hundred dollars.
On October 13, 1993, Ritzman received approval to attempt the reverse sting. Roman called Williams on October 13 to confirm delivery for October 14, 1993. As advised by Ritzman, Roman asked Williams if she could bring five kilograms rather than the previously agreed-upon one and one-half to two kilograms. Williams approved of Roman's request to deliver five kilograms of cocaine.
On October 14 the FBI flew Roman to Kansas City and escorted her to the American Inn where the agents planned to execute the reverse sting. The FBI had rented three rooms at the American Inn. Roman was to meet with Williams in one room. The FBI wired another room with audio and video surveillance equipment, and set up the third room to observe Williams as he entered and exited the room in which the reverse sting was to take place. FBI Special Agent Pisterzi obtained five single kilogram packages of cocaine from the DEA lab in Chicago, which he brought to the hotel for use in the reverse sting. Ritzman placed the packages of cocaine in a gym bag, and placed the bag in one of the hotel rooms with Roman. Shortly after noon, Roman telephoned Williams to tell him she was at the American Inn. Williams arrived soon thereafter.
Williams entered the hotel room and examined the five kilogram packages of cocaine. He took one package out of the gym bag. Williams then resituated the other four packages of cocaine and hid them in the room. Williams gave Roman two hundred dollars so she could get something to eat. He then advised her that he would return shortly for the other four packages of cocaine and that, in the meantime, she should "guard [the cocaine] with [her] life." Williams exited the room with one package of cocaine and was immediately apprehended by Ritzman. Ritzman released Williams based on Williams's promise to cooperate with the FBI. When Williams failed to cooperate, he was indicted and charged with attempting to possess at least five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (1994). A jury found Williams guilty of the charged offense, and the district court sentenced Williams to 121 months imprisonment followed by five years of supervised release.
Williams contends that all evidence obtained from the wiretap surveillance should have been suppressed because the government's procedures did not comply with the minimization requirements of 18 U.S.C. § 2518(5) (1994). Subsection five of 18 U.S.C. § 2518 requires that an order authorizing the interception of wire communications must ensure that the surveillance will "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception...." 18 U.S.C. § 2518(5) (1994). Whether the government complied with the requirements of section 2518(5) is determined by an objective, reasonableness standard. See Scott v. United States, 436 U.S. 128, 137-38, 98 S.Ct. 1717, 1723-24, 56 L.Ed.2d 168 (1978); United States v. Macklin, 902 F.2d 1320, 1328 (8th Cir.1990), cert. denied, 498 U.S. 1031, 111 S.Ct. 689, 112 L.Ed.2d 680 (1991).
When determining whether the government's surveillance was reasonable, "a reviewing court must consider a variety of factors, including the scope of the enterprise, the agent's reasonable expectation of the content of a call, the extent of judicial supervision, length and origin of a call, and use of coded or ambiguous language." Macklin, 902 F.2d at 1328 (citations omitted). After a consideration of these factors, we conclude that the government agents in this case acted reasonably in efforts to comply with the minimization requirements of section 2518(5). The order authorizing the wiretap named nine interceptees because at the outset of the investigation the FBI believed many people were involved in the drug trafficking. If an intercepted phone call involved one or more nonnamed interceptees and was noncriminal in nature, the order required the listening agent to minimize the call. The order also required the FBI to submit ten-day reports to the authorizing judge to ensure that proper minimization techniques were being used. Several of the individual phone calls contested by Williams were extremely short in duration. In these calls, listening agents barely had ample time to determine whether the speakers were named interceptees before the calls terminated. Cf. Scott, 436 U.S. at 141-42, 98 S.Ct. at 1725-26. The remaining calls challenged by Williams were ambiguous in nature and included language the agents reasonably could have believed was coded language referring to possible cocaine transactions. More extensive wiretapping is reasonable when "the conversations are in the jargon of the drug trade." Macklin, 902 F.2d at 1328 (citation omitted). Therefore, the government agents in this case acted reasonably in efforts to comply with the minimization requirements of section 2518(5).
Williams renews the objection he made at trial that records from two hotels and Western Union should not have been admitted into evidence because the government failed to call a custodian of records to lay a foundation for the business records hearsay exception of Fed.R.Evid. 803(6). Williams contends that the records were significant because they corroborated Roman's testimony...
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