140 F.3d 596 (5th Cir. 1998), 97-30056, United States v. Kelley

Docket Nº:97-30056
Citation:140 F.3d 596
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Victor G. KELLEY; Welton L. Wright; Terry Elmore; James Earl Shaw; Parnell Kelley aka P.K., Defendants-Appellants.
Case Date:April 29, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 596

140 F.3d 596 (5th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,


Victor G. KELLEY; Welton L. Wright; Terry Elmore; James Earl Shaw; Parnell Kelley aka P.K., Defendants-Appellants.

No. 97-30056

United States Court of Appeals, Fifth Circuit

April 29, 1998

Page 597

[Copyrighted Material Omitted]

Page 598

[Copyrighted Material Omitted]

Page 599

[Copyrighted Material Omitted]

Page 600

Josette Louise Cassiere, Asst. U.S. Atty., Shreveport, LA, for Plaintiff-Appellee.

Daniel J. Ellender, Ellender & Ellender, Mer Rouge, LA, for Victor G. Kelley.

James L. Brazee, Jr., Brazee & Associates, Lafayette, LA, for Wright.

Paul Henry Kidd, Sr., Kidd & Culpepper, H. Cameron Murray, Monroe, LA, for Elmore and Shaw.

Gregory G. Elias, Monroe, LA, for Parnell Kelley.

Appeals from the United States District Court for the Western District of Louisiana.

Before REYNALDO G. GARZA, DUHÉ and STEWART, Circuit Judges.

STEWART, Circuit Judge.

On September 28, 1995, Victor G. Kelley, Welton L. Wright, Terry Elmore, James Earl Shaw, Larry Doublin, and Parnell Kelley, aka P.K., were arrested pursuant to a 13-count indictment alleging a drug conspiracy, forfeiture, and various drug distribution crimes that spanned from sometime in 1993 through May 1995. The distribution charges against Victor Kelley, the purported leader of the conspiracy, were dropped prior to trial. Victor Kelley's girlfriend--Angela Turner--was also named in the indictment, but her charge was limited to a structuring offense. Following a three-week jury trial, the defendants were found guilty on all counts of the indictment and convicted as charged. Victor Kelley, Welton Wright, Terry Elmore, James Shaw, and Parnell Kelley timely appeal such convictions and sentences.


The appellants, each in their twenties (except Wright), all resided in Monroe, Louisiana, and apparently grew up in the same neighborhood or have known each other for quite some time. All of the appellants--and all of the defendants below--are African-American. The government alleges that they orchestrated a rather large, almost impenetrable drug distribution ring in northeast Louisiana--its leader being Victor Kelley, its supervisor being Wright, and its "headquarters" being Wright's home as that is where appellants' often gathered to cook the powder cocaine into crack cocaine. The government asserts that the cocaine was imported by Victor Kelley from Houston, Las Vegas, and California.

The charges stem from transactions entered into between various appellants and Daniel Townes, a confidential informant ("CI"), and Tamara Andrews, an undercover agent ("UCA") who posed as Townes' girlfriend. Townes, an unindicted co-conspirator in this action, reported that he had previously been involved in selling drugs with these men and subsequently was used to provide investigators access to the organization. Both Townes and Andrews were wired with eavesdropping devices during these transactions. The government also wiretapped Wright's telephone for a one-month period in 1994 and intercepted numerous drug-related phone calls.

During the course of the investigation, officers became aware that Angela Turner had purchased the property in which she resided with Victor Kelley and two of his children with $60,000 in bank money orders which she had obtained with the names of various individuals on them. Investigators obtained a search warrant for the home in order to seize bank records and/or financial documents related to the purchase. During the search, officers found a notebook appearing to be a drug ledger which they seized. That seizure, conducted pursuant to an unsigned search warrant, was the subject of one of the defendants' motions to suppress.

The government's presentation at trial consisted principally of the following: (1) the testimony of CI Townes pertaining to his concededly "limited" penetration of the drug ring; (2) the testimony of CI Townes and UCA Andrews pertaining to (and wiretap and eavesdropping surveillance evidence gathered from) the drug distribution transactions; 1 (3) surveillance evidence secured via

Page 601

a wiretap of Wright's home telephone; 2 and (4) certain evidence ( i.e., cash and a page from a notebook purported to be a drug ledger) seized from Victor Kelley's and Turner's home pursuant to an unsigned and undated warrant.

In response, appellants sought suppression of the wiretap evidence and the drug ledger page, on the grounds that the government's affidavit in support of the wiretap was deficient and the warrant authorizing the search of Kelley's home was invalid. Both motions were ultimately denied. As to the drug ledger, the magistrate judge initially suppressed it because its seizure exceeded the scope of the warrant. The district court disagreed with the magistrate judge's reasoning, finding that seizure of the drug ledger did not exceed the scope of the warrant because it appeared in plain view among the documents and papers that were authorized to be searched. Nevertheless, the district court initially decided to suppress the ledger because the warrant was unsigned and undated. After considering the government's motion to reconsider, however, the district court determined that the good-faith exception to the exclusionary rule was applicable, and allowed the drug ledger page into evidence.

During jury selection at trial, defendants used their fourteen peremptory strikes to strike only white jurors. The government challenged defendants' strikes as racially motivated. The defendants then challenged the government's use of six of its ten strikes to strike African-Americans. Three African-Americans remained on the jury. The district judge found that both the government and the defendants had made a prima facie showing of racially-motivated peremptory strikes and required that both sides proffer reasons for their strikes. The court disbelieved defendants with respect to the motivation for four of their strikes and three of those jurors survived on the jury. The court accepted all of the government's reasons as race-neutral and valid.

Following the trial, Victor Kelley was convicted of conspiracy to distribute crack cocaine. All other defendants were convicted as charged. The district court sentenced the defendants based on guideline calculations using the entire amount of drugs testified to at trial as the amount distributed by the entire conspiracy. The defendants timely appeal their convictions.



The Unsigned and Undated Search Warrant

Standard of Review

When reviewing the denial of a motion to suppress, we review factual findings for clear error and review the trial court's ultimate conclusion as to the constitutionality of law enforcement action de novo. United States v. Castro, 129 F.3d 752, 755 (5th Cir.1997). Conclusions of law regarding the sufficiency of a warrant are reviewed de novo. United States v. Shugart, 117 F.3d 838, 843 (5th Cir.1997). Likewise, the district court's determination of the reasonableness of a law enforcement officer's reliance upon a warrant issued by a magistrate--for purposes of determining the applicability of the good-faith exception to the exclusionary rule--is also reviewed de novo. United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.1992).


Victor Kelley and Welton Wright argue that the district court erred in failing to suppress evidence found during the search of Victor Kelley and Angela Turner's premises because the warrant used to authorize the search was not signed or dated by the issuing magistrate judge. The appellants contend that the magistrate's failure to sign the search warrant was critical to the validity of the warrant and that no search pursuant to such a warrant could be a good-faith search. The appellants maintain that the district

Page 602

court erred in denying their motion to suppress the drug ledger and that the good-faith exception to the exclusionary rule should not be applicable to this case. 3 They further argue that the items seized--in particular, a drug ledger page--exceeded the scope of the purported warrant. In its motion to reconsider filed in the district court, the government urged the court to apply the good-faith exception to the exclusionary rule. The government submitted three affidavits in support of the executing officers' reasonable presumption of the warrant's validity. 4

The Fourth Amendment's exclusionary rule does not bar the admission of evidence obtained with a warrant later found to be invalid so long as the executing officers acted in reasonable reliance on the warrant. United States v. Leon, 468 U.S. 897, 906-08, 104 S.Ct. 3405, 3411-12, 82 L.Ed.2d 677 (1984). Generally, "[i]ssuance of a warrant by a magistrate suffices to establish good faith on the part of law enforcement officers who conduct a search pursuant to the warrant." Id. at 922-23, 104 S.Ct. at 3420-21. However, the Court in Leon made clear that an officer's reliance on the technical sufficiency of the warrant not only must be made in good faith, but also must be objectively reasonable. The Leon Court noted that in some circumstances the officer will have no reasonable grounds for believing that a warrant is valid-- e.g., when the warrant is facially deficient in particularizing the place to be searched or the things to be seized. 5 Id. at 923, 104 S.Ct. at 3420-21. On this basis, Victor Kelley and Wright argue that the unsigned and undated warrant in this case was facially deficient such that the officers could not have relied on it in an objectively reasonable way. We disagree with Kelley and Wright's reasoning.

In Massachusetts v. Sheppard, 468 U.S. 981, 104...

To continue reading