U.S. v. Thompson

• Decision Date: 11 January 2000
• Docket Number: No. 98-3905,98-3905
• Citation: 210 F.3d 855
• Parties: (8th Cir. 2000) United States of America, Appellee, v. Brian K. Thompson, also known as Brian Keith Thompson, Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 855

210 F.3d 855 (8th Cir. 2000)

United States of America, Appellee, v. Brian K. Thompson, also known as Brian Keith Thompson, Appellant.

No. 98-3905

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: January 11, 2000

Filed: April 28, 2000

Appeal from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted] Before WOLLMAN, Chief Judge, FLOYD R. GIBSON, and MURPHY, Circuit Judges.

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.

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 court ² 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. 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 court ³ 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 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 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 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....