U.S. v. Jackson
| Decision Date | 29 September 2003 |
| Docket Number | No. 02-3770.,No. 02-3937.,No. 02-3910.,02-3770.,02-3910.,02-3937. |
| Citation | 345 F.3d 638 |
| Parties | UNITED STATES of America, Appellee v. Durrell Kaye JACKSON, Appellant. United States of America, Appellee v. Dentonious Neville Washington, also known as Neal, also known as Neil, also known as Buck Mouth, Appellant. United States of America, Appellee v. Arthur Mabry, also known as Oscar, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Gerardo S. Gutierrez, argued, Chicago, IL, for appellant Durrell Kaye Jackson.
Alfred E. Willett, argued, Cedar Rapids, IA, for appellant. Dentonious Neville Washington.
Roger L. Sutton, argued, Charles City, IA, for appellant Arthur Mabry.
Stephanie M. Rose, argued, Assistant U.S. Attorney, Cedar Rapids, IA, for appellee U.S.
Before MORRIS SHEPPARD ARNOLD and RILEY, Circuit Judges, and BOGUE,1 District Judge.
After a lengthy trial in the district court,2 a jury convicted Durrell Kaye Jackson, Dentonious Neville Washington, and Arthur Eugene Mabry of participating in a drug-related conspiracy. Jackson was also found guilty of operating a continuing criminal enterprise (CCE). Both Jackson and Washington were additionally convicted of violating numerous other federal criminal statutes. Jackson's convictions resulted in the imposition of two life sentences and one provisional life sentence. Each defendant now appeals. We affirm, but remand for the vacation of Jackson's conspiracy conviction.
An extensive amount of evidence was presented to the jury, however, we limit our discussion to those facts which are necessary to resolve the issues raised on appeal. In 1991, Jackson was prosecuted by the Northern District of Iowa on drug-related charges. Upon the completion of his prison sentence in 1995, Jackson returned to Waterloo, Iowa, on supervised release. On numerous occasions in 1996, Jackson tested positive for marijuana. Jackson's marijuana use violated the conditions of his supervised release and he eventually served an additional four months in prison.
After his initial release from custody in 1995, Jackson became extensively involved in cocaine trafficking; receiving assistance in varying degrees from Washington, Mabry, and others. Large quantities of cocaine, either powder or cocaine base (crack), were transported to Waterloo from Chicago, Illinois, Milwaukee, Wisconsin, and several additional locations. On many occasions, Jackson paid couriers to deliver the drugs or participated directly with the assistance of female companions. On one occasion, law enforcement officers intercepted 1980 grams of cocaine powder which Jackson attempted to ship through the United Parcel Service. With respect to the cocaine that successfully arrived in Waterloo, Washington and others "cooked" the powder into crack. The crack was ultimately distributed by Jackson, Washington, Mabry, and numerous other individuals.
On June 14, 2000, after performing a lengthy investigation into the illegal activities of the individuals involved in this drug distribution scheme, law enforcement officers applied for a wiretap order seeking authorization to intercept Washington's cellular telephone calls. The application was supported by a 39-page affidavit of Special Agent Scott Gray of the Federal Bureau of Investigation. Finding probable cause to believe that the individuals listed, including Jackson, Washington, and Mabry, were committing and would continue to commit offenses involving controlled substances and using a communication device to facilitate those violations, the district court granted the application.
The evidence gained as a result of the communications intercepted by the wiretap, as well as through conventional investigative techniques, resulted in a six count indictment which was returned on October 26, 2000. A 19 count superseding indictment was subsequently filed on November 15, 2000. Jackson, Washington, and Mabry were charged with conspiring to distribute cocaine, crack, and marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The conspiracy count also alleged that the three defendants distributed cocaine and crack to persons under the age of 21 in violation of 21 U.S.C § 859, and that the defendants, in violation of 21 U.S.C. § 861(a)(1), used or persuaded a person under the age of 18 to violate federal drug laws. Jackson was additionally charged in separate counts with aiding and abetting the distribution of 4.9 grams of crack, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 851 and 18 U.S.C. § 2; engaging in a CCE, in violation of 21 U.S.C. § 848(a), (b), and (c); attempting to distribute 1980 grams of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B) and 851; and five additional counts of using a communication device in causing and facilitating the commission of a felony, in violation of 21 U.S.C. § 843(b). In addition to the conspiracy allegation, Washington was charged in three separate counts with distributing crack in quantities ranging from 13.1 grams to 26.1 grams, as well as distributing five or more ounces of marijuana in violation of Sections 841(a)(1) and (b)(1)(B), and 851. Washington was also charged with nine counts of using a communication device in causing and facilitating the commission of a felony in violation of Section 843(b).
Prior to trial, Washington filed a suppression motion,3 arguing that the wiretap application failed to establish the necessity for the investigative tool and the evidence gained as a result of the intercepted communications therefore was inadmissable at trial. The district court4 denied the motion. Trial of this matter began on February 5, 2002, and the jury began deliberations on February 28, 2002. On March 1, 2002, the jury found Jackson and Washington guilty of each offense charged against them in the indictment. Mabry was found guilty of conspiring to distribute 50 grams or more of crack and 500 grams or more of cocaine.
On October 18, 2002, Jackson received concurrent life sentences for his CCE conviction and his attempt to distribute 1980 grams of cocaine. The district court imposed a provisional life sentence on the conspiracy conviction pending appellate review of the CCE conviction. Jackson received lesser sentences for his remaining convictions. Washington and Mabry were sentenced on November 14, 2002. The district court determined that both Washington and Mabry had a sentencing range of 360 months to life in prison. However, the government filed a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and the district court sentenced Washington and Mabry to 20 years imprisonment for their participation in the conspiracy. Washington received concurrent sentences for his remaining convictions. Jackson, Washington, and Mabry each appeal, raising issues both individually and collectively.
Washington argues that in seeking the wiretap authorization, the government failed to satisfy the necessity requirement of 18 U.S.C. § 2518 and, therefore, the district court erred in denying his motion to suppress the evidence obtained as a result of the intercepted communications. Jackson adopts the arguments raised by Washington for the purpose of this appeal. "We review the denial of a motion to suppress de novo but review underlying factual determinations for clear error, giving `due weight' to the inferences of the district court and law enforcement officials." United States v. Replogle, 301 F.3d 937, 938 (8th Cir. 2002). The necessity finding made prior to a district court's authorization of a wiretap is a factual determination. See United States v. Thompson, 210 F.3d 855, 859 (8th Cir.2000).
The necessity requirement of § 2518 insures "`that wiretaps are not routinely employed as the initial step in an investigation.'" Id. at 858-859 (quoting United States v. Maxwell, 25 F.3d 1389, 1394 (8th Cir.1994)). To satisfy the requirement, an application requesting a wiretap order must include "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." 18 U.S.C. § 2518(1)(c): See also Thompson, 210 F.3d at 858. Having reviewed the affidavit supporting the application, we find that the district court's necessity finding under § 2518 was not clearly erroneous.
The wiretap was requested for the purpose of discovering the full scope of the conspiracy, the full extent of the criminal activities, and to identify and successfully prosecute each member of the organization. If law enforcement officers are able to establish that conventional investigatory techniques have not been successful in exposing the full extent of the conspiracy and the identity of each coconspirator, the necessity requirement is satisfied. Id. at 859 (citing Maxwell, 25 F.3d at 1394; United States v. Smith, 909 F.2d 1164, 1166 (8th Cir.1990); United States v. Macklin, 902 F.2d 1320, 1327 (8th Cir.1990); United States v. O'Connell, 841 F.2d 1408, 1414-15 (8th Cir.1988)). Agent Gray's affidavit states, with detail, the conventional investigative techniques utilized by law enforcement officers over a period of several years. The methods included surveillance, confidential informants, trash collections, pen registers and toll record information, grand jury subpoenas, search warrants, and witness interviews. The affidavit indicates the difficulties law enforcement officers encountered and explained why the investigative methods which were attempted failed to discover the full scope of the conspiracy. For instance, physical surveillance was largely unsuccessful because Jackson generally appeared to be aware of the presence of the officers; trash...
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