U.S. v. Gunter, 07-5277.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation551 F.3d 472
Docket NumberNo. 07-5277.,07-5277.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael Charles GUNTER, Defendant-Appellant.
Decision Date08 January 2009

ARGUED: Stephen Ross Johnson, Ritchie, Dillard & Davies, Knoxville, Tennessee, for Appellant. Nancy Stallard Harr, Assistant United States Attorney, Greeneville, Tennessee, for Appellee. ON BRIEF: Stephen Ross Johnson, Ritchie, Dillard & Davies, Knoxville, Tennessee, for Appellant. Nancy Stallard Harr, Assistant United States Attorney, Greeneville, Tennessee, for Appellee.

Before: BATCHELDER, CLAY, and SUTTON, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Michael Charles Gunter appeals his conviction of conspiracy to distribute and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, of attempt to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2. On direct appeal, Gunter challenges: (1) whether there was probable cause to search his residence; (2) the sufficiency of the evidence supporting his conviction; (3) the admissibility of his prior felony convictions; and (4) the propriety of jury instructions regarding the conspiracy charges. For the reasons that follow, we AFFIRM the judgment of the district court.

BACKGROUND

On February 14, 2006, a federal grand jury indicted Michael Charles Gunter and co-defendants Bill Banks, Kenny Holt, and John Banks on charges of conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 843(b), and 846 (Count One), and of attempt to possess with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, and 18 U.S.C. § 2 (Count Two).

On August 10, 2006, the district court denied Gunter's motion to suppress evidence seized from his residence. Gunter's co-defendants each pleaded guilty pursuant to plea agreements with the government, but Gunter proceeded to trial. On September 19, 2006, the jury convicted Gunter of conspiracy to distribute and possession with intent to distribute more than 500 grams but less than five kilograms or more of cocaine (the lesser-included offense of Count One), and of the substantive drug offense in Count Two.

On September 28, 2006, Gunter filed a motion for a new trial, which the district court denied. On February 27, 2007, Gunter was sentenced to 120 months imprisonment, and thereafter filed a timely notice of appeal.

A. The Search Warrant

On January 20, 2006, a United States magistrate judge issued a warrant to search Gunter's residence, surrounding property, and vehicles. The application for the warrant and the supporting affidavit were prepared by Special Agent James Williams of the Tennessee Bureau of Investigation ("TBI"), who supervised a joint federal and state investigation that began in November 2005.

In the affidavit, Williams stated that he had participated in an investigation focusing on a cocaine and marijuana distribution network involving Gunter, Harold Grooms, co-defendant Bill Banks, and others. The investigation included the use of a confidential informant ("CI-1") and Williams alleged that CI-1 was an accurate and reliable source that he had used in the past. The investigation included surveillance activities and produced a number of recorded and unrecorded conversations where CI-1 discussed the distribution of large quantities of cocaine with Grooms and Banks.

Williams' affidavit is lengthy and much of it pertains to interactions between CI-1 and Banks. However, in a Report and Recommendation recommending denial of Gunter's motion to suppress, the magistrate judge summarized the information in the affidavit as follows:

(a) CI-1 previously had sold marijuana to Harold Grooms.

(b) CI-1 represented that he had four to six pounds of cocaine which he wished to sell to Harold Grooms and Mike Gunter, and he was discussing this potential sale with Bill Banks as an intermediary. [....]

(h) Banks told CI-1 that Harold Grooms and David Lancaster, an associate of Grooms, wanted Banks to deliver the cocaine to one of several possible locations.

(i) Banks told CI-1 that Grooms and Gunter were "associates in the cocaine business."

(j) On December 13, 2005, Banks told CI-1 that Gunter had gone to Florida and procured one kilogram of cocaine, that Gunter also wanted to [buy] one kilogram of cocaine from Banks, and that he would buy even more if he was able to sell the kilogram he bought in Florida.

(k) Banks consistently told CI-1, as late as January 13, 2006 (one week before the warrant was issued), that Gunter wanted to buy two to four kilograms of cocaine; Banks said that he would get the purchase money from Gunter and would provide samples of the cocaine to Harold Grooms for testing.

(l) If the cocaine met Grooms' test for purity, Grooms would give Banks the money to buy the cocaine from CI-1; Banks intended to buy cocaine for both Grooms and Gunter at the same time.[....]

(o) On January 5, 2006, Banks ... mentioned that he had sold three kilograms of cocaine to Gunter.

(p) On January 16, 2006, CI-1 told Banks that CI-1's purported supplier of cocaine had to have a minimum order of eight kilograms before he would make a delivery; Banks stated that he intended to sell Gunter two kilograms of cocaine.

(q) On January 19, 2006, Banks told CI-1 that Gunter had purchased a kilogram of cocaine and that Lancaster and Grooms had purchased two kilograms. Banks told CI-1 that Grooms was concerned about CI-1's competition with Grooms' cocaine business; Banks indicated that Grooms wanted to take possession of any cocaine ultimate intended for Gunter and "re-rock" it before it was delivered to Gunter. Banks told CI-1 that Grooms believed that CI-1 was selling his cocaine too cheaply to Gunter.

(r) During a meeting of CI-1 and Banks, Banks received a phone call; Banks said the caller was Gunter, that Gunter wanted to buy two kilograms of cocaine for $22,000.00 per kilogram. Banks and CI-1 also discussed the advisability of talking to Harold Grooms to determine if Grooms would buy cocaine from banks and CI-1 if they agreed to sell only to Grooms and Lancaster, or if they agreed to sell to other customers after Grooms had re-rocked the cocaine.

(Joint Appendix ("J.A.") 108-111) (emphasis in original).

The affidavit also stated that law enforcement agents conducted surveillance of a January 19, 2006 meeting between the informant and co-defendant Banks. After the meeting, agents observed Banks meet with a white female in a minivan displaying a tag that was registered to Gunter's home address. Agents then observed Banks travel a short distance and meet with an individual matching Gunter's physical description operating a white pick-up truck. After Banks and this individual separated, the pick-up truck was observed traveling to Gunter's residence. Williams stated that because it was his experience that drug traffickers kept evidence of illegal activity in their homes, he believed that the multiple items of contraband listed in the affidavit would be found at Gunter's residence. A warrant was issued, and it was executed on January 26, 2006.

Gunter moved to suppress the evidence seized form the search of his residence. On July 7, 2006, the magistrate judge issued a Report and Recommendation recommending denial of the motion. Gunter filed objections, but the district court adopted the magistrate's order and denied the motion to suppress.

B. Trial Evidence

Gunter's case was tried before a jury in September 2006. Both the government and Gunter presented witnesses.

The government's first witness was Williams, who testified that he was a TBI agent with thirteen years experience conducting narcotics investigations, and that he led an investigation into the drug activities of Gunter and three co-defendants beginning in November 2005.

Williams testified that he contacted an informant, who arranged an undercover transaction for the sale of six to eight kilograms of cocaine to co-defendant Bill Banks and his associates. The informant reported that he had been involved in marijuana deals with Banks and that Banks was involved with Harold Grooms, the owner of Hilltop Auto Sales. Agents believed Grooms was responsible for distributing between 10 and 20 kilograms of cocaine per month and Grooms was considered the main target of the investigation.

In the course of the investigation, agents recorded approximately 38 conversations between the informant and Banks. Those conversations were admitted into evidence and later played for the jury. Discussing and summarizing those conversations for the jury, Williams testified that Banks consistently stated that he knew an individual who would "front" him the money to purchase the cocaine, and that the individual had offered to do so on multiple occasions. Banks later clarified that this individual was Gunter.

Williams testified that a deal was scheduled for December 10, 2005, and that Banks indicated that he would purchase two kilograms of cocaine from the informant and sell it to Gunter. Williams testified that he decided to cancel the deal because he felt the situation was unsafe. The government admitted records of cellular phone calls between Gunter and Banks during this time frame.

Williams also testified that the informant and Banks met in a restaurant on January 19, 2006 to discuss a drug deal scheduled for that day that had fallen through. Williams testified that in a recorded conversation, Banks indicated that Grooms and an associate were "backing out" because they learned that Gunter was involved, and they did not want to sell two kilograms of cocaine to Gunter, because "if Mr. Gunter was able to obtain cocaine at the purity level that they believed they would be getting, prior to them being able to cut the...

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