U.S. v. Martin
| Decision Date | 26 March 1979 |
| Docket Number | 77-1282,77-1272,77-1281,77-1338 and 77-1619,Nos. 77-1271,s. 77-1271 |
| Citation | 599 F.2d 880 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Anthony MARTIN, Nolan Allen Hall, Searcy Baker Andrews, Charles Masao Johnson, a/k/a Chas, Stephen Bruce Davenport, a/k/a Steve Davenport, Lewis Nathaniel Dixon, a/k/a Baby Boy, B.B. and Pretty Boy Floyd, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Roger Ruffin, San Francisco, Cal., for appellant Martin.
William M. Goodman, Asst. Fed. Pub. Defender, San Francisco, Cal., for appellant Hall.
Marcus S. Topel, San Francisco, Cal., for appellants Johnson and Andrews.
Stephen Heiser, San Francisco, Cal., for appellant Davenport.
Jerrold Ladar, San Francisco, Cal., for appellant Dixon.
Linda C. Jamieson, U. S. Atty., San Francisco, Cal., William J. Corcoran, Atty., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before WALLACE and HUG, Circuit Judges, and GRANT *, District Judge.
Searcy Baker Andrews, Charles Johnson, Anthony Martin, Lewis Dixon, Nolan Hall and Stephen Davenport appeal from their convictions for violations of federal laws relating to the distribution and possession of illegal drugs.
Defendants Andrews, Johnson, Hall and Martin were convicted after a two-day trial before the court, the primary evidence considered by the court being facts stipulated to by the prosecution and the defense. Defendants Davenport and Dixon were convicted after a jury trial. All of the convictions arose from the same set of events, and the cases have been consolidated on appeal. Although the appellants challenge their convictions on numerous grounds, the principal issues presented for review concern the admissibility of evidence obtained through the use of wiretaps and the requisite elements of the crime of facilitation of the commission of a felony. We affirm as to all parties except Davenport. We affirm his conviction for attempted possession of narcotics, but reverse his conviction for facilitation of the drug conspiracy.
All defendants were charged in one count with conspiracy to distribute, and to possess with the intent to distribute, heroin and cocaine, in violation of 21 U.S.C. § 846. All defendants except Davenport were convicted of this charge. The jury acquitted Davenport of the conspiracy charge, but convicted him of attempted possession of cocaine or heroin.
All defendants were charged in various counts with use of a telephone to facilitate a conspiracy in violation of 21 U.S.C. § 843(b), and each was convicted on one or more counts arising out of these charges. Except in the case of Davenport, the sentence imposed on each defendant was ordered to run concurrently with his sentence for the conspiracy conviction. In Davenport's case, the sentence was ordered to run concurrently with the sentence for the attempted possession charge.
Andrews was also convicted of the substantive offense of possession with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The sentence imposed was ordered to run concurrently with the sentence for the conspiracy conviction.
In mid-1975, the Drug Enforcement Administration (DEA) instituted an investigation into what they believed to be a highly sophisticated drug ring involving some of the appellants. To facilitate this investigation, in August of 1975 the DEA sought and received authorization to conduct a series of wiretaps. The primary basis for the appeals of the defendants revolves around the validity of these wiretaps under 18 U.S.C. § 2518, since the most significant evidence offered by the government in the prosecution below was obtained by means of these wiretaps.
The initial wiretap was ordered on August 18, 1975. The issuing court authorized On September 30, the issuing judge authorized a tap on the two phones in Johnson's residence, this order naming as probable conversers appellants Johnson and Andrews, other persons not parties to this appeal and "persons unknown". Although initially effective for 20 days, this wiretap was renewed after 17 days. A new order was issued on October 17, renewing the prior wiretap on Johnson's phones for another 20 days. This second order named appellants Johnson, Andrews, Martin and Hall as probable conversers. The tap was terminated at the end of 20 days.
a wiretap on the phone of Robert Earl Andrews, a defendant who is not a party to this appeal, authorizing the interception of the conversations of "Robert Earl Andrews and others as yet unknown". This authorization, although potentially effective for 20 days, was terminated after seven days, since the phone at the residence was replaced. On August 28, a new wiretap was ordered on this phone, naming Robert Andrews and appellants Searcy Baker Andrews and Charles Johnson as probable conversers. This wiretap was terminated after ten days.
On November 11, the issuing judge authorized the wiretapping of appellant Andrews's phone. Named as probable conversers were Searcy Baker Andrews, Charles Johnson and "others unknown". This tap lasted for the full authorized period of 20 days.
In addition to comprising a crucial portion of the evidence offered at trial, the information obtained through these wiretaps served other functions as well. Some of the information obtained from the earlier wiretaps was incorporated into the affidavits in support of the later wiretaps. Additionally, with the evidence obtained from these wiretaps, affidavits were drawn up in support of search and arrest warrants which were ultimately used against the appellants. Pursuant to these latter warrants: (1) Andrews was arrested in his car; on the floor of his car, behind the driver's seat, a leather bag was found which contained cocaine; (2) drugs were seized at the residence of roommates Martin and Hall; (3) guns located in Dixon's bedroom, within his reach, were seized; and (4) Johnson's residence was searched, but the only evidence seized that had any impact in the proceedings below, were his two telephones.
The issues we are called upon to decide in this appeal are:
(1) Whether the evidence obtained from wiretaps should have been suppressed for various reasons;
(2) Whether a person who merely attempts to purchase a drug for his own use from a member of a conspiracy to sell that drug can be convicted, by that act alone, of facilitation of a conspiracy within the meaning of 21 U.S.C. § 843(b);
(3) Whether the search of Johnson's residence was illegal, justifying reversal;
(4) Whether the failure of Dixon's motion for severance or mistrial was reversible error;
(5) Whether the admission into evidence of guns found in Dixon's apartment was reversible error; and
(6) Whether there was sufficient evidence to support Andrews's conviction for possession of cocaine with the intent to distribute.
We turn first to the various contentions of appellants that the wiretaps were unlawful and that the evidence derived therefrom should have been suppressed. We are concerned here with both a Fourth Amendment requirement and the requirements under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. The statutory requirements may, of course, be more restrictive than the requirements of the exclusionary rule for Fourth Amendment violations.
Section 2515 of 18 U.S.C. prohibits the receipt in evidence of the contents of a communication, or evidence derived therefrom, if the disclosure would be in violation Any aggrieved person . . . may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the ground that
of the Act. That section is triggered by § 2518(10)(a), which provides in part:
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval
Section 2518(1)-(8) sets out the procedures and requirements in order to obtain a valid order to place a wiretap on the telephone and subsequent requirements of the agency following the wiretap.
Andrews argues that the trial court erred in declining to suppress evidence obtained through the wiretaps authorized by the orders issued on August 28 and September 30. He contends that the Fourth Amendment and 18 U.S.C. § 2518(1)(b) (iv) and (3)(a) require that the application for wiretap authorization set forth sufficient facts to allow the issuing judge to conclude that there is probable cause to believe that each person named in the application as a probable converser is committing an offense. Andrews argues that he was named as a probable converser in the application, but that the DEA did not then have probable cause to believe that he was committing an offense.
There is nothing in the Fourth Amendment that imposes a requirement of the type urged by Andrews. In United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), the Court stated:
The Fourth Amendment requires specification of "the place to be searched, and the persons or things to be seized." In the wiretap context, those requirements are satisfied by identification of the telephone line to be tapped and the particular conversations to be seized.
Id. at 427, n.15, 97 S.Ct. at 668, n.15. There is no constitutional requirement that the persons whose conversations may be intercepted be named in the application. Id. Consequently, we hold that the Fourth Amendment does not require that the reasons for naming all probable conversers be shown in the application.
The question concerning the requirements of the statute is not as easily resolved. The subject of our inquiry...
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