US v. Becton

• Citation: 601 F.3d 588
• Decision Date: 16 April 2010
• Docket Number: No. 09-3016.,09-3016.
• Parties: UNITED STATES of America, Appellee v. James BECTON, also known as Funk, also known as P, also known as Pumpkin, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

601 F.3d 588

UNITED STATES of America, Appellee v. James BECTON, also known as Funk, also known as P, also known as Pumpkin, Appellant.

No. 09-3016.

United States Court of Appeals, District of Columbia Circuit.

Argued January 11, 2010.

Decided April 16, 2010.

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Stephen C. Leckar, appointed by the court, argued the cause and filed the briefs for appellant.

SuzAnne C. Nyland, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roy W. McLeese III, John P. Mannarino, Arvind K. Lal, and Matthew P. Cohen, Assistant U.S. Attorneys.

Before: ROGERS and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

Appellant James Becton was sentenced to 300 months in prison after a jury convicted him of conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base ("crack"), five kilograms or more of cocaine, and cannabis, along with ten counts of unlawful use of a communication facility to facilitate the conspiracy. In this appeal, Becton challenges (1) the District Court's denial of his motion to suppress evidence obtained from a series of wiretaps placed on his and his charged coconspirators' cell phones; (2) the District Court's refusal to hold a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), regarding the prosecution's alleged failure to disclose certain information bearing on the credibility of two confidential sources that it relied on in affidavits supporting the wiretap applications; and (3) the District Court's denial of his motion for a new trial. In the new trial motion, Becton argued that the District Court improperly admitted testimony pertaining to his activities while incarcerated from 2003 to 2005 on an unrelated charge and that it improperly allowed the Government to inform the jury in its rebuttal closing argument that Becton had also been in prison between 1995 and 2000. The District Court rejected both arguments, and Becton now raises them again before this court.

We affirm the District Court's rulings. First, we hold that the District Court did not abuse its discretion in approving the prosecution's use of wiretaps to uncover the "full nature and scope" of the conspiracy. See United States v. Sobamowo, 892 F.2d 90, 93 (D.C.Cir.1989) (internal quotation marks omitted). Second, we find that the trial court did not err in failing to hold a Franks v. Delaware hearing, since the information appellant asserts was omitted from the affidavits was not material. Finally, the District Court did not abuse its discretion in denying the motion for a new trial, because it properly admitted the testimony pertaining to Becton's incarceration from 2003 to 2005 as direct evidence of the charged offense, see United States v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000), and correctly determined that Becton did not suffer "substantial prejudice" from the prosecutor's improper remark in rebuttal closing argument, see United States v. Childress, 58 F.3d 693, 715 (D.C.Cir.1995) (per curiam) (internal quotation marks omitted). Accordingly, we affirm.

I. BACKGROUND

In 2001, the FBI began investigating drug trafficking on the 4200 and 4300 blocks of Fourth Street, S.E., in Washington, D.C. According to the Government, appellant James Becton and his brother Willie Best led a "violent, narcotics trafficking organization," Counts Aff. ¶ 15 (Oct.2005), reprinted in 1 Appendix to Brief of Appellant Becton ("A.A.") 327 ("Counts Oct. Aff."), supplying large quantities of drugs (primarily cocaine, crack, and marijuana) to their underlings and overseeing the drug sales that occurred in this area. Although the Government's investigation slowed due to "staffing and resource changes at the FBI" after the last of a series of controlled purchases occurred in June 2002, the investigation "resumed in earnest in 2004." Government's Omnibus Resp. to Def. James Becton's Pretrial Mots. at 5-6 (May 30, 2008), reprinted in 1 A.A. 152-53. Among other endeavors, the Government seized crack cocaine from a car parked by Best and an associate in Washington, D.C.; obtained a pen register for the cellular telephone of Fred Mercer, a member of Becton and Best's organization; executed a controlled buy using an informant; and recorded several telephone conversations between Mercer and the informant.

On September 27, 2005, the FBI sought and obtained authorization to wiretap Mercer's cellular telephone. Agent Mary Counts submitted a 49-page affidavit seeking to intercept wire communications to and from this telephone by a number of purported conspirators, including Becton. See Counts Aff. (Sept.2005), reprinted in 1 A.A. 260-308 ("Counts Sept. Aff."). Counts' affidavit provided detailed information about Best and Becton's operation as revealed by three confidential informants, identified as S-1, S-2, and S-3 to protect the sources from retribution. Two of these informants were incarcerated at the time Counts applied for the wiretap. Counts additionally described several seizures and undercover operations that took place in 2003 and 2005 and set forth data obtained pursuant to a pen register for the targeted telephone.

In the September 2005 affidavit, Counts stated her belief that "the interception of wire communications" was the "only available investigative technique ... to establish the full scope and nature" of the conspiracy. Counts Sept. Aff. ¶ 68, 1 A.A. 296. She averred that "normal investigative procedures" had been tried and "failed, appeared reasonably unlikely to succeed if tried or continued, or were too dangerous to employ." Id. ¶ 69, 1 A.A. 296. Although the FBI had employed surveillance, undercover officers, confidential sources, interviews and pen registers, made controlled purchases through cooperating witnesses, and reviewed calling data and public records, Counts averred that these investigative techniques had failed to establish, inter alia, the identities of the persons who supplied the cocaine and crack cocaine, the identities of the persons who transported drugs into the District of Columbia for distribution by the identified co-conspirators, the identities of other persons who assisted with the distribution of the drugs, the manner and frequency with which the co-conspirators transported drugs into D.C., and the locations where they stored their contraband. Id. ¶ 69, 1 A.A. 296-97. Counts explained in detail the conventional investigative techniques employed, the evidence (or lack thereof) revealed by each method, and why further use of each technique would not reveal the identity of all members of the conspiracy, the manner in which the coconspirators distributed drugs, or the manner in which they distributed the proceeds of their operation. For example, three previous search warrants yielded "limited to no evidence," as sources later revealed that Best and Becton had been forewarned that law enforcement action would take place at certain locations and moved their contraband. Id. ¶ 76, 1 A.A. 301-02.

From the September 2005 wiretap of Mercer's phone, the FBI identified a cellular telephone number for Becton and obtained authorization to wiretap this phone from October 27, 2005 to November 25, 2005. After a second wiretap of Mercer's phone revealed a telephone number for Willie Best, the FBI applied for and received authorization in January 2006 to wiretap Best's phone for 30 days, later reauthorized for a second 30-day period. In the January 2006 application for a wiretap on Best's phone, Counts' affidavit described six confidential sources. See Counts Aff. ¶¶ 21-59 (Jan.2006), reprinted in 1 A.A. 199-210 ("Counts Jan. Aff."). The three confidential sources that had not appeared in previous wiretap applications were stated to have begun their cooperation with the FBI in March 2005(S-4), November 1996(S-5), and April 2002(S-6), and were thus working with the FBI at the time it applied for the first wiretap in September 2005. However, all three sources were incarcerated at the time the initial wiretap application was made. After obtaining these six wiretap authorizations, the FBI executed a series of search warrants on May 22, 2006 and May 23, 2007, the latter being the date of the case "take down." Government's Notice of Intrinsic Evidence at 4 (Apr. 18, 2008), reprinted in 1 A.A. 91.

A grand jury charged Becton and ten others with conspiracy to unlawfully, knowingly, and intentionally distribute and possess with intent to distribute (1) fifty grams or more of crack; (2) five kilograms or more of cocaine; and (3) cannabis. Becton was also charged with numerous counts relating to the unlawful use of a telephone to facilitate the conspiracy in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. Charged co-conspirator Willie Best moved to suppress evidence obtained from the six 30-day periods of wiretap surveillance authorized on September 27, 2005 (Mercer's phone); October 27, 2005 (Becton's phone); December 16, 2005 (second wiretap of Mercer's phone); January 27, 2006 (Best's phone); February 24, 2006 (second wiretap of Best's phone); and April 4, 2006 (three additional phones used by Becton). Among other arguments, Best claimed that the Government's wiretap applications had not satisfied the necessity threshold of 18 U.S.C. § 2518, and asked for a Franks v. Delaware hearing, see 438 U.S. at 155-56, 98 S.Ct. 2674. Appellant filed a supplemental memorandum in support of Best's motion to suppress electronic surveillance, adopting Best's arguments and elaborating on the necessity argument. The District Court heard argument on the motion to suppress in July 2008 and orally denied the motion. Tr. of Hearing (July 23, 2008) at 17, 2 A.A. 453.

Becton's trial proceeded from September 15, 2008 to September 30, 2008. The jury found Becton guilty of conspiracy and ten...