639 F.3d 423 (8th Cir. 2011), 09-3750, United States v. Gaines

Docket Nº:09-3750, 09-3754.
Citation:639 F.3d 423
Opinion Judge:SMITH, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Bernard NMN GAINES, aka Smiley, Appellant. United States of America, Appellee, v. Jerry Martese Dubose, aka Ray, Appellant.
Attorney:Frederick J. Goetz, argued, Minneapolis, MN, for appellant. Steven J. Meshbesher, argued, Kevin M. Gregorius, on the brief, Minneapolis, MN, for appellant Dubose. Ann Anaya, AUSA, argued, St. Paul, MN, for appellee.
Judge Panel:Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
Case Date:May 04, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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639 F.3d 423 (8th Cir. 2011)

UNITED STATES of America, Appellee,

v.

Bernard NMN GAINES, aka Smiley, Appellant.

United States of America, Appellee,

v.

Jerry Martese Dubose, aka Ray, Appellant.

Nos. 09-3750, 09-3754.

United States Court of Appeals, Eighth Circuit.

May 4, 2011

Submitted: Oct. 21, 2010.

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[Copyrighted Material Omitted]

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Frederick J. Goetz, argued, Minneapolis, MN, for appellant.

Steven J. Meshbesher, argued, Kevin M. Gregorius, on the brief, Minneapolis, MN, for appellant Dubose.

Ann Anaya, AUSA, argued, St. Paul, MN, for appellee.

Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

Bernard Gaines and Jerry Dubose, along with twelve others, were indicted for their alleged involvement in a conspiracy to distribute cocaine and crack cocaine. Ultimately, Gaines pleaded guilty and, subsequently, testified against Dubose, who elected to stand trial. Prior to his trial, Dubose moved to suppress recordings of wiretapped telephone conversations that he had with his alleged coconspirators, arguing that the recordings were obtained in violation of his rights under the Fourth Amendment because the initial wiretap application and resulting order failed to particularly identify all potential conversants who might be overheard on the wiretapped phone line. The district court 1 denied Dubose's motion, and, following a two-day trial at which Gaines testified, a jury found Dubose guilty. Thereafter, at Gaines's sentencing, the district court found Gaines to be a " manager or supervisor" of the drug conspiracy under U.S.S.G. § 3B1.1(b) and applied a three-level enhancement to his base-offense level pursuant to that provision. Gaines and Dubose appeal. Gaines appeals the district court's determination that he was a manager or supervisor of the conspiracy, and Dubose appeals the district court's denial of his pretrial motion to suppress. We affirm both judgments.

I. Background

In August 2007, Minneapolis Police and the Federal Bureau of Investigation (FBI) commenced " Operation Sabotage" (OS), a joint effort between local and federal law enforcement to interdict a drug network believed to operate between Chicago, Illinois, and Minneapolis, Minnesota. On February 21, 2008, after several months of " traditional" investigative methods by OS agents, including visual surveillance, search warrants, garbage pulls, and controlled purchases of narcotics, the United States Attorney's Office applied to the United States District Court for the District of Minnesota, for a wiretap order pursuant to 18 U.S.C. § 2518 (" Title III" ).2 The application sought authorization to intercept calls to and from a " target" cellular phone purportedly subscribed to the username of " Vegas Smith" and linked to the billing name of a " Joe Green" residing in St. Paul, Minnesota. The application asserted that Mario Leon Tyson actually owned and used the target phone. In support of the wiretap application, FBI Special Agent James Somerville submitted the statutorily required affidavit, identifying Tyson and other named individuals believed to be engaged in the drug network.

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Specifically, Agent Somerville swore that " ‘ there is probable cause to believe Mario Tyson, Bernard Gaines, ... and others as yet unknown, have committed and are committing, and will continue to commit violations of [several firearm, drug trafficking, and money laundering offenses].’ " Additionally, Agent Somerville swore that he had probable cause to believe a wiretap of the target phone would intercept conversations of Tyson, Gaines, and others discussing their crimes. Agent Somerville's affidavit made no mention of Dubose.

A District of Minnesota district judge authorized the requested 30-day wiretap surveillance of Tyson's phone. Beginning on February 25, law enforcement commenced the surveillance, intercepting 15 " pertinent calls" between Tyson and Dubose. On March 17, 2008, the United States Attorney's Office successfully applied for authorization to tap a second target phone, this time naming Dubose as a participant in the drug network. Agent Somerville's affidavit noted Dubose's involvement on the previously intercepted calls to establish probable cause. Finally, on March 31, 2008, the United States Attorney's Office successfully applied for a third wiretap, again naming Dubose in the application as a criminal participant whose conversations it aimed to intercept.

On July 22, 2008, Gaines, Dubose, and 12 others were indicted, each charged with one count of conspiracy to distribute cocaine and crack cocaine. Gaines pleaded guilty and ultimately testified against Dubose, who elected to stand trial. Dubose moved to suppress the evidence obtained by the wiretaps. The district court denied Dubose's motion to suppress. After reviewing Agent Somerville's affidavit, the district court concluded that it " set[ ] forth sufficient probable cause that ‘ others yet unknown’ were involved in the alleged drug trafficking[,]" and that " [w]hile [Dubose] challenges the amount of information contained in the affidavit devoted to whether ‘ others unknown’ were involved in the conspiracy, the Court is not to review supporting affidavits ‘ in a hypertechnical manner, but rather with an eye toward a commonsense determination.’ " The district court concluded that " the affidavits viewed as a whole set forth sufficient facts to support a reasonable belief a crime was being committed, and that others unknown were involved."

Thereafter, Dubose's case proceeded to trial, where Gaines testified against him, implicating Dubose and others in the drug network. Following a two-day trial, the jury found Dubose guilty on the sole drug-conspiracy count, and, subsequently, the district court sentenced Dubose to 120 months' imprisonment.

For Gaines's part, he testified at Dubose's trial that between 2006 and 2008, he (Gaines) purchased cocaine in kilo quantities on two occasions from Dexter Fields, the apparent Chicago-based supplier of the entire Minneapolis-based consortium to which Gaines was a party. According to the factual recitation in Gaines's presentence investigation report (PSR), to which he took no exception,3 " in approximately March 2008, Gaines traveled to Chicago and purchased one kilogram of cocaine from Fields and Nelson for $23,000," and, subsequently, Gaines " sold 500 grams of cocaine to others and converted the remaining 500 grams into cocaine base before distributing it to others." The PSR further provides that, on a different, undisclosed

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date, " Gaines purchased another [one] kilogram of cocaine from Fields through Nelson for an additional $23,000."

Gaines's testimony at Dubose's trial, coupled with the PSR's unobjected-to findings, reveals that Gaines's primary enterprise responsibilities included dividing, preparing, packaging, and distributing cocaine to lower distributors and sellers. In his brief to this court, Gaines summarized his trial testimony by stating that, upon receiving powder cocaine in bulk from Fields in Chicago, he " would then separate the powder cocaine into ‘ 9's, 4's, and 63's,’ " a " 9" being nine ounces, a " 4" being four and one-half ounces, and a " 63" being 63 grams of cocaine. Finally, Gaines confirms that, " [a]t various times, [he] sold cocaine to co-defendants Turnipseed, Woods, Tyson, Dubose, Holmes, Robinson, Shoals, Griffin, Kirk, and Lloyd," and further, that Gaines " set the price on the cocaine he sold" to these individuals, but notes that " [t]here is no evidence ... that [he] told others what to charge for the cocaine they would resell." The PSR matched Gaines's testimony and supplements that, " [f]ollowing a proffer session with the authorities, a firearm and 441 grams of cocaine base was recovered from Gaines'[s] residence." Moreover, " [i]ncluding the...

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