U.S. v. Foy

• Decision Date: 23 May 2011
• Docket Number: No. 09–3314.,09–3314.
• Citation: 641 F.3d 455
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Shevel M. FOY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

641 F.3d 455

UNITED STATES of America, Plaintiff–Appellee,

v.Shevel M. FOY, Defendant–Appellant.

No. 09–3314.

United States Court of Appeals, Tenth Circuit.

May 23, 2011.

Robert A. Ratliff, Mobile, AL, on the briefs, for Defendant–Appellant.Barry R. Grissom, United States Attorney, and Terra D. Morehead, Assistant United States Attorney, District of Kansas, Kansas City, KS, on the brief, for Plaintiff–Appellee.Before O'BRIEN, Circuit Judge, and SEYMOUR and TACHA, Senior Circuit Judges.TACHA, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

In 2009, a jury found defendant-appellant Shevel Foy guilty of: (1) conspiring to manufacture, possess with intent to distribute, or to distribute cocaine base and/or cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii), 846 and 18 U.S.C. § 2; and (2) attempting to possess with intent to distribute between 500 grams and less than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), 846 and 18 U.S.C. § 2. The district court imposed concurrent sentences of 360 months' imprisonment for each charge. Mr. Foy now appeals various aspects of his convictions and sentences. We take jurisdiction under 28 U.S.C. § 1291. We AFFIRM Mr. Foy's conviction and sentence for conspiracy, but we VACATE his conviction and sentence for criminal attempt due to improper venue.

I. BACKGROUND

Mr. Foy's convictions stem from his participation in a vast conspiracy to distribute cocaine and cocaine base in and around Kansas City, Kansas and Kansas City, Missouri from January 2006 to November 2007. The Drug Enforcement Administration (“DEA”) began investigating the conspiracy in 2006 at the request of the Leavenworth, Kansas police department. After attempting various traditional investigative techniques (e.g., surveillance, confidential informants, and search warrants) and finding them to be ineffective means of uncovering the size and scope of the conspiracy, federal law enforcement officers decided to seek wiretaps.

By statute, before a law enforcement officer may submit a wiretap application to a federal judge, he must obtain authorization from a statutorily designated executive official or an executive official whom the Attorney General designates, and he must identify the authorizing official in the application. See 18 U.S.C. § 2516(1) (listing the executive officers who may authorize a wiretap application) and § 2518(1)(a) (requiring that all wiretap applications include “the identity of ... the officer authorizing the application”). In this case, the investigating officers submitted multiple applications for wiretaps and for extensions of wiretaps on the phones of various suspected conspirators from August to October 2007. Each of these applications referenced an outdated Attorney General Order (“AG Order”) delegating authority to the official who authorized the application. Nevertheless, each wiretap application was approved by the district judge considering it.

One of the telephones tapped by officers belonged to Mr. Foy's co-defendant, Monterial Wesley. The conversations intercepted from Mr. Wesley's phone revealed that he and Mr. Foy were partners in drug trafficking. For instance, officers intercepted conversations in which Mr. Foy and Mr. Wesley: (1) discussed pooling their money together to pay for large quantities of cocaine; (2) discussed how to resolve an $8,000 deficiency in their payments to their drug source, Thomas Humphrey; (3) coordinated the distribution of large amounts of fronted drugs; and (4) discussed absconding with large amounts of fronted drugs. Additionally, while conducting surveillance, officers observed Mr. Foy at the scene of multiple drug transactions between Mr. Wesley and Mr. Humphrey.

Once officers identified Mr. Foy as a participant in the conspiracy, they set up a “pole camera” at his home in order to have twenty-four hour surveillance of his residence. On October 17, 2007, the camera captured an attempted burglary at Mr. Foy's home. When officers arrived at the scene to investigate the burglary, they observed a bullet hole in the front door and other bullet holes inside the home. Additionally, officers intercepted a conversation between Mr. Foy and Mr. Wesley shortly after the attempted burglary in which the two discussed whether any money had been taken.

On November 27, 2007, officers arrested Mr. Wesley while he was purchasing drugs from Mr. Humphrey at a car wash. The officers seized five kilograms of cocaine from Mr. Humphrey's vehicle, $2,294 from Mr. Wesley, and a firearm from Mr. Wesley's vehicle.

On February 1, 2008, Mr. Foy was charged along with twenty-three other individuals in a 39–count superceding indictment. Specifically, Mr. Foy was charged with: one count of conspiracy to manufacture, possess with intent to distribute, or to distribute cocaine base and/or cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii), 846 and 18 U.S.C. § 2; three counts of attempting to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), 846 and 18 U.S.C. § 2; and one count of using a communication device to facilitate a drug trafficking offense in violation of 21 U.S.C. § 843(b).

Prior to trial, Mr. Foy filed a motion to suppress the evidence obtained from the wiretaps. Principally, he argued that the wiretaps should be suppressed because the officers incorrectly referenced the source of their authority to file the wiretap applications and because wiretaps were not necessary to uncover the size and scope of the conspiracy. The district court denied the motion, and at trial, much of the government's evidence against Mr. Foy consisted of the incriminating conversations obtained from the wiretaps. The jury ultimately found Mr. Foy guilty of the conspiracy and attempt charges, but it acquitted him of the charge of using a communication device to facilitate a drug transaction.

Shortly after his conviction, Mr. Foy filed a motion for a new trial and a motion for judgment of acquittal. In the motion for a new trial, Mr. Foy argued that one of the jurors brought extrinsic evidence into the jury deliberations which affected the verdict and prejudiced Mr. Foy. In the motion for judgment of acquittal, Mr. Foy argued that the government failed to establish that the District of Kansas was a proper venue for the prosecution of the charges against him. The district court denied Mr. Foy's motion for a new trial, denied his motion for judgment of acquittal with respect to the conspiracy charge and one of the attempt charges, but granted him acquittal on the other two attempt charges.

A Presentence Investigation Report (“PSR”) was prepared which determined that Mr. Foy was accountable for at least 150 kilograms of cocaine, giving him a base offense level of thirty-eight. See United States Sentencing Guidelines (“U.S.S.G.” or “guidelines”) § 2D1.1(c)(1). The PSR then applied a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm in connection with a drug trafficking offense. Combining the total offense level of forty with Mr. Foy's criminal history, which the PSR calculated to be category I, the PSR recommended a guidelines range of 292 to 365 months' imprisonment. After hearing further testimony regarding Mr. Foy's past drug trafficking activity, the district court adopted the PSR's findings and ultimately sentenced Mr. Foy to concurrent sentences of 360 months' imprisonment. This appeal followed.

II. DISCUSSION

A. Motion to Suppress

Mr. Foy first argues that the district court erred in denying his motion to suppress evidence obtained from the wiretaps. Specifically, he contends that the wiretap evidence should have been suppressed because: (1) the officers failed to properly establish authorization in their wiretap applications; and (2) the affidavits in support of the wiretaps did not establish necessity.

1. Misidentification of the Order Delegating Authority to Authorize Wiretap Applications

As noted above, law enforcement officers must obtain authorization from an executive official before submitting a wiretap application to a federal judge, and they must identify the authorizing official in the application itself. See 18 U.S.C. §§ 2516(1) and 2518(1)(a); see also United States v. Iiland, 254 F.3d 1264, 1267 (10th Cir.2001) (setting forth the procedure for obtaining a wiretap order). The Attorney General may specially designate certain executive officials to authorize wiretap applications. 18 U.S.C. § 2516(1). When the Attorney General delegates the power to authorize wiretap applications via an AG Order, law enforcement officers reference the specific order in their wiretap applications.

Evidence obtained from a wiretap must be suppressed “if the disclosure of that information would be in violation of [the wiretap statutes].” Id. § 2515. Aggrieved persons may move to suppress such evidence when “the communication was unlawfully intercepted” or “the order of authorization or approval under which [the communication] was intercepted is insufficient on its face.” Id. § 2518(10)(a)(i), (ii).¹

Not all deficiencies in wiretap applications, however, warrant suppression. See United States v. Chavez, 416 U.S. 562, 574–75, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974) (stating that not “every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful’ ”); cf. United States v. Radcliff, 331 F.3d 1153, 1160 (10th Cir.2003) (refusing to suppress evidence when deficiency in wiretap order “constituted a technical defect that did not undermine the purposes of the...