717 F.2d 1481 (4th Cir. 1983), 82-5274, United States v. Hines

Docket Nº:82-5274(L), 82-5275 to 82-5278 and 82-5286.
Citation:717 F.2d 1481
Party Name:UNITED STATES of America, Appellee, v. Ronald Doyle HINES, Appellant. UNITED STATES of America, Appellee, v. Gary J. PEED, Appellant. UNITED STATES of America, Appellee, v. Teresa ELEAZAR, Appellant. UNITED STATES of America, Appellee, v. James Maurice JACKSON, Appellant. UNITED STATES of America, Appellee, v. James C. CODDINGTON, Appellant. UNITED
Case Date:September 09, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1481

717 F.2d 1481 (4th Cir. 1983)

UNITED STATES of America, Appellee,

v.

Ronald Doyle HINES, Appellant.

UNITED STATES of America, Appellee,

v.

Gary J. PEED, Appellant.

UNITED STATES of America, Appellee,

v.

Teresa ELEAZAR, Appellant.

UNITED STATES of America, Appellee,

v.

James Maurice JACKSON, Appellant.

UNITED STATES of America, Appellee,

v.

James C. CODDINGTON, Appellant.

UNITED STATES of America, Appellee,

v.

Jeffrey Craig BUMGARDNER, Appellant.

Nos. 82-5274(L), 82-5275 to 82-5278 and 82-5286.

United States Court of Appeals, Fourth Circuit

September 9, 1983

        Argued July 14, 1983.

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        William J. Sheppard, Jacksonville, Fla. (Elizabeth L. White, Jacksonville, Fla., on brief), and Gary S. Lawrence, Raleigh, N.C. (Steven D. Kupferberg, Baltimore, Md., Hugh Clifton Talton, Jr., Smithfield, N.C., Christine Witcover Dean, Raleigh, N.C., Edwin C. Walker, on brief), for appellants.

        William E. Martin, Asst. U.S. Atty., Raleigh, N.C. (Samuel T. Currin, U.S. Atty., Wallace W. Dixon, Asst. U.S. Atty., Raleigh, N.C., James G. Lindsay, U.S. Dept. of Justice, Washington, D.C., on brief), for appellee.

        Before PHILLIPS, SPROUSE and ERVIN, Circuit Judges.

        ERVIN, Circuit Judge:

        Ronald Doyle Hines, Gary J. Peed, Teresa Eleazar, James "Bubba" Jackson, James Coddington and Jeffrey Bumgardner appeal from the United States District Court for the Eastern District of North Carolina wherein they were tried for conspiracy to

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possess with intent to manufacture and distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and of using a communication facility to facilitate the cocaine conspiracy in violation of 21 U.S.C. Sec. 843(b).

        Viewing the evidence in the light most favorable to the government, the prosecution's case at trial established the existence of a two-tier conspiracy. The first tier was headquartered in Apex, North Carolina, under the command of James "Jacques" Provost. Jacques had two investors or partners in the first tier, Gary Peed of Virginia and James Coddington of Orlando, Florida. The first tier had three employees who acted as drug couriers, Jacques's son Darryl Provost, Peter Stisser, and Bubba Jackson. Darryl and Peter turned government witnesses and provided the crucial trial testimony against their co-conspirators.

        The second tier was the smaller and local operation in Jacksonville, Florida, including Ronald Hines, Jeffrey Bumgardner and Teresa Eleazar. Contacts between the two tiers were made by Bubba Jackson, Eleazar's brother.

        The jury found appellants guilty of both counts, except that Eleazar was acquitted on the telephone facilitation count. Peed, Coddington, and Jackson were sentenced to four years imprisonment plus five years probation. Hines, Eleazar and Bumgardner received six months imprisonment with five years probation.

        On appeal, the appellants claim nine reversible errors in their trial. Finding no merit to any of the challenges, we affirm.

       I.

        In September, 1980, a double murder occurred in Jacksonville Beach, Florida. In July, 1981, two Jacksonville Beach police investigators, Officers Dorn and Maxwell, learned that "Bones" Merrill might have acted as a lookout during the murders. Bones was questioned and agreed to act as an informant in the investigation of Jacques Provost, who was suspected of having ordered the murders to avenge a delinquent drug debt and is now deceased.

        Beginning on July 27, 1981, Bones made seven or eight consensually recorded phone calls from pay telephones in Jacksonville Beach to Jacques's home in St. Johns County, Florida, which was outside Dorn's and Maxwell's bailiwick. Since most of the information obtained concerned Jacques's ongoing drug operations, on July 29, 1981, the information was turned over to Agent Alford of the Florida Department of Law Enforcement, an agency with statewide jurisdiction.

        On August 29, Alford obtained an electronic surveillance warrant for Jacques's St. Johns County home. Alford eventually learned that Jacques had moved the center of his drug operations to a house in Apex, North Carolina.

        Alford passed the information on to Agent Johannesen of the Federal Drug Enforcement Agency ("DEA") in Raleigh, North Carolina. Johannesen used the information to obtain a wiretap on Jacques's telephone in Apex from September 29, 1981 to October 14, 1981. Information developed from the wiretap led to the indictments of the appellants.

        Appellants complain that the Apex wiretap evidence should have been suppressed because it was the fruit of the Florida consensual monitoring and electronic surveillance, which appellants contend were illegal. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The consensual monitoring allegedly was illegal because officers Maxwell and Dorn were operating outside their jurisdiction. Appellants challenge the electronic surveillance on the grounds that it was issued based on an affidavit that contained intentional, reckless, and material misrepresentations.

        Appellants contend that Maxwell and Dorn, Jacksonville Beach police officers, acted outside their jurisdiction by consensually monitoring Bones's nine pre-August 6, 1981 calls to Jacques's St. Johns County home. Maxwell and Dorn were not deputized in St. Johns County until August 6, 1981. Appellants rely on Wilson v. Florida, 403 So.2d 982 (Fla.1980), in which Lake

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City, Florida, police officers conducted an investigation into Wilson's possession of drugs outside the municipal limits of Lake City. In conducting the investigation, the officers employed an electronic listening device that was hidden on an informant who purchased drugs from Wilson outside Lake City. The court held that fruits of the electronic surveillance could not form the basis for the issuance of a search warrant because the officers were without authority to conduct the investigation.

        Wilson, however, is distinguishable from the present case. In Wilson, the investigation was into the possession of contraband outside Lake City. The Wilson court indicated, 403 So.2d at 984, that it would have reached a different result had the investigation been into Wilson's illegal acts within Lake City: "a municipal police officer ... may conduct investigations outside the city limits ... where the subject matter of the investigation originated inside the city limits, State v. Chapman, 376 So.2d 262 (Fla. 3d DCA 1979); Parker v. State, 362 So.2d 1033 (Fla. 1st DCA 1978)." Here, the subject matter of the investigations, the 1980 double murder in Jacksonville Beach, did originate within the city limits.

        Of the nine pre-August 6 telephone calls, the first seven or eight were made from Jacksonville Beach, so Maxwell and Dorn were within their jurisdiction. Furthermore, since Dorn and Maxwell brought agent Alford, who had statewide jurisdiction, into the investigation on July 29, the monitoring of Bones's calls from Jacksonville were under the direction of Alford; i.e. the officers acted "under color of law," 28 U.S.C. Sec. 2511(2)(c), or "under the direction of a law enforcement officer," Fla.Stat. 934.03(2)(c). 1 Thus, the pre-August 6 calls comply with both the federal and state consensual monitoring statutes. 2

        Appellants contend that the application of agent Alford for the Florida wiretap contained material misrepresentations which were intentionally and recklessly made and which were necessary to the finding of probable cause and, thus, that the Florida wiretap evidence was illegally seized under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The alleged misrepresentations are that (1) Bones was a collector of drug debts for Jacques, (2) Bones revealed that Jacques imported drugs and was putting together an airplane scheme involving 15 kilograms of cocaine, (3) Jacques told Bones that he had some "heavy business", wanted Bones to work for him, and was meeting with some business associates to plan a large transaction, (4) Bones and Jacques discussed the details of a trip down south, (5) Jacques told Bones that he was waiting for a phone call and would know more after he received it, and (6) Darryl Provost told Bones that

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there was a change of plans and Bubba Jackson was going up north to collect some money.

        Our review of the record, however, indicates that the alleged misrepresentations either did not occur or were immaterial: (1) during an August 3, 1981 interview of Bones by Maxwell and Dorn, Bones indicated that he collected drug debts in New York and Atlanta for Jacques; (2) during the August 3 interview, Bones and the officers discussed the plane deal; (3) while Jacques did not say he had some "heavy" business, he did say "I got two business people with me" who are "real business" people and "ah man, if you could see all the [stuff] that Mike and Bang put me in its unbelievable," and arranged for Bones to come to Jacques's home to discuss work; (4) Jacques told Bones on July 30, 1981 that "I was thinking of sending you with [Darryl] down south" and "I don't know what time you guys be leaving, but I would around twelve"; (5) although Jacques did not say he was waiting on a phone call, he did tell Bones that for the moment he had nothing for Bones to do, but that he was "waiting for somebody to be here" so Bones should call back "around supper,"; and (6) Bones's telephone call of August 1 and August 5 interview, when read together, indicate that Jackson had traveled north and Jacques was waiting for him to bring back some money. Not only are there no material misrepresentations, but there is no indication that the minor inaccuracies were intentional or reckless. Thus, the...

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