U.S. v. O'Connell

Decision Date14 March 1988
Docket NumberNos. 86-5311,s. 86-5311
Citation841 F.2d 1408
Parties25 Fed. R. Evid. Serv. 461 UNITED STATES of America, Appellee, v. Daniel W. O'CONNELL, a/k/a Edward Smith, Appellant. UNITED STATES of America, Appellee, v. Gregory J. COOKE, Appellant. UNITED STATES of America, Appellee, v. Patrick Basil COLLIER, Appellant. UNITED STATES of America, Appellee, v. William R. PATTERSON, II, Appellant. UNITED STATES of America, Appellee, v. Richard Allen ST. CYR, a/k/a Dexter, Appellant. to 86-5315.
CourtU.S. Court of Appeals — Eighth Circuit

Alan S. Ross, Miami, Fla., for O'Connell.

Andrew S. Birrell, Minneapolis, Minn., for Cooke.

Charles L. Hawkins, St. Paul, Minn., for Collier.

Mark Peterson, Minneapolis, Minn., for Patterson.

Paul Engh, Minneapolis, Minn., for St. Cyr.

Richard E. Vosepka, Asst. U.S. Atty., for appellee.

Before McMILLIAN, Circuit Judge, FAIRCHILD, * Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

These appeals arise from the conviction of Daniel W. O'Connell, Gregory Cooke, Patrick Collier, William R. Patterson, and Richard Allen St. Cyr for thirty offenses related to the operation of a large marijuana distribution scheme in the Minneapolis, Minnesota area. The appellants were charged with eleven others who pleaded guilty, nine of whom testified at trial. Appellants were convicted of conspiracy and possession with intent to distribute marijuana and numerous other charges. 1 The primary issues raised on appeal involve the propriety of admitting evidence obtained from telephone wiretaps, the stop and search of an automobile, the admitting of an audiotape of telephone calls taken from a recording machine in O'Connell's warehouse, and the propriety of the district attorney's closing argument. Additional issues include the sufficiency of the evidence, the admission of evidence of other wrongful acts, and the denial of motions for severance. The judgment entered by the district court 2 is affirmed.

The drug operation giving rise to this prosecution had been in existence for several years before it was terminated by arrests and seizures in February of 1985. Daniel O'Connell and Gregory Cooke leased adjoining warehouse space in Opa Locka, Florida. When a shipment of marijuana was available, drivers would pick up the marijuana from these warehouses and transport it to Minnesota. At least four different Lincoln Continentals were used for these trips. Cooke paid drivers working for him $1,000 cash for each trip from Florida to Minnesota, and $500 cash for returning an empty Lincoln from Minnesota. Patrick Collier was among the drivers working for Cooke.

Timothy Lyons, the head of the Minnesota distribution network, testified on behalf of the government. He entered a guilty plea to a continuing criminal enterprise charge as part of an agreement that other charges would not be filed against him. In Minnesota, Lyons used several "stash houses" to direct distribution of the marijuana. Cooke and Lyons rented these houses and would change the location yearly, the last one being located in Maple Grove, Minnesota. From these houses, Lyons distributed marijuana to approximately ten dealers, including William Patterson and Richard St. Cyr. Patterson handled the largest volume and was the most dependable of Lyons' dealers. Deliveries to St. Cyr were considerably smaller because St. Cyr was incarcerated during most of the indictment period. Nonetheless, St. Cyr continued to distribute marijuana through others acting on his behalf. The marijuana was consigned or "fronted" at each level of distribution. As dealers collected from their customers, they would pay Lyons, who paid Cooke, who would in turn pay O'Connell. Unsold marijuana was returned. The cycle would begin again every three to six weeks with occasional "vacations".

The federal authorities' investigation into this case began in 1982 when a Drug Enforcement Administration agent received information that Timothy Lyons and his brother Casey were involved in drug trafficking. By the end of 1984, federal agents had run pen registers on telephones of four of the defendants, conducted surveillance of the organization, and observed several controlled buys. The agents compiled the information they had gathered in a wiretap application, which was approved on February 1, 1985. Wiretaps were placed on two telephone lines, one listed to Blue Star Trucking and used primarily by Timothy Lyons, and one listed to Charles O'Brien. 3

The wiretap provided the government with substantial evidence linking all of the defendants except O'Connell to the conspiracy. The government offered fifty-six intercepted conversations in evidence at trial. Many of these related to collection efforts on behalf of Timothy Lyons and plans to transport shipments of marijuana from Florida.

Through the wiretap, agents discovered that Casey Lyons and Patrick Collier would be driving a load of marijuana from Miami on February 22, 1985, and were due to arrive in the Minneapolis area on the 25th. Search warrants were obtained for the Maple Grove "stash house," the residence of Timothy Lyons, the Florida warehouses rented by Cooke and O'Connell, and seven individuals, including Timothy Lyons and Cooke. Officers saw Casey Lyons drive a Lincoln Continental with license MLU-045 away from the Florida warehouse on February 22, 1985. The same vehicle was seen driving into the garage of the house in Maple Grove, Minnesota on February 25.

On February 25, 1985, federal and state agents conducted a search of the Maple Grove stash house. There they found numerous weapons, sizeable amounts of cash, and eight bales of marijuana weighing approximately 440 pounds. The officers also found notes relating to marijuana transactions, including an itemized list of 16 bales of marijuana which was written by Cooke and found in Timothy Lyons' possession. Several suspects were arrested at the house, including William Patterson and Patrick Collier. During the search, Special Agent Richard Anderson was stationed outside the house. He observed a Lincoln Continental pass by, pull into a driveway, then back out and return. Agent Anderson knew that Lincolns were involved in the operation. He stopped the car and after Cooke was identified as the driver, he was taken inside, searched, and arrested pursuant to warrant.

On the same day, eight more bales of marijuana, packaged like those found in Minnesota, were seized at O'Connell's Florida warehouse. 4 Also seized at O'Connell's warehouse was an audiotape of telephone calls from a recording machine, which contained conversations involving O'Connell and other members of the group. These conversations revealed that O'Connell had the keys for, knew the whereabouts of, and controlled the four Lincolns used in transporting marijuana to Minnesota, and included one call in which O'Connell discussed arrangements for a "round trip" in the near future. In another call, O'Connell stated that he was waiting for Cooke to arrive and "bring me my money." Notes found at Lyons' house showed drug debts of both Patterson and St. Cyr, and documents seized from various places reflected the organization's high level of profits.

On December 18, 1985, a federal grand jury in Minnesota returned a 75-count indictment charging sixteen individuals with various criminal violations. Eleven of the defendants pleaded guilty to one or more charges before trial, and nine of these testified for the government. On April 24, 1986, the remaining defendants, Gregory Cooke, William R. Patterson, Daniel W. O'Connell, Patrick Collier and Richard Allen St. Cyr, went to trial on the remaining twenty-five counts and a total of thirty-six charged offenses.

The trial was a long and heated affair. It continued for over five weeks, and closing arguments alone consumed two full days. When the dust had cleared, the jury was sent to deliberate on thirty-one charged offenses. Thirty verdicts of guilt were returned, which we have detailed above. See supra note 1. The district court sentenced O'Connell to twenty-five years imprisonment, a $250,000 fine, and a five-year special parole term. Cooke received twenty-five years imprisonment without parole pursuant to CCE provisions, a $100,000 fine, and a three-year special parole term. Patterson received ten years imprisonment, a $5,000 fine, and a three-year special parole term. St. Cyr was sentenced to eight years imprisonment, and Collier to five years imprisonment.

We affirm the judgment of the district court in all respects. Additional facts material to our determination of the issues raised on appeal are recited below.

I.

Patterson, joined by Collier and St. Cyr, argues that the district court improperly ordered wiretaps for the telephones listed to Charles O'Brien and Blue Star Trucking and erroneously admitted the evidence obtained thereby. Patterson alleges four grounds of error, which we consider in turn.

A.

First, Patterson contends that the government's application for the wiretap and the district court's order authorizing it failed to establish the ineffectiveness of normal investigative techniques. Patterson correctly argues that an application for a wiretap must contain a "full and complete statement" of the facts justifying an authorization order, including discussion of other investigative procedures. 18 U.S.C. Sec. 2518(1)(b), (c) (1982). In addition, an authorization order may only be granted "if the judge determines on the basis of the facts submitted by the applicant that * * * normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous * * *." 18 U.S.C. Sec. 2518(3)(c) (...

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