U.S. v. Carneiro, s. 87-3134

Citation861 F.2d 1171
Decision Date22 November 1988
Docket NumberNos. 87-3134,s. 87-3134
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph R. CARNEIRO, Terry L. Johnson, George L. Ennis, Larry Emerson, Thomas Francis Begley, Willie Williams, Thomas J. Boyd, Defendants-Appellants. to 87-3137, 87-3139, 87-3141 and 87-3142.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Phillip J. Wetzel, Perrizo and Wetzel, Spokane, Wash., for defendant-appellant, Carneiro.

Leslie R. Weatherhead, Witherspoon, Kelley, Davenport & Toole, Spokane, Wash., for defendant-appellant, Emerson.

Robert H. Whaley, Carl E. Hueber, Winston & Cashatt, Spokane, Wash., for defendant-appellant, Thomas J. Boyd.

Jeffry K. Finer and Patrick K. Stiley, Stiley & Associates, Spokane, Wash., for defendant-appellant, Begley.

Jeffrey Steinborn, Seattle, Wash., for defendant-appellant, Ennis.

Robert Henderson, Henderson & Nichols, Spokane, Wash., for defendant-appellant, Johnson.

Lewis M. Wilson, Spokane, Wash., for defendant-appellant, Williams.

James R. Shively, Asst. U.S. Atty., Spokane, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before SCHROEDER, ALARCON and NORRIS, Circuit Judges.

ALARCON, Circuit Judge:

In this criminal action the seven appellants entered conditional guilty pleas to narcotics offenses. They appeal from the denial of their motions to suppress incriminating

evidence obtained by the Drug Enforcement Administration (DEA) through the use of four judicially approved wiretaps. The wiretaps were issued by a district court judge under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2520 (1982 & Supp. II 1984). The appellants argue that the four wiretaps were invalid because they failed to satisfy statutory and constitutional requirements. We affirm in part, reverse in part, and remand.

I BACKGROUND

On June 25, 1985, Patrick Fazio contacted DEA Agents Williams and Sanchez in Spokane, Washington. Fazio claimed to have connections with numerous cocaine and marijuana dealers in eastern Washington and offered to sell information about these individuals to the DEA. At the time that he volunteered to sell the information, Fazio was not a suspect nor a target of investigation in any crime.

Fazio identified a Spokane drug dealing ring involving Thomas Boyd, Ray Harty, and numerous other participants. However, at the time that Fazio identified the ring, he was not sufficiently familiar with the suspects to arrange a controlled purchase. 1 Nevertheless, he agreed to help the DEA in other drug cases. Eventually, with Fazio's assistance, the DEA was able to infiltrate the Boyd-Harty drug ring through a series of five controlled drug purchases.

A. First Purchase

On July 29, 1985, Fazio told the DEA that he had information that William Weeks was involved in a local cocaine distribution ring. Fazio arranged to meet Weeks on July 30, 1985 to purchase cocaine. On that day, Weeks took Fazio to the home of Shari Jackson where Fazio bought two grams of cocaine for $200. Weeks told Fazio that his partner, Cara Cunningham, lived at that address. Weeks also stated that (1) his source of cocaine had been in business for 40 years, (2) his source's drugs came from Amsterdam, and (3) the drug inventory was not kept at the source's home. Before he left, Fazio arranged to buy one ounce of cocaine from Weeks on Friday, August 2, 1985. Weeks then made a telephone call to his drug source to verify Fazio's one ounce order. During that call, Weeks asked the source to return his telephone call on August 2, 1985.

B. Second Purchase

On August 2, 1985, the DEA installed a trap and trace device on Shari Jackson's telephone line. 2 That afternoon, the trap and trace device recorded an incoming call from Charles McNeil's residence. Later that afternoon at a local hotel, Fazio introduced undercover DEA Agent Mary McElderry to Weeks as a cocaine purchaser. Agent McElderry then took Fazio and Weeks to a room at the hotel to discuss the one ounce cocaine purchase. Shortly thereafter, Weeks and Fazio left the hotel room and Cara Cunningham entered to deliver the cocaine to Agent McElderry. Weeks then reentered the room, discussed further purchases with McElderry, and then departed with Cara.

C. Third Purchase

On August 29, 1985, the DEA began surveillance of Charles McNeil, whom the DEA suspected was Weeks' source of drugs. 3 The DEA agents observed McNeil and his companion, Trena Dent, follow Weeks to and from a meeting with McElderry. Agent McElderry and Fazio met with Weeks at a restaurant to purchase

one ounce of cocaine. During the sale, Weeks identified his four Spokane drug retailers as: Sandy Long, Tammy Browning, Angie (last name unknown), and Cara Cunningham.

D. Fourth Purchase

On September 28, 1985, Agent McElderry again met with Weeks at a hotel to purchase one and a half ounces of cocaine. Before this transaction, DEA agents observed Weeks and McNeil meet at Weeks's home and then depart for the hotel in separate cars. McNeil waited in his car outside the hotel while Weeks went in to sell the cocaine to McElderry. At one point during the sale, Weeks told Agent McElderry that he had to leave temporarily to "pay his man." Weeks then went to McNeil's car, returned to McElderry, and sold her an additional two grams of cocaine. After Weeks left his car, McNeil drove to the home of suspected drug dealer Ray Harty. 4

E. Fifth Purchase

On November 7, 1985, Agent McElderry met with Weeks to purchase three more ounces of cocaine. Before this meeting, DEA agents observed McNeil and Dent meet with Weeks at Shari Jackson's house. Shortly thereafter, McNeil and Dent left the Jackson residence and returned to their house where they immediately placed a call to Ray Harty's residence. 5 Meanwhile, Weeks executed the sale of cocaine to Agent McElderry. During the course of the sale, Weeks told McElderry that he had just met with his source of cocaine.

F. The Wiretaps

After the five controlled purchases were made, Agent Sanchez learned that Spokane police officers, working undercover, had purchased cocaine from Shari Jackson on November 12 and 16, 1985. During the November 16 sale, Jackson told the undercover Spokane officer that "Bill" was her source of cocaine. Agent Sanchez believed that "Bill" was William Weeks. Agent Sanchez also learned that Spokane police had purchased cocaine from Karl Klauder on November 26, 1985. 6

On January 8, 1986, Agent McElderry called Weeks, asked about buying six ounces of cocaine, and requested a meeting with Weeks' source. Weeks told her that she could not meet his source and that, in any case, the source was always close by when Weeks sold cocaine and Weeks would give the purchase money to the source immediately after a cocaine sale. On the same date, the DEA began to monitor McNeil's telephone with a pen register. From January 8 to January 10, the pen register recorded that McNeil placed approximately fifty telephone calls to suspected drug dealers, including: Weeks, Klauder, and Harty.

On January 10, 1986, Weeks called Agent McElderry in Seattle and quoted her a price for six ounces of cocaine. Weeks also told McElderry that his source of cocaine did not want to meet anyone new and that he (Weeks) had paid $5000 to meet the source.

On January 21, 1986, the government, using an affidavit executed by Agent Sanchez, applied for permission to wiretap McNeil's telephone. The government had not previously applied for a wiretap in any case in the Eastern District of Washington. 7 On January 21, 1986, the district court authorized a wiretap of McNeil's telephone. McNeil's telephone lines were tapped from January 21 until February 5, 1986.

On February 10, 1986, the government applied for permission to wiretap Ray Harty's telephone. The application was granted. Harty's telephone lines were tapped from February 11, 1986 to March 6, 1986. During this wiretap, the DEA determined that Thomas Boyd was Harty's supplier.

On March 27, 1986, the government applied for permission to wiretap Thomas Boyd's telephone. The district court authorized a wiretap. Boyd's telephone lines were tapped from March 27 until April 24, 1986. A pen register was then installed on Boyd's telephone line and operated from April 26 to April 29, 1986. On April 29, 1986, the government applied for an extension of the Boyd wiretap. The extension was granted. Boyd's telephone lines were tapped from April 29, 1986 to May 7, 1986.

II PROCEDURAL HISTORY

Relying on evidence obtained from the wiretaps, a federal grand jury returned a superseding indictment against 29 persons, including six of the seven appellants in this appeal. 8 A separate 13 count superseding indictment was filed against Thomas Begley, the seventh appellant in this appeal, and five other persons. The indictments charged each defendant with conspiracy, possession, and distribution of a controlled substance. The indictments also charged some of the defendants with unlawfully using a telephone to facilitate a drug conspiracy and with being felons in possession of firearms. The defendants pleaded not guilty to the charges against them.

On November 6, 1986, the defendants filed motions to suppress all evidence obtained as a result of the four wiretaps. 9 From January 26 to January 29, 1987, the district court held a hearing on the motions to suppress. On January 29, 1987, the district court denied the motions. 10 On March 18, 1987, the defendants jointly filed motions for reconsideration. On September 17, 1987, the district court denied the motions for reconsideration.

Beginning on March 3, 1987, the appellants entered conditional guilty pleas to the various counts against them, while reserving the right to appeal from the district court's ruling on their motions to suppress. The appellants timely appealed. We consolidated their appeals.

III ISSUES ON APPEAL

The appellants argue...

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