United States v. Glover

• Decision Date: 10 October 2017
• Docket Number: No. 16-3011 Consolidated with 16-3019.,16-3011 Consolidated with 16-3019.
• Citation: 872 F.3d 625
• Parties: UNITED STATES of America, Appellee v. Ernest Milton GLOVER, also known as Fish, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

872 F.3d 625

UNITED STATES of America, Appellee

v.Ernest Milton GLOVER, also known as Fish, Appellant

No. 16-3011 Consolidated with 16-3019.

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 2017

Decided October 10, 2017

Rehearing En Banc Denied December 15, 2017^*

Booth Marcus Ripke argued the cause for appellant Helery Price. Nicholas G. Madiou, appointed by the court, argued the cause for appellant Ernest M. Glover. On the joint briefs were Larry Allen Nathans, appointed by the court, and Michael Edward Lawlor.

Patricia A. Heffernan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Elizabeth Trosman, Elizabeth H. Danello, Anthony Scarpelli, and Bernard J. Delia, Assistant U.S. Attorneys.

Before: Garland, Chief Judge, Wilkins, Circuit Judge, and Edwards, Senior Circuit Judge.

Wilkins, Circuit Judge:

Ernest Milton Glover and Helery Price here appeal the denial of their petitions to vacate their convictions under 28 U.S.C. § 2255. Appellants were convicted of conspiracy to possess with intent to distribute and to distribute one kilogram or more of phencyclidine, commonly known as "PCP," 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), & 846, and were sentenced to the applicable statutory mandatory minimum of life imprisonment.

This Court has reviewed the underlying criminal prosecution on a few occasions, including Glover's and Price's direct appeal, see United States v. Glover ("Direct Appeal "), 681 F.3d 411 (D.C. Cir. 2012), and, most recently, an appeal from the denial of co-defendant Anthony Maurice Suggs's § 2255 habeas petition, United States v. Suggs , 688 Fed.Appx. 17 (D.C. Cir. 2017). The habeas petitions here present two issues upon which the District Court issued a Certificate of Appealability: (1) whether counsel was ineffective for failing to challenge evidence obtained from an electronic surveillance device unlawfully installed in a vehicle outside of the authorizing court's geographic jurisdiction (the "Truck Bug"), and (2) whether counsel was ineffective for failing to object to specific instances of case agent John Bevington's testimony in which Bevington offered interpretations of evidence reflecting his knowledge of the investigation as a whole, which this Court rejected as contrary to Federal Rule of Evidence 701 in the appeal of a separate conviction arising out of the same conspiracy, see United States v. Hampton , 718 F.3d 978 (D.C. Cir. 2013).

We conclude that counsel did not perform deficiently in failing to challenge the Truck Bug. In light of that, the evidence against Appellants was sufficiently strong that counsel's failure to object to specific instances of testimony by Bevington did not prejudice the defense, and we therefore affirm.

BACKGROUND

Appellants were convicted in a jury trial that took place between February 11, 2008, and March 13, 2008. In addition to Price, also known as "Brother," and Glover, also known as "Fish" or "Ernie," targets of the investigation leading to this prosecution included Anthony "Applejack" or "Ap" Suggs, James Parker, Glendale Lee, Ernest Glover's brother Lonnell Glover, and Ernest Glover's relative Cornell "Tony" Glover,¹ among others. During the trial, FBI case agent John Bevington testified multiple times, describing the investigation and providing the foundation for the introduction of surveillance recordings from two authorizations: a bug installed in co-conspirator Lonnell Glover's truck and a wiretap of Suggs's cell phone.

The surveillance evidence from the Truck Bug made up a small, but important, part of the evidence against Glover and Price. The bug was authorized by Judge Collyer of the District Court for the District of Columbia. United States v. Lonnell Glover , 736 F.3d 509, 510 (D.C. Cir. 2013). The FBI affidavit in support of the warrant for the Truck Bug identified both Appellants by name as targets of the investigation. The affidavit stated that the truck was parked at BWI Airport, and that is where the agents installed the bug.

The prosecution introduced five recordings from the Truck Bug at Appellants' trial—three conversations between Lonnell Glover and Suggs and one conversation apiece between Lonnell Glover and two other associates. None of the Truck Bug recordings captured conversations with Appellants, but the interlocutors recorded by the Truck Bug discussed them. In Truck Activation 186, Suggs described to Lonnell Glover that "Ernie ... had owed me, you know I was gonna get my paper from him" and had told Suggs "I might got half and owe you half." In Truck Activation 706, Lonnell Glover told Cornell "Tony" Glover that "Ap just got a 16 for Fish, that there is moving already," referring in slang to a quantity of PCP and to Ernest Glover by his nickname, "Fish." As to Price, Truck Activation 91 included a discussion in which Suggs told Lonnell Glover that he would put "[B]rother" "on hold till you get back," despite requests for "halves." Truck Activation 604 recorded Lonnell Glover and Suggs discussing whether to "give Brother the old water or the new water," to make sure that Brother's "regular people" were "satisfied happy." Suggs told Lonnell Glover that "Brother needs a gallon," repeating "Brother, I know what he want a gallon." This recording from the Truck Bug was a critical piece of evidence against Price, since his nickname is "Brother" and "water" is a slang term for PCP, and the prosecution used the phrase "Brother wants a gallon" in both the opening and closing arguments. Lonnell Glover and Suggs also discussed Ernest Glover in their conversation in Activation 604, with Lonnell saying that "Fish ... got to get clean" and Suggs commenting on whether Ernest Glover was "owing somebody."

The prosecution also introduced approximately 80 calls from the Suggs cell phone wiretap, and the testimony about these recordings occupied a substantial part of the trial. In many of the calls, Appellants and their associates discussed getting together in the future or coordinating a contemporaneous rendezvous. For example, in Activation 384, Price told Suggs "come and see me tomorrow. That be good.... I'll hit you tomorrow. Hit me tomorrow cause them peoples been pressing me for real. I just ain't get on top of it." In Activation 628, Price and Suggs reacted to viewing FBI surveillance vehicles when they were on their way to meet one another. They called off their meeting in apparent suspicion that they were being surveilled. See Trial Tr. 7:10–9:13 (Feb. 27, 2008, Afternoon Sess.). In other calls recorded by the Suggs wiretap, Appellants and their confederates discussed money. For instance, in Activation 2227, Suggs and Glover discussed money in terms like "tray," "deuce," and "piano." In Activation 5443, Price left a voicemail for Suggs, requesting that Suggs answer his phone and adding: "you don't like a moola or what?"

The prosecution utilized FBI case agent Bevington to introduce the recordings from the phone wiretap and the Truck Bug. Some of the recordings were introduced with minimal commentary, with Bevington simply providing the time and date information as foundation. See, e.g. , Trial Tr. 73:2–20 (Feb. 21, 2008, Morning Sess.). However, on other occasions, Bevington testified about the significance of the recorded communications. For example, after a line of recordings in which Price and Suggs discussed seemingly random items, Bevington testified that "book," "Sister Sister magazine," and "information" meant PCP, explaining that "[t]hey've changed the code multiple times. But they're clearly not talking about or using the same words to talk about what they're talking about." Trial Tr. 99:3–9 (Feb. 27, 2008, Morning Sess.). Interpreting a conversation in which Suggs informed Price that "we should have that apartment cleaned out one day this week then you can move in there," Bevington explained his view that the exchange was "Mr. Suggs letting Mr. Price know that he should have PCP for sale the following week" based on Bevington's observation "during the course of the investigation [that] there was never any indication that Mr. Suggs was renting apartments or owned property." Trial Tr. 12:16–23 (Feb. 27, 2008, Morning Sess.).

Other evidence against Appellants included significant physical evidence recovered when police searched Glover's residence, including $985 in cash, a dollar bill with a substance suspected to be heroin, and a digital scale from a bedroom where Glover's wallet was found. In the kitchen, police found baggies, including one baggie containing heroin. In a basement closet, police found shoeboxes full of small glass bottles, a turkey baster, objects similar to eyedroppers, funnels, a juice bottle with the odor of PCP, vanilla extract bottles with the odor of PCP, a rifle, a shotgun, and ammunition. The District Court found that the juice bottle contained 178.1 grams of PCP and the vanilla extract bottles contained 6.2 grams of PCP. The recovered items were compelling evidence against Glover in particular, as they connected Glover to the drugs and contextualized his conversations with Suggs and other co-conspirators. Except for the heroin and weapons, which were admitted only against Glover, this evidence also contributed to the case against Price.

In addition, by stipulation, the jury was told that Glover was previously convicted of unlawful distribution of PCP, based on six controlled purchases between April 25, 1994 and February 13, 1996. Trial Tr. 42:21–43:16 (Feb. 25, 2008, Morning Sess.). A search executed at Glover's residence pursuant to the investigation in Glover's previous case revealed seven bottles with trace amounts of PCP. Id. at 43:5–11. This stipulation, too, was admissible against Glover alone.

Further direct evidence relating more closely to other co-conspirators added to the case against Glover and Price. The FBI investigation conducted two controlled buys of PCP—one from co-defendant James Parker on January 4, 2007, and one from Suggs on ...