United States v. Banks, 16-6322

• Decision Date: 06 March 2018
• Docket Number: No. 16-6322,16-6322
• Citation: 884 F.3d 998
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael Eugene BANKS, a/k/a Bird, a/k/a Birdie, a/k/a Tiny Bird, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

884 F.3d 998

UNITED STATES of America, Plaintiff–Appellee,

v.Michael Eugene BANKS, a/k/a Bird, a/k/a Birdie, a/k/a Tiny Bird, Defendant–Appellant.

No. 16-6322

United States Court of Appeals, Tenth Circuit.

FILED March 6, 2018

William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant.

David McCrary, Assistant United States Attorney (Mark A. Yancey, United States Attorney, with him on the briefs), Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.

MORITZ, Circuit Judge.

A jury convicted Michael Banks of sixteen drug-related crimes, and the district court sentenced him to life in prison plus 60 months. This is Banks' direct appeal. For the reasons explained below, we affirm his convictions and sentence.

BACKGROUND

In the fall of 2014, law enforcement obtained information suggesting that members of the Rollin 90s Crips, led by Daryl Ingram, were manufacturing and distributing cocaine base in Oklahoma City. As a result, the Oklahoma City Police Department, the FBI, the United States Postal Service, and the IRS launched a joint investigation into the gang’s activities. That investigation resulted in a 24-count indictment against Banks, Ingram, Anthony Anderson, Michael Brown, and Xavier Guerrero. In part, the indictment alleged two related conspiracies: (1) conspiracy to possess with intent to distribute cocaine base and (2) conspiracy to launder the drug-trafficking proceeds. The remaining counts alleged that Banks, Ingram, and Anderson individually committed various gun, drug, money-laundering, and witness-tampering offenses.

The evidence at trial was compelling. Three former gang members testified that Banks and Ingram were members of the Rollin 90s. Travel records and photographs showed that these men were connected to one another. Banks' mother testified that she assumed Banks sold drugs for a living. Two witnesses reported seeing Banks with cocaine base in a hotel room near Penn Square Mall. And Banks was arrested twice in 2014 at houses where law enforcement discovered large amounts of cocaine base. Banks' non-conspiracy convictions stemmed from these two arrests.

The first of these two arrests took place in July, during a consensual search of Lillie Nelson’s Oklahoma City home. At the time of the search, Banks was standing just inside the closed door of Nelson’s son’s bedroom, along with Nelson’s son, Willie Evans, and one other man. The officer who searched that bedroom found two guns in a reclining chair and ammunition in a shoebox in the closet. Also in the closet, near the bottom of a nearly full clothes hamper, he found a Crown Royal bag containing $1,500 in cash, three baggies containing a total of 130 grams of cocaine base, and one baggie of cocaine powder weighing approximately five grams. Evans claimed responsibility for the guns and drugs found in his room. But in recorded jail calls, Banks implied that the drugs were his; he told his mother that Evans took responsibility for "all that shit, my shit." R. vol. 3, 570–71. This first arrest led to Banks' conviction for possession of cocaine base with intent to distribute.

The second of Banks' two arrests took place in November 2014, at a house in Spencer, Oklahoma. Officers obtained an arrest warrant for Banks in mid-November and received information on November 28 that Banks had threatened to shoot one of the government’s informants. Based on this threat, law enforcement obtained a state-court order authorizing T-Mobile to gather data from Banks' cell phone and asked T-Mobile to ping¹ Banks' cell phone and determine its location. T-Mobile did so, and that led law enforcement to the Spencer house. When the officers arrived, the individuals in the house initially barricaded themselves inside. After about an hour, Banks came out and surrendered peacefully, along with his two girlfriends, Satin Watley and Gabrielle Stevenson, and his infant child.

The officers then entered the house and conducted a protective sweep, looking for one of Banks' coconspirators. The coconspirator wasn't there. But during the sweep, officers saw a variety of evidence in plain view. These events led to Banks' convictions for possessing cocaine with intent to distribute, manufacturing cocaine base, possessing a gun in furtherance of a drug crime, and being a felon in possession of a gun.

Regarding the money-laundering charges, trial testimony established that Banks often asked his girlfriends and mother to buy money orders or make deposits with cash that he gave them. For instance, Stevenson testified that Banks gave her thousands of dollars in cash and asked her (1) to buy money orders and send them to California and (2) to deposit money into a specific bank account. Watley likewise testified that she made at least four cash deposits into a particular bank account at Banks' direction. And Banks' mother testified that she bought four money orders at Banks' direction to send to California. She said that Watley accompanied her to the post office to buy the money orders, provided the money from Banks, and gave her the California address.

Banks, Ingram, and Brown were tried as codefendants. The government presented testimony from (1) various law-enforcement officers who participated in the investigation, (2) former gang members, (3) Banks' mother, (4) both of Banks' girlfriends, and (5) some of the individuals in California who received the money orders and deposits. The jury convicted Banks of 16 of the 18 charges against him, and the district court sentenced him to life in prison plus 60 months.² Banks now appeals, challenging his convictions and his sentence.

ANALYSIS

Suppression Issues

Banks first argues that the district court should have suppressed the evidence found at the Spencer house after his second arrest because (1) the state court issued his arrest warrant without probable cause, (2) the state court issued the ping order without probable cause, and (3) law enforcement performed an unjustified protective sweep of the Spencer house after arresting him. We review the district court’s factual findings on suppression motions "for clear error, viewing the evidence in the light most favorable to the government," but we review de novo the district court’s ultimate determination of whether probable cause supported a search or seizure. United States v. Hauk , 412 F.3d 1179, 1185 (10th Cir. 2005).

Arrest Warrant

"[A]n arrest warrant must be supported by probable cause to comply with the Fourth Amendment." Taylor v. Meacham , 82 F.3d 1556, 1562 (10th Cir. 1996). When a court determines that probable cause exists, the reviewing court’s task "is merely to ensure the [g]overnment’s affidavit provided a ‘substantial basis’ for reaching that conclusion." United States v. Biglow , 562 F.3d 1272, 1280 (10th Cir. 2009) (quoting Illinois v. Gates , 462 U.S. 213, 238–39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ).

Here, Matthew McRorie, a detective with the Oklahoma City Police, asked the state court to issue an arrest warrant for Banks on charges of conspiring to commit aggravated drug-trafficking, conspiring to commit aggravated manufacturing, and conspiring to traffic cocaine base. McRorie’s affidavit provided an overview of the investigation and identified Ingram as the leader of the Rollin 90s and the gang’s related drug-trafficking organization. Three confidential informants provided consistent reports about the drug-trafficking organization, and two of them identified Banks as a member just underneath Ingram in that organization’s hierarchy.

McRorie’s affidavit also included details about Banks' July 2014 arrest, including that Banks made a call from jail to discuss having Ingram bail him out. Based on McRorie’s affidavit, the state court issued an arrest warrant for Banks. When Banks challenged this arrest warrant before trial, the federal district court found that the state court had a substantial basis for concluding that there was probable cause for the warrant.

Banks argues that the affidavit didn't establish probable cause because (1) it included information from one reliable informant who didn't identify Banks as being involved in the conspiracy, (2) it included information from two other informants who did identify Banks as being involved but who had no "track record" of reliability, Aplt. Br. 20, and (3) law enforcement didn't independently corroborate the informants' information by conducting a controlled drug deal with Banks. As we explain, these arguments fail.

"Probable cause for an arrest warrant is established by demonstrating a substantial probability that a crime has been committed and that a specific individual committed the crime." Wolford v. Lasater , 78 F.3d 484, 489 (10th Cir. 1996). When deciding whether probable cause exists, a court must consider the totality of the circumstances, "including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information." Gates , 462 U.S. at 238, 103 S.Ct. 2317. At the same time, "[w]hen there is sufficient independent corroboration of an informant’s information, there is no need to establish the veracity of the informant." United States v. Danhauer , 229 F.3d 1002, 1006 (10th Cir. 2000). No particular method of corroboration is required "so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge." United States v. Mathis , 357 F.3d 1200, 1204 (10th Cir. 2004) (quoting Jones v. United States , 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ).

Here, the statements from the three informants corroborated each other. See id. at 1206 (discussing sufficiency of statements from three cooperating witnesses and noting, in part, "that the information provided by the informants was internally corroborated in several respects"). All three informants identified Ingram as the leader of the drug-trafficking organization and identified Aundre Cade, Tyree Cade, and...