U.S. v. Smith

• Decision Date: 27 July 1990
• Docket Number: 89-1701SI,Nos. 89-1512S,s. 89-1512S
• Citation: 909 F.2d 1164
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Bobby Dale SMITH, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1164

909 F.2d 1164

UNITED STATES of America, Appellee/Cross-Appellant, v. Bobby Dale SMITH, Appellant/Cross-Appellee.

Nos. 89-1512SI, 89-1701SI.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 16, 1989.

Decided July 27, 1990.

Joseph J. Hrvol, Council Bluffs, Iowa, for appellant/cross-appellee.

Ronald M. Keyser, Des Moines, Iowa, for appellee/cross-appellant.

Before LAY, Chief Judge, ARNOLD, Circuit Judge, and McMILLAN, ^* Senior District Judge.

ARNOLD, Circuit Judge.

Bobby Dale Smith appeals his conviction for several offenses growing out of a conspiracy to distribute cocaine. Smith was a middle-level distributor of cocaine and marijuana in Council Bluffs, Iowa and Omaha, Nebraska. He claims the District Court ¹ erred in admitting evidence of his crime secured through a wiretap and in admitting statements of his (alleged) co-conspirators. Further, he claims the District Court mistakenly found him to be a career offender when computing his sentence. The government cross-appeals Smith's sentence, arguing that the District Court's downward departure was unjustified. We affirm Smith's conviction and sentence. ²

I.

Smith alleges two errors involving the wiretap used to gather evidence in this case. Members of the Omaha Police Department suspected that Smith was involved in a drug ring. After other investigative tactics failed, they obtained a state-court order and tapped his phone. The appellant first argues that the wiretap should not have been authorized. Moreover, he contends that even if the authorization was proper, the officers' failure to minimize their intrusion on his phone conversations taints the evidence gathered from those conversations. The District Court was not persuaded by Smith's arguments, and neither are we.

The relevant statute requires a showing of necessity before a wiretap will be authorized by a court of competent jurisdiction. Neb.Rev.Stat. Secs. 86-701--86-712 (reissue 1987). (This Nebraska statute tracks the standards and requirements in 18 U.S.C. Sec. 2518 et seq., the federal wiretap statute.) It is the government's burden to demonstrate the failure of previous investigative efforts and the need for a wiretap. Here the officers' affidavit did precisely that. Rather than being (as the appellant contends) the beginning of an investigation, the wiretap application came in the middle of a stalled investigation. Anonymous callers and confidential informants had alerted the police to Smith's activities. Surveillance of his house and his girlfriend's house had been unavailing. Pen registers were secured, but this review of phone records also led nowhere. Officers attempted to search Smith's garbage, but he never placed it on the curb. On two occasions, officers posing as yard men approached Smith seeking work (and the opportunity to watch him closely), but again without success. Smith's use of an alias and his change of address further hindered the investigation.

After all these efforts, the police still did not know who was part of Smith's operation: who supplied Smith with drugs and who purchased them for resale. On the basis of these past efforts and the information sought, the Nebraska court properly authorized the wiretap. United States v. O'Connell, 841 F.2d 1408 (8th Cir.1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989). As the District Court correctly held, the appellant's arguments against authorization supply no good reason to suppress any of the challenged evidence. The wiretap was necessary within the statute's meaning.

The same statute that requires a showing of necessity to authorize a wiretap requires more: once the tap is in place, the intrusion into privileged and innocent conversations must be minimized. Neb.Rev.Stat. Sec. 86-705(6). The court order authorizing this wiretap echoed the need for selective monitoring of conversations. This record reflects a good deal of police effort to that end. A minimization conference was held prior to beginning the surveillance. The department's seven-page minimization guidelines were distributed and discussed at that meeting. Those guidelines specifically instructed officers to listen only for a minute or two to determine if the call was crime-related or innocent. If the officers reasonably believed the call was crime-related, continued surveillance was required. If the call seemed innocent, ongoing surveillance ceased. Thereafter, every thirty to sixty seconds, surveillance could briefly resume to insure that the call remained innocent. Using these guidelines, almost thirty percent of all the calls made or received during the wiretap were minimized.

Smith's claim here involves a call that was not minimized, but which he argues should have been. Smith and his girlfriend, Patricia Mehl, went to Texas. The investigators weren't sure, but they (correctly) thought the trip might be drug-related. Smith's younger sister Robin agreed to house-sit at Smith's residence. The officers continued to monitor calls, suspecting messages to and from Smith about his drug business would be relayed through the house-sitter. When Smith's former girlfriend--Lisa Shrader--called, and the house-sitter told her that Smith was out of town, the officers suspected a crime-related call. They did not minimize. Approximately two minutes and twenty-five seconds into the conversation, Smith's little sister told Shrader that the appellant had stashed most of his drugs and money at their parents' house prior to the trip. That information made the case against Smith by exposing his drug cache; it helped secure the warrants for his arrest, and for the search of his (and his parents') house.

Smith's assertions that this call should have been minimized are misplaced. The many-factored analysis we use for these kinds of claims ultimately resolves itself into the reasonableness of the officers' actions. United States v. Garcia, 785 F.2d 214 (8th Cir.), cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986). Their generalized suspicion of the residence as a conduit for information during the trip was reasonable. Their particularized suspicion of this call was also reasonable. Though neither Robin Smith nor Lisa Shrader were ultimately charged as co-conspirators, they were suspected as such at the time of this call. The officers believed that members of Smith's family were aiding him, though they were uncertain which ones. They also believed that Lisa Shrader had helped Smith obtain identification establishing his alias--Charles Shrader--using her brother's birth certificate. The appellant places much weight on Robin Smith's age (thirteen years) at the time of the call. Since the officers did not know her age, this is irrelevant to our evaluation of their decision. There is no error in the District Court's refusal to suppress the evidence eventually secured based on this call. Garcia, 785 F.2d at 224.

Smith next argues that the trial court erred in admitting statements of his co-conspirators over his hearsay objections. Robin Smith's statements that her brother's drugs were at their parents' house, and Betty and Bud Sarten's statements that the appellant was their supplier, came in at trial under Federal Rule of Evidence 801(d)(2)(E). That rule provides that co-conspirators' statements in furtherance of the conspiracy are not hearsay. The declarant's part in the conspiracy must be demonstrated by a preponderance of the evidence, including the statements in issue. Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987).

The appellant's claim that no evidence (apart from the challenged statements) exists of Robin Smith's and the Sartens' participation in the conspiracy is betrayed by the record. Robin Smith knew about her brother's drug activities. The District Court found that her house-sitting facilitated those activities. T. 528. The Court also noted the drug money--over $6000 of proceeds from Bobby Dale Smith's drug sales--found in her purse when the warrant was executed at Smith's house. Id. The Sartens' statements were testified to by Patrick Clark. Clark bought drugs from the Sartens for resale. Clark not only heard the Sartens name Smith as their source on several occasions, he saw Smith in their home with a suitcase full of white powder. Given these facts, and the statements themselves, which the District Court credited, we cannot say that the Court erred in admitting the challenged statements. United States v. Valverde, 846 F.2d 513, 516 (8th Cir.1988). ³ Even assuming error, the mistake was harmless. After he was arrested, Smith admitted that the drugs seized at his parents' house were his, and that he sold the Sartens cocaine on many occasions.

Smith's final cluster of challenges concerns his sentence. He first contends that the District Court erroneously applied the Sentencing Guidelines to three of his crimes. The Court erred, his argument runs, because the heart of the conspiracy occurred prior to the effective date of those guidelines. This contention is factually and legally incorrect. Smith's attempt to secrete his drugs and drug money, as well as his trip to visit his supplier in Texas, occurred after the Sentencing Guidelines became effective. Those facts establish his possession of the contraband, and travel to ensure continued possession. Further, the law in our circuit is that if the conspiracy straddles the effective date of the guidelines, then the guidelines apply. United States v. Stewart, 878 F.2d 256, 259 (8th Cir.1989). Sentencing the appellant under the guidelines was correct. ⁴

Smith next contends that he was improperly classed as a career offender during sentencing. The District Court looked to his two prior convictions--one for burglary and another for conspiracy--in making this determination. U.S.S.G. Sec. 4B1.1. Smith would have us remove him from the reach of this provision by holding that his second-degree burglary was not a...