U.S. v. Apple

• Citation: 915 F.2d 899
• Decision Date: 06 November 1990
• Docket Number: 89-5423,Nos. 89-5066,s. 89-5066
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sherrie Tuggle APPLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Stacy Nevin APPLE, a/k/a Dr. Stachel Pomme, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 899

915 F.2d 899

UNITED STATES of America, Plaintiff-Appellee, v. Sherrie Tuggle APPLE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Stacy Nevin APPLE, a/k/a Dr. Stachel Pomme, Defendant-Appellant.

Nos. 89-5066, 89-5423.

United States Court of Appeals, Fourth Circuit.

Argued May 11, 1990.

Decided Oct. 2, 1990.

As Amended Nov. 6, 1990.

John Kenneth Zwerling, argued, Zwerling, Mark & Sutherlund, P.C., Alexandria, Va., for defendants-appellants.

Miriam Aroni Krinsky, Asst. U.S. Atty., argued, Baltimore, Md. (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee.

Before WIDENER and PHILLIPS, Circuit Judges, and SMITH, Senior Judge, United States Court of Appeals for the Federal Circuit, sitting by designation.

PHILLIPS, Circuit Judge:

Stacy and Sherrie Apple were each convicted on multiple felony narcotics counts, Sherrie after a jury trial and Stacy upon his guilty plea. ¹ Both appellants had filed various pre-trial motions relating to allegedly illegal electronic surveillance; the district court denied all the motions. On appeal, the Apples challenge the district court's rulings on their pre-trial motions and adverse rulings made by the court at their respective sentencing hearings. We find no error in the district court's disposition of Stacy's pre-trial motions. The court, however, erred in rejecting Sherrie's motions, and we must remand her case for further proceedings. The district court also failed to make factual findings that would support enhancement of the Apples' sentences for possession of a firearm during the commission of a drug offense; we therefore remand that issue to the district court.

I

In late 1986, Montgomery County, Maryland, police obtained information from anonymous sources that Stacy was involved in narcotics trafficking. A letter from another anonymous source implicating Stacy in narcotics trafficking was circulated among several FBI offices in early 1987. Stacy's name had also surfaced during a joint federal-state investigation in the Charlottesville, Virginia, area. The phone of Trevis Poole was tapped by Virginia State Police, and on information obtained through the wiretap Poole and others were indicted and eventually convicted. Stacy was identified during the grand jury inquiry as one of Poole's narcotics suppliers. FBI agents involved in the Virginia investigation passed along to FBI agents in Maryland the information implicating the Apples; that information was also passed along to the Montgomery County Police.

Local and federal authorities intensified their investigation of the Apples, contacting informants and securing a pen register tap on the Apples' home phone. The Montgomery County Police eventually obtained sufficient information to seek a search warrant for the Apples' home. The police obtained the warrant and executed it on August 14, 1987, seizing, inter alia, four handguns, ² a small quantity of marijuana, drug paraphernalia, and assorted records. Stacy was then arrested for conspiracy to distribute cocaine. ³

The federal investigation of the Apples continued. An informant introduced an undercover FBI agent to the Apples. The agent purchased and arranged for the distribution of narcotics, often in meetings held at the Apples' New York City apartment. Based on the activities of the undercover agent and information attributed to confidential informants unrelated to the Virginia investigation, the FBI sought and obtained a warrant to search the Apples' apartment on May 20, 1988. Upon execution of this warrant, federal officials seized assorted documents and records, and one handgun. Stacy was arrested by federal authorities the next day on the street in front of the New York apartment. Sherrie, who had apparently separated from her husband several weeks earlier, voluntarily surrendered to authorities approximately two weeks after Stacy had been arrested.

A grand jury in the district of Maryland indicted the Apples and two others on multiple felony counts. The Apples were charged in two separate conspiracy counts--count one charged conspiracy to distribute and possess with intent to distribute cocaine during the period from January 1986 until May 20, 1988; count two charged conspiracy to distribute and possess with intent to distribute marijuana from January 1988 until May 20, 1988. ⁴ Both were also charged in counts three through five with distribution of cocaine on certain dates in 1988, ⁵ in count six with attempt to possess cocaine with intent to distribute, ⁶ in count seven with possession of cocaine with intent to distribute, ⁷ and in count nine with use of a telephone in facilitating the commission of a felony. ⁸

Sherrie filed related pre-trial motions (for disclosure of electronic surveillance, expanded discovery, extension of time to complete discovery, suppression of evidence seized in the Maryland search, and to quash the indictment) seeking information about the electronic surveillance in Virginia. She specifically identified the Poole phone tap, but did not identify any phone calls with the suspect phone during the period of the surveillance. She did aver that she heard unusual noises on her phone and noticed unexplained interruptions of service. The government argued that Sherrie had failed to make the necessary prima facie showing to trigger the government's obligation to affirm or deny the occurrence of the alleged unlawful surveillance under 18 U.S.C. Sec. 3504(a)(1), but the government also submitted a letter from the Department of Justice indicating that a check by the FBI and other federal agencies revealed no surveillance of the Apples.

The district court did not rule on the question of the legality of the Virginia phone tap. ⁹ Rather, assuming arguendo that the wiretap was illegal, the court ruled that Sherrie lacked standing to raise the electronic surveillance issue because she had failed to show that she was an "aggrieved person" under 18 U.S.C. Sec. 2510(11) by failing to show that she was a party to any of the intercepted Virginia phone conversations. The court also ruled, alternatively, that there was sufficient evidence developed independently of the Virginia investigation to support probable cause for the Maryland search warrant; other evidence to be presented at trial was also unrelated to the Virginia investigation.

On the eve of her trial, ¹⁰ Sherrie moved the court to reconsider its rulings. She presented her own affidavit and the affidavit of Patty Poole, Trevis Poole's sister-in-law, which indicated that Sherrie had made a call to the tapped number during the period of the surveillance and that both she and Stacy had left messages on other occasions. A hearing was held on the motion to reconsider. Though it noted that the new affidavits did not identify the specific dates of the calls or their content, the court indicated that it "appear[ed]" that Sherrie had made a prima facie showing of illegal surveillance. Citing the Department of Justice letter, the court ruled that the government had denied that the Apples were surveilled and that there was no reason to order additional disclosure. FBI case agent Patrick Patterson and Officer Scott Hammond, the principal Montgomery County Police officer involved in the investigation, each testified at the hearing that he had received information from the Virginia investigation, but each was personally unaware of any intercepted conversations involving the Apples. The court also credited the testimony of Agent Patterson to the effect that the Assistant United States Attorney (AUSA) involved in the Virginia investigation had told him (Patterson) that to his (the AUSA) knowledge, none of the wiretapped phone conversations involved the Apples.

After a jury trial, Sherrie was convicted on all five felony counts presented to the jury. ¹¹ At her sentencing, the court enhanced Sherrie's Guidelines base offense level by two levels under United States Sentencing Guidelines (U.S.S.G.) Sec. 2D1.1(b)(1) for possession of a firearm during the commission of a drug offense, finding that Sherrie "was well-aware of the existence of firearms in her home." The court then found that a downward departure under id. Sec. 5K2.13, p.s. was appropriate to reflect Sherrie's diminished capacity. ¹² The court departed downward from the applicable Guidelines range of 151 to 188 months and imposed a sentence of 84 months.

After Sherrie was convicted and shortly before he was to be tried, Stacy entered into a plea agreement with the government. Earlier, he too had claimed that he was the victim of illegal electronic surveillance ¹³ pointing to grand jury testimony, which indicated that Stacy spoke regularly with Trevis Poole, and the affidavit of his counsel, in which counsel averred that Stacy had indicated that he had telephoned the Pooles during the period that Trevis Poole's phone was tapped. The district court, relying on its earlier rulings, held that Stacy lacked standing to raise the issue and alternatively that there was sufficient evidence developed independently from the Virginia investigation.

Stacy then entered a Fed.R.Crim.P. 11(a)(2) conditional plea of guilty to counts one, two, four, and six of the indictment. Because Stacy objected to certain specific statements in the government's proposed statement of facts, which was incorporated into the plea agreement, he changed four statements of "fact" to indicate rather that a given witness would testify to those facts. He also struck the reference in the plea agreement itself that he agreed with the statement of facts. ¹⁴

While Stacy was incarcerated awaiting sentencing, he was diagnosed as suffering from large cell lymphoma. The cancer was successfully treated with radiation and chemotherapy, and it was in remission at the time Stacy was sentenced. Two physicians testified at Stacy's sentencing hearing that he had approximately a 70% chance of long-term survival without recurrence...