918 F.2d 895 (11th Cir. 1990), 88-4001, United States v. Nixon

Docket Nº:88-4001.
Citation:918 F.2d 895
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee NIXON, Richard Nixon, Michael Parks, Emmitt Lamar Manns, Henry L. Manns, Michael Keeley, Gerald Wells, Defendants-Appellants.
Case Date:December 07, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 895

918 F.2d 895 (11th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jimmy Lee NIXON, Richard Nixon, Michael Parks, Emmitt Lamar

Manns, Henry L. Manns, Michael Keeley, Gerald

Wells, Defendants-Appellants.

No. 88-4001.

United States Court of Appeals, Eleventh Circuit

December 7, 1990

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Linsey Moore, Jacksonville, Fla., for J.L. Nixon.

J. James Allen, Jacksonville, Fla., for R. Nixon.

Gerald S. Bettman, Jacksonville, Fla., for M. Parks.

Raymond E. Makowski, Jacksonville, Fla., for E.L. Manns.

David J. Kiyonaga, Kiyonaga & Kiyonaga, Alexandria, Va., for H.L. Manns.

Charlie L. Adams, Jacksonville, Fla., for M. Keeley.

Robert Stone, Hollywood, Fla., for G. Wells.

Ronald T. Henry, Asst. U.S. Atty., Jacksonville, Fla., for U.S.

Appeals from the United States District Court for the Middle District of Florida.

Before EDMONDSON and COX, Circuit Judges, and WISDOM [*], Senior Circuit Judge.

EDMONDSON, Circuit Judge:

This case involves appeals by seven defendants from their convictions and sentences on charges stemming from a drug trafficking conspiracy operating in Jacksonville, Florida, from December 1986 to March 1988. The seven defendants, among twenty people originally charged in a 95-count indictment, were tried jointly and convicted for their various roles in the supply and distribution of crack cocaine. 1 Defendants jointly challenge their convictions on several grounds, claiming that the trial judge erred by not suppressing evidence obtained through government wiretaps and by allowing the jury to review transcripts of the wiretap evidence during deliberation. In addition, defendants raise a number of evidentiary and fair trial claims, as well as attack their individual convictions as unsupported

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by the evidence. Furthermore, several defendants challenge the sentences imposed by the district court under the federal guidelines. After careful consideration of defendants' claims, we AFFIRM in part, VACATE in part, and REMAND for resentencing consistent with part II G of this opinion.

I.

From December 1986 to March 1988, federal and local authorities conducted a major investigation of a crack cocaine distribution ring operating in Jacksonville, Florida, and in nearby Orange Park, Florida. The investigation culminated in the indictment of twenty people, including these seven defendants.

The indictment alleged that the two principals in the drug trafficking conspiracy were defendants Henry L. Manns and his brother, Emmitt Lamar Manns. Defendant Michael L. Keeley served as the "right hand man" in the general operation of the organization, and defendant Richard Nixon operated Manns' Confectionery, where the majority of the crack cocaine was distributed to street dealers. All four of these defendants were charged and convicted of, among other counts, conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. Sec. 846, and the more serious charge of engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. Sec. 848. 2

The grand jury further alleged that the Manns brothers' operation obtained some of its cocaine from defendant Gerald Wells. Defendant Michael Parks was hired to transport the cocaine powder to Jacksonville, where it was ultimately processed into cocaine base, or "crack." Defendant Jimmy Lee Nixon, father of defendant Richard Nixon, lived in Effingham County, Georgia, and was one of a number of "contractors" who purchased for resale various amounts of cocaine from the Manns brothers' organization. All three of these defendants were charged and convicted of participating in the drug trafficking conspiracy, in violation of 21 U.S.C. Sec. 846, along with a number of other offenses.

II.

  1. The Government Wiretap

    Almost ten months after the government initiated its investigation of the alleged conspiracy--and three months after the creation of a task force to coordinate the investigation--law enforcement officials applied for an order authorizing a wiretap of the telephone located at the Orange Park residence of Michael Keeley and Richard

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    Nixon. The application was supported by the 108-page affidavit of police detective Charles L. Porter. The application for a wiretap was granted and then extended for another 30 days. A wiretap also was approved for the telephone located at Manns' Confectionery.

    The wiretap and extension authorizations were challenged by defendants before trial in motions to suppress. Defendants alleged that the wiretaps were unsupported by probable cause, arguing that the warrant depended upon unsubstantiated factual claims and informants of questionable reliability and that insufficient evidence pointed to the particular phone line to be tapped. The wiretaps and extension were challenged further as unnecessary to the government's investigation and prosecution of the alleged drug conspiracy. The magistrate held several hearings on the sufficiency of the warrants and recommended that the motions to suppress be denied. The district court, after de novo review, adopted the report and recommendations of the magistrate.

    An application for a wiretap authorization must be supported by the same probable cause necessary for a search warrant. See United States v. Hyde, 574 F.2d 856, 862 (5th Cir.1978). 3 The issuing magistrate is to make a "practical, common-sense decision" about whether the "totality of the circumstances" indicate that there is probable cause that the sought-for evidence will be obtained. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The standard for our review of the magistrate's determination is "simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. at 238-39, 103 S.Ct. at 2332 (citation omitted). We have also said that the practical nature of the magistrate's decision justifies "great deference" upon review and calls for upholding the magistrate's findings even in marginal or doubtful cases. See United States v. Lockett, 674 F.2d 843, 845 (11th Cir.1982).

    After review of the record, we cannot conclude that the magistrate lacked a substantial basis for finding probable cause. When the magistrate made the probable cause judgment, he had been told a lot: Keeley and Henry Manns had agreed to sell narcotics to undercover agents, though the transaction never took place; Keeley and Henry Manns were stopped at the Jacksonville airport carrying $73,600 in cash and using airline tickets to Ft. Lauderdale bought under fictitious names; Keeley and Henry Manns were stopped for reckless driving, and officers found $6,000 in cash and a large amount of gold jewelry in the rented car; a search warrant executed on Manns' Confectionery uncovered 34 grams of crack cocaine, semi-automatic weapons, and ammunition; a confidential informant purchased cocaine from Jimmy Lee Nixon at Nixon's mobile home, and a search of the mobile home yielded 41 grams of crack cocaine; responding to reports of gunshots, police found Henry Manns, Emmitt Manns, and Richard Nixon at the home of Manns' parents, with Henry Manns wearing a flack jacket containing 50 rounds of live ammunition, surrounded by numerous firearms, ammunition, and a live pipebomb; on two separate occasions, a confidential informant called Keeley and Richard Nixon at their home, arranging to purchase crack cocaine, and then met defendants at Manns' Confectionery and made the purchases; pen register activity indicated phone calls to and from the house with known drug dealers and to cellular phones, a known tool of the drug trade; surveillance and investigative reports from those watching the home suggested substantial narcotics-related activity; and there was a highly suspicious quantity and quality of known real and personal property controlled by members of the organization.

    Furthermore, evidence from the initial month of the wiretap on the Orange

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    Park phone line generated more than sufficient evidence to justify both the extension and the second wiretap of the Confectionery. Defendants conceded in oral argument that at the time of the first wiretap authorization there was probable cause as to the existence of a drug operation at the Confectionery. They relied instead on a claim that there was insufficient evidence for probable cause that the phone at the Orange Park home belonging to Keeley and Richard Nixon was being used in the conspiracy. The evidence in the affidavit clearly indicated, however, that the phone at the residence of Keeley and Richard Nixon was used to direct customers to the Confectionery for drug sales.

    Defendants additionally challenge the wiretaps as unnecessary to the government's investigation and prosecution of the conspiracy. The statute authorizing government wiretaps requires that an application for electronic interception must contain "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. Sec. 2518(1)(c). This provision does not require, however, that the application provide a "comprehensive exhaustion of all possible techniques, but must simply explain the retroactive or prospective failure of several investigative techniques that reasonably suggest themselves." United States v. Van Horn, 789 F.2d 1492, 1496 (11th Cir.1986).

    Defendants assert that the government had already obtained through less intrusive investigative techniques sufficient evidence to prosecute and convict those involved in the drug conspiracy. What amount of evidence will be sufficient...

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