U.S. v. Adams
| Decision Date | 22 March 2005 |
| Docket Number | No. 03-2137.,No. 03-1305.,03-2137.,03-1305. |
| Citation | 401 F.3d 886 |
| Parties | UNITED STATES of America, Appellee, v. Leo ADAMS, Appellant. United States of America, Appellee, v. Carl Parker, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
JoAnn Trogg (argued), St. Louis, MO, for appellant Parker.
Douglas P. Roller (argued), Clayton, MO, for appellant Adams.
Dean R. Hoag, Asst. U.S. Atty. (argued), St. Louis, MO (MaryJane Lyle and Sam C. Bertolet, Asst. U.S. Attys., St. Louis, MO, on brief), for appellee.
Before MELLOY, McMILLIAN, and BOWMAN, Circuit Judges.
Leo Adams and Carl Parker appeal from judgments entered in the District Court1 for the Eastern District of Missouri after a jury found them guilty of conspiracy to distribute drugs, in violation of 21 U.S.C. §§ 841, 846. They challenge their convictions and sentences. We affirm Parker's conviction and sentence. We affirm Adams's conviction, but vacate his sentence and remand for re-sentencing.
Adams, Parker, and thirteen other individuals, including Charles Rush-Bey, were indicted for their participation in a conspiracy to distribute heroin, cocaine, and cocaine base ("Rush-Bey conspiracy"). The government's case was developed through the use of informants, electronic surveillance, and searches of numerous locations. After the district court denied their pre-trial motions, the co-conspirators, except for Adams and Parker, pled guilty.
At the joint trial of Adams and Parker, the government established the existence of the conspiracy through numerous surveillance audio tape recordings of co-conspirators' telephone conversations, items seized pursuant to search warrants, and the testimony of law enforcement officers and co-conspirators. Robert Pruitt, a co-conspirator, identified speakers on surveillance tape recordings, noted that the speakers spoke in code in order "to elude a third ear on the phone," explained the meaning of certain words and phrases, and testified that the recordings were conversations of drug transactions. A government expert, after listening to a number of the tape recordings, testified that the co-conspirators spoke in code and opined that the conversations indicated narcotics trafficking.
To establish Adams's and Parker's involvement in the conspiracy, among other things, the government introduced surveillance audio tape recordings of telephone conversations. In one of the tape recorded conversations, Rush-Bey told Parker that he had the license plate number of a person who needed to be "located." Parker told Rush-Bey that, because the person had a convertible, the job could be done "[l]ike President Kennedy." Parker noted that he had a "long shot glass" and "microscope."
On June 14, 2001, Parker arranged a three-way telephone conversation with himself, Rush-Bey, and Adams. Parker identified Adams, who had been shot in May 2001, as the individual with ".45s in him." After Parker told Adams that Rush-Bey was on the line, the conversation was as follows:
Adams: Yeah, man, my brother told me ... you might be able to help me out, man.
Rush-Bey: Yeah.
Adams: Yeah, man, I sure appreciate that, man, you come talk to me. I'll tell you what I'm working with, you know what I'm saying?
Rush-Bey: OK, Then, uh.
Adams: It's safe over here, cause ... we can get some type of relationship, you know we know each other, man.
Rush-Bey: Right. Right.
Adams: ... I can leave my other people alone, man. You know what I'm saying?
Rush-Bey: OK.
Adams: We can talk about it, man. Cause you know, I be, you know how I be doing things, man. Rush-Bey: I understand ... I understand.
Adams: I can make it real ... I ain't saying that it, you know, that it ain't already good but I be a good m* * * * * *f* * * * * in the clan, you know what I'm saying?
Rush-Bey: Right, right, right. Set a time for however.
Adams: All you got to do is (inaudible) tomorrow.
The jury also heard audio tape recordings of June 16, 2001, conversations between Rush-Bey and Adams, which indicated that Rush-Bey went to Adams's mother house, where Adams was waiting for him.
Ernest Williams, who had pled guilty to possession of heroin, testified that later in June 2001, pursuant to Adams's instruction, he went to Adams's mother's house and picked up 40 ounces of heroin, which Williams thought had come from Rush-Bey, put the heroin in the basement of an apartment that Adams had rented for him, and allowed Parker to sample it. After sampling a portion of the heroin, Parker told Williams it was of poor quality and to return it to Adams's son, which Williams did. The government's expert testified that in the June 14, 2001, conversation Parker had acted as the middleman in brokering a heroin deal between Adams and Rush. The expert also testified that 40 ounces was a distributable amount of heroin.
In addition to introducing evidence as to the charged conspiracy, the government introduced evidence relating to a heroin distribution conspiracy involving brothers Edward and Joseph Serrano ("Serrano conspiracy").2 Randall Jackson, who pled guilty to being a member of the Serrano conspiracy, testified that from 1997 to 1999 Adams had purchased heroin from the Serrano brothers, who lived in Los Angeles, California. Jackson also testified that he and several women had made multiple round-trips for Adams between St. Louis and Los Angles to purchase heroin from the Serrano brothers and bring it back to St. Louis for resale. According to Jackson, Adams lost the Serrano brothers as a source of heroin in September 1999 because of a money dispute. Jackson identified Parker in the courtroom, but stated that he had had no dealings with him.
Leo Adams's brother, Will Adams, who also pled guilty to being a member of the Serrano conspiracy, testified that in December 1998 he saw Leo give money to the Serrano brothers. Will Adams also testified that in the late 1990s through 2001 he had obtained heroin from an individual in California named "Mario" and during that time had given Leo heroin four or five times and had received heroin from Leo twice. Will Adams stated that he had known Parker since the 1980s and that Parker had met him at his mother's house in May 2001 to inform him that Leo had been shot eight times with a ".45."
The government also introduced evidence obtained pursuant to search warrants. From the apartment Adams had rented for Williams, officers seized heroin and a gun. From Adams's bedroom in his mother's house, officers seized marijuana, a loaded shotgun, and ammunition. After his arrest, Adams told an officer that he was expecting a 200 or 300 ounce shipment of heroin from "Mario" and that he had received heroin from "Ed and Joe." He also admitted that he had bought heroin from Rush-Bey, but claimed that the price was too high.
As an officer executing the search warrant at Parker's home entered his bedroom, he saw Parker toss a pistol into a closet. In addition to seizing the pistol, which was a loaded 9-millimeter semiautomatic pistol, officers seized from the bedroom, a loaded magazine clip, two spiral notebooks, heroin, blenders with trace amounts of heroin, and baggies. An officer also seized from the bedroom a rifle scope and a cardboard silhouette of a human figure marked with "kill zones." The government's expert witness testified that the notebooks contained drug, weapons, and cash notations, which were indicative of mid-level drug distribution. A police officer also testified that in February 1986 he had executed a search warrant of Parker's home and seized blenders, heroin, a heroin cutting agent, notebooks with drug notations, a handgun, and $9000.00 in cash. The officer also identified a document certifying that Parker had been convicted in June 1986 for possession with the intent to distribute heroin
The jury returned verdicts finding Adams and Parker guilty of conspiracy. Pursuant to the United States Sentencing Guidelines (U.S.S.G.), the district court sentenced Parker to 327 months imprisonment and Adams to 360 months imprisonment. These timely appeals follow.
Parker argues that the district court erred in denying his motion to suppress, asserting that the affidavit submitted in support of the search warrant application contained false and misleading statements made knowingly or in reckless disregard of the truth, in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). "We review the denial of a motion to suppress de novo, but review the underlying factual determinations for clear error, giving due weight to the inferences of the district court and law-enforcement officials." United States v. Coleman, 349 F.3d 1077, 1083 (8th Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2194, 158 L.Ed.2d 754 (2004).
In the affidavit, Christian Ebner, an agent with the Drug Enforcement Administration (DEA), stated: "[p]hysical and electronic surveillance reveals that this residence is utilized by Carl Parker for narcotics activity." Parker argues that the statement was false because Ebner testified at an evidentiary hearing that no one had observed narcotic activity taking place at the house. Contrary to Parker's argument, Ebner's statement was neither false nor misleading. In his affidavit, Ebner stated that surveillance established that Parker resided at the address and made very clear that electronic surveillance established that Parker was engaging in narcotic activity at the house. Ebner summarized several wire interceptions of telephone conversations of incoming calls to and outgoing calls from the telephone number assigned to the house, including conversations in which Parker agreed to broker a heroin sale with Rush-Bey and to act as an "enforcer" for the conspiracy. Contrary to Parker's argument, the intercepted telephone...
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