U.S. v. Carter

• Decision Date: 13 June 2006
• Docket Number: No. 04-3062.,04-3062.
• Citation: 449 F.3d 1287
• Parties: UNITED STATES of America, Appellee v. Reginald Curtis CARTER, a/k/a Reggie, a/k/a Black, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

449 F.3d 1287

UNITED STATES of America, Appellee v. Reginald Curtis CARTER, a/k/a Reggie, a/k/a Black, Appellant.

No. 04-3062.

United States Court of Appeals, District of Columbia Circuit.

Argued April 18, 2006.

Decided June 13, 2006.

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Appeal from the United States District Court for the District of Columbia (No. 00cr00252-03).

David B. Smith, appointed by the court, argued the cause for appellant.

John P. Mannarino, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and Roy W. McLeese, III, Martin D. Carpenter, and Thomas J. Tourish, Jr., Assistant U.S. Attorneys.

Before: ROGERS, TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

"Operation Hole in One" was a multi-year investigation by the Federal Bureau of Investigation ("FBI") and the D.C. Metropolitan Police Department ("MPD") of a heroin trafficking operation in northeast Washington, D.C. Reginald C. Carter was identified as being part of the trafficking operation and he was subsequently convicted by a jury of possession with intent to distribute heroin and conspiracy to distribute and possess with intent to distribute heroin and cocaine. On appeal, Carter challenges his conviction on the ground the district court erred in denying his motion to suppress evidence obtained from the wiretapping of his cell phone because the government failed to meet its burden under the wiretapping statute to prove that the wiretaps were necessary and that it had limited the wiretapping of conversations not pertinent to the investigation. Carter contends further, for the first time on appeal, that the district court erred in instructing the jury on the scope of his conspiratorial agreement and that he was denied the effective assistance of trial counsel under the Sixth Amendment to the Constitution in moving to suppress the wiretap evidence. Carter also challenges his life sentence on both procedural and substantive grounds.

Our decisions in United States v. Sobamowo, 892 F.2d 90 (D.C.Cir.1989), and United States v. Anderson, 39 F.3d 331, 342 (D.C.Cir.1994), rev'd in part on other grounds by United States v. Anderson, 59 F.3d 1323 (D.C.Cir.1995), are dispositive of Carter's suppression claim under the wiretapping statute. Likewise, our decision in United States v. Childress, 58 F.3d 693, 722 (D.C.Cir.1995), demonstrates the district court did not plainly err in instructing the jury on the scope-of-agreement requirement. Although Carter's ineffective assistance of counsel claim regarding his suppression motion presents an interesting question regarding the scope of the suppression remedy for a violation of the wiretap statute, the court need not resolve this question because Carter cannot show the requisite prejudice under Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We must remand Carter's case, however, because the district court failed to point to evidence supporting its finding that Carter was responsible for the distribution of over 30 kilograms of heroin and failed to make the required findings on Carter's role as an "organizer or leader" of criminal activity under U.S. Sentencing Guidelines § 3B1.1(a). Childress, 58 F.3d at 722. In addition, Carter is entitled to a limited remand in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Coles, 403 F.3d 764, 769 (D.C.Cir.2005). Accordingly, we remand the case to the district court on Carter's sentence but otherwise affirm the judgment of conviction.

I.

In December 1996, the FBI and the MPD began investigating heroin trafficking in the Langston Carver Terrace neighborhood in northeast Washington, D.C. The task force engaged in undercover drug buys, search warrants, audio and video surveillance, and, ultimately, court-authorized wiretaps. A confidential informant alerted the task force in February 1999 that Carter was a possible supplier of heroin to a drug dealer, Ricardo Lanier. In April 2000, the district court¹ approved the wiretapping of Carter's cell phone; the court extended the wiretap authorization on two occasions. Over a 76-day period, 964 completed calls were made to and from Carter's cell phone. Of these calls, 600 were classified as "pertinent" to the investigation; of the 364 "non-pertinent" calls, the monitoring agents limited (i.e., minimized) their taping of 100 calls.

Evidence from the wiretaps and surveillance indicated that Lanier was receiving his supply of heroin from a larger drug trafficking organization involving numerous individuals, including Carter, Carter's cousin Earl Garner, Jr. ("Junior"), and Junior's father Earl Garner, Sr. ("Senior"). In 1996 Carter and Junior had approached Senior about setting up a heroin distribution operation. The operation expanded in late 1998, and again in 1999, when Carter and Senior established a drug "lab" at an apartment in Maryland where they cut, weighed, and stored the drugs and counted the money from the drug sales. In 2000, Carter and Junior assumed a more visible role and more responsibility for the drug sales after Senior became concerned about police surveillance. By this time, Carter was distributing 14 to 500 grams of heroin weekly. To avoid detection by the police, Carter and Senior eventually moved the contents of the Maryland lab to an apartment in Washington, D.C.; Carter had the only key to the apartment.

"Operation Hole in One" ended when Carter, the Garners, and approximately 30 others were arrested on August 8, 2000. At that time 300 law enforcement officials executed 35 search warrants. Recovered was over one million dollars in cash, several kilograms of heroin, drug paraphernalia, including cutting materials, and nineteen firearms, including three from the D.C. apartment.

Carter was indicted on five counts: (1) conspiracy to distribute and possess with intent to distribute heroin and cocaine, 21 U.S.C. §§ 846 and 841(b)(1)(A)(i); (2) possession with intent to distribute 100 grams or more of heroin, 21 U.S.C. §§ 841 and 841(b)(1)(B)(i); (3) violation of the felon-in-possession statute, 18 U.S.C. § 922(g)(1); (4) participation in a continuing criminal enterprise, 21 U.S.C. § 848; and (5) the use of a firearm in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1). The district court denied his pretrial motion to suppress the wiretap evidence. A jury found him guilty on Counts (1) and (2) and also found that the quantity of heroin involved in the conspiracy count exceeded one kilogram. Applying the mandatory Sentencing Guidelines then in effect, the district court sentenced Carter to life imprisonment, assigning him a base offense level of 38 after attributing 35 kilograms of heroin to him, U.S.S.G. § 2D1.1(c)(1), and a four-level enhancement for his role as an "organizer or leader" of criminal activity, id. § 3B1.1(a).

II.

A.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., authorizes the district court to approve an application for the interception of certain wire, oral, or electronic communications. 18 U.S.C. § 2518. The wiretap statute requires that an application for a wiretap shall be in writing, under oath, and shall contain certain information including "a full and complete statement of the facts and circumstances relied upon by the applicant[] to justify his belief that an order should be issued." Id. § 2518(1). On the basis of the facts submitted by the applicant, the district court may authorize a wiretap upon finding that (1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that "particular communications concerning that offense will be obtained" through an interception; (3) "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried"; and (4) probable cause exists to believe that the communication facility sought to be wiretapped "[is] being used, or [is] about to be used, in connection with the commission of [the] offense." Id. § 2518(3)(a-d); see United States v. Donovan, 429 U.S. 413, 435, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). The determination that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous," 18 U.S.C. § 2518(3)(c), is referred to as the "necessity requirement," and it is the "keystone of congressional regulation of electronic eavesdropping." United States v. Williams, 580 F.2d 578, 587-588 (D.C.Cir.1978).

The wiretapping statute also requires that "[e]very [wiretap] order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable [and] shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception ...." 18 U.S.C. § 2518(5). This is referred to as the "minimization requirement." Although "[t]he statute does not forbid the interception of all nonrelevant conversations," the government must make reasonable efforts to "minimize" the interception of such conversations. Scott v. United States, 436 U.S. 128, 139-40, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). The statute also provides that an order authorizing an interception cannot extend "for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days." 18 U.S.C. § 2518(5).

The wiretap statute provides that "no part of the contents of [intercepted] communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding ... if the disclosure of that information would be in violation of this chapter." Id. § 2515. The "aggrieved person" may...