U.S. v. Cline

• Decision Date: 21 November 2003
• Docket Number: No. 02-3418.,02-3418.
• Citation: 349 F.3d 1276
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Jay CLINE, a/k/a Pony, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

349 F.3d 1276

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Jay CLINE, a/k/a Pony, Defendant-Appellant.

No. 02-3418.

United States Court of Appeals, Tenth Circuit.

November 21, 2003.

COPYRIGHT MATERIAL OMITTED

Daniel E. Monnat, Monnat & Spurrier, Chtd., Wichita, KS, for Defendant-Appellant.

Anthony W. Mattivi, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff-Appellee.

Before SEYMOUR, Circuit Judge, and ANDERSON and BRORBY, Senior Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Timothy J. Cline was convicted following a seven week jury trial on the following counts: conspiracy to manufacture more than one kilogram of methamphetamine, in violation of 21 U.S.C. § 846 (count 1); three counts of distribution of varying amounts of pseudoephedrine, in violation of 21 U.S.C. § 841(d)(2) (counts 2, 3, and 4); distribution of approximately two kilograms of pseudoephedrine, in violation of 21 U.S.C. § 841(d)(2) (count 5); two counts of knowingly and intentionally using, or causing to be used, a communication facility or communication facilities in facilitating a drug trafficking offense, in violation of 21 U.S.C. § 843(b) (counts 7 and 8); three counts of distribution of varying amounts of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (counts 12, 13 and 14); and two counts of possession with intent to distribute varying amounts of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (counts 15 and 23). He was sentenced to 360 months imprisonment and five years of supervised release, and directed to pay a $1200 assessment.

Cline's motions to suppress evidence, seized pursuant to a series of wiretaps, during a traffic stop, and during a search of his house, were denied. Additionally, his motion for judgment of acquittal or, in the alternative, for a new trial was denied. He appeals the denial of those motions. We affirm.

BACKGROUND

Federal law enforcement authorities first became interested in Cline in 1994 when agents from the Internal Revenue Service and the Drug Enforcement Agency ("DEA") noticed that Cline and his wife, Janet Cline, had made an unexplained expenditure of some $500,000 in cash. While investigating this matter, agents executed a search warrant of the Clines' house but found nothing incriminating. No criminal charges were ever filed.

Federal authorities briefly investigated Cline again in 1997 after arresting Anthony Fracasso, who admitted to producing methamphetamine, but again were unable to develop sufficient evidence to file charges against Cline. In 1998 and 1999, agents from the DEA and the Kansas Bureau of Investigation began an investigation into a large drug trafficking organization in the tri-state area of southeast Kansas, southwest Missouri and northeast Oklahoma. One focus of the investigation was a motorcycle store, Biker's Dream, owned and operated by Cline. Agents suspected that Biker's Dream was the source of large quantities of pseudoephedrine a precursor chemical for the production of methamphetamine. They further suspected that Shane Wright was a methamphetamine cook and dealer and that Wright and Cline were associated in a methamphetamine production and distribution ring.¹ Facts generally outlining the course of the investigation are set out below, with greater detail supplied in connection with the discussion of specific issues.

Investigators used court-authorized wiretaps as part of their investigation into the Wright-Cline methamphetamine organization. Accordingly, they monitored five separate telephone lines, including the business telephone line for Biker's Dream and the residential telephone line of Cline and his wife, as well as Wright and others. Further details regarding the information presented in the affidavits submitted in support of the applications for the wiretaps will be discussed in connection with Cline's arguments about the wiretaps.

Another tactic the agents investigating the Wright-Cline methamphetamine organization used was to conduct traffic stops based in part upon information gleaned from the wiretaps. One such stop involved Cline, in which, based on information obtained in a wiretapped phone conversation, a DEA agent and a state trooper followed Cline's truck for several miles on a windy day, at which time they observed his truck swerve once onto the shoulder of the road, nearly hitting a bridge railing. They subsequently pulled his truck over for the observed traffic violation and, after obtaining consent to search it, discovered some 16,000 pseudoephedrine tablets. Further factual details concerning the stop will be discussed in connection with Cline's argument about the validity of the traffic stop and the subsequent seizure of the pills.

Subsequently, on March 27, 2000, agents executed a search warrant at Cline's home, during which they found numerous firearms around the house, some loaded, and some small amounts of drugs. Cline was arrested at that time. Further factual details concerning the execution of the warrant will be discussed in connection with Cline's arguments about the validity of the execution of the warrant.

Prior to trial, Cline's counsel filed a motion in limine seeking to prevent the government from presenting, inter alia, any evidence regarding Cline and his wife's pending divorce and Cline's young girlfriend. When the government informed the court that it did not intend to offer any such evidence, the court denied the motion as moot. The court added, "Nor shall the government otherwise refer to or mention this evidence before the jury panel or jury without first approaching the bench." R. Vol. 8, tab 1310 at 19. At trial, the government questioned a witness regarding Cline's girlfriend and elicited testimony about her age without first obtaining the court's approval. The court overruled Cline's objection to that testimony. Following the jury's guilty verdict, Cline filed a motion for acquittal or, alternatively, for a new trial, contending that the government's violation of the in limine order was prosecutorial misconduct warranting a new trial. Further details about the circumstances surrounding this incident will be discussed in connection with Cline's argument about this issue.

Cline argues (1) the district court erred in refusing to suppress evidence improperly obtained through the use of wiretaps because (a) the wiretaps were obtained without an adequate showing of necessity and (b) the government failed to timely seal the tapes of the calls intercepted on Cline's home telephone; (2) the district court erred in refusing to suppress evidence obtained following the allegedly unlawful traffic stop of Cline because (a) when Cline was pulled over for drifting once onto the shoulder on a windy day after being followed for several miles by a trooper, the stop was not justified at its inception; (b) the detention, while officers discussed how to proceed with their drug investigation, exceeded the permissible scope of the traffic stop; and (c) Cline's consent to search, given immediately following the unlawful stop and detention, was tainted and therefore not voluntary; (3) the district court erred in refusing to suppress evidence seized following the execution of the search warrant at Cline's home when officers broke down the door without giving the Clines sufficient time to admit the officers; and (4) the government committed misconduct by presenting testimony about Cline's girlfriend in violation of the court's in limine order and the court erred in overruling Cline's objection to the evidence and in denying his motion for a new trial.

DISCUSSION

I. Suppression of Evidence Obtained Through Wiretaps

A. Adequacy of Showing of Necessity

Cline argues first that the wiretaps on the phones at his business and his home and on Wright's home were obtained without an adequate showing of necessity. The district court denied his motion to suppress evidence obtained by means of those wiretaps, concluding that the government had adequately demonstrated necessity. "We review for an abuse of discretion a district court's determination that a wiretap was necessary." United States v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 (10th Cir.2002). Further, "[a] defendant bears the burden of proving that a wiretap is invalid once it has been authorized." Id. If a defendant succeeds in showing that the necessity requirement was not met, evidence seized pursuant to the wiretap must be suppressed. Id.

By statute, an application for a wiretap order 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. § 2518(1)(c). The authorizing judge must similarly find 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" in order to meet the necessity requirement. 18 U.S.C. § 2518(3)(c); see also Ramirez-Encarnacion, 291 F.3d at 1222.

Such traditional investigative techniques include "(1) standard visual and aural surveillance; (2) questioning and interrogation of witnesses or participants (including the use of grand juries and the grant of immunity if necessary); (3) use of search warrants; and (4) infiltration of conspiratorial groups by undercover agents or informants." United States v. VanMeter, 278 F.3d 1156, 1163-64 (10th Cir.2002) (quoting United States v. Castillo-Garcia, 117 F.3d 1179, 1187 (10th Cir. 1997), overruled on other grounds by United States v. Ramirez-Encarnacion, 291 F.3d 1219 (10th Cir.2002) (en banc n.1)). Other traditional techniques include pen registers and trap and trace devices. See Ramirez-Encarnacion, 291 F.3d at 1222 n. 2.

If it has not tried those traditional techniques, the government must explain that failure with particularity. Id. at 1222; see also ...