U.S. v. DePew

• Decision Date: 03 June 1991
• Docket Number: No. 90-5667,90-5667
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Thomas DEPEW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 324

932 F.2d 324

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Thomas DEPEW, Defendant-Appellant.

No. 90-5667.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 7, 1991.

Decided May 3, 1991.

As Amended June 3, 1991.

James M. Lowe, Alexandria, Va., for defendant-appellant.

Geoffrey Robert Brigham, Crim. Div., U.S. Dept. of Justice, Washington, D.C., argued (Henry E. Hudson, U.S. Atty., Michael R. Smythers, Asst. U.S. Atty., W Neil Hammerstrom, Jr., Asst. U.S. Atty., Alexandria, Va., for plaintiff-appellee.

Before SPROUSE and CHAPMAN, Circuit Judges, and COPENHAVER, United States District Judge for the Southern District of West Virginia, sitting by designation.

CHAPMAN, Circuit Judge:

Following a jury trial, Daniel DePew was convicted of conspiracy to kidnap in violation of 18 U.S.C. Sec. 1201(c) and conspiracy to exploit a minor in a sexually explicit film in violation of 18 U.S.C. Sec. 371 and Sec. 2251(a). He was sentenced to 400 months imprisonment. He now appeals claiming error because (1) there was no proof of a conspiracy; (2) his statement to an FBI agent should have been suppressed; (3) wiretap evidence should have been suppressed; (4) the government rebuttal argument was improper and deprived him of his presumption of innocence and of a fair trial; (5) the trial court improperly admitted "editorialized summaries" of meetings and telephone calls; (6) the court improperly used a vulnerable victim adjustment to increase the offense level in determining his sentence; and (7) in applying the Sentencing Guidelines the court should have sentenced him under the conspiracy to commit murder guideline.

We have carefully considered the record, the briefs and the oral arguments and we find no merit to any of these exceptions.

I

It is not necessary to give a long recitation of the facts. The district court was correct in observing that the trial record "reflects a tale of unspeakable evil and tragedy narrowly averted." 751 F.Supp. 1195. This describes the action of two individuals, Daniel DePew and Dean Lambey, who conspired to kidnap a young male about 12 years of age for the purpose of producing a "sex-snuff" film. In this film the boy would be sexually abused, tortured and finally murdered. The plot was uncovered by two California detectives who were investigating the production of child pornography films. The district court authorized wiretaps on certain telephones which produced considerable evidence of the conspiracy. There were video tapes of certain meetings, and items seized from a search of appellant's apartment were admitted into evidence.

Appellant claims that there was never a conspiracy, that the government's case only proved that he had entertained certain fantasies, and that his discussion of these fantasies with Lambey had not resulted in an agreement necessary to support a finding that there was a conspiracy.

There was sufficient evidence to establish the essential elements of a conspiracy, and it was for the jury to decide whether the appellant's actions represented fantasies or whether he and his coconspirator intended to go through with their gruesome plan. The jury found him guilty, so it obviously must have agreed with the trial judge, who stated when sentencing the appellant: "I've heard the evidence. There's no doubt in my mind that you intended to do that. I'm not for a moment persuaded by your statement that you never intended to go through with it and that it was a fantasy."

The jury verdict must be sustained if there is substantial evidence to support the finding of guilt when the evidence is viewed in the light most favorable to the government. United States v. Norris, 749 F.2d 1116 (4th Cir.1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2139, 85 L.Ed.2d 496 (1985). It is not necessary to prove a formal agreement to establish a conspiracy in violation of federal law; a tacit or mutual understanding among or between the parties will suffice. United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.1989). The evidence is overwhelming that the appellant was the initiator of the conspiracy. Although every detail of their plan had not been agreed upon, the essential nature of the plan was in place to kidnap a young male of approximately 12 years of age, to use a rented van to transport him from the place of kidnapping in Virginia to the place of filming in Maryland and then record the sexual molestation torture and eventual murder of the child on film for the purpose of some type of sexual gratification and also for the profit to be made in selling the film.

II

DePew claims that at the time of his interview with an FBI agent on August 14, 1989, he had asked for an attorney and that the FBI agents had promised him a deal if he talked first. There was a full suppression hearing on this issue and the district court found the agent's testimony more credible and that the appellant had not requested a lawyer during the course of the interrogation. The findings of the district court are not clearly erroneous, and the district court's denial of the motion to suppress the statement made to the FBI agent is affirmed. See United States v. Bethea, 598 F.2d 331, 333-34 (4th Cir.), cert. denied, 444 U.S. 860, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979).

There is also no merit to appellant's claim that the wiretap evidence obtained from authorized intercepts on the appellant's home telephone and work telephone should have been suppressed. Appellant claims that the wiretap affidavit and application failed to establish probable cause that his telephone would be used in furtherance of the conspiracy and did not show any need for the wiretap in light of other investigative procedures. 18 U.S.C. Sec. 2518(3)(b) permits a district court to enter an order authorizing a wiretap if "there is probable cause for belief that particular communications concerning that offense will be obtained through such interception." In applying for such an order it is not necessary for the applicant to prove beyond a reasonable doubt that communications concerning the offense will be obtained, but only that there is a fair probability thereof. United States v. Alfano, 838 F.2d 158, 162 (6th Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 64, 65, 102 L.Ed.2d 42 (1988). The issuing judge is in the best position to determine if probable cause has been established in light of the circumstances as they appear at the time. The application was supported by a twenty-four page affidavit and the district court expressly found that this material established "more than ample probable cause" that the appellant would use his telephone to discuss the film and identify other participants in the conspiracy. Great deference is normally paid to such a determination by the issuing judge, and our role is to determine whether the issuing court had a substantial basis for concluding that electronic surveillance would uncover evidence of wrong doing. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983).

The need for the intercept order was established in the petition and affidavit. In United States v. Leavis, 853 F.2d 215, 221 (4th Cir.1988), we held that the showing of need is tested in a practical and common sense fashion and not in an overly restrictive manner that would unduly hamper the investigative powers of law enforcement agents. The application in the present case met this standard and the evidence obtained was properly admitted.

III

We find no error in the district court allowing law enforcement officers to summarize their telephone conversations and meetings with the conspirators. The tape and video recordings of these conversations and meetings were lengthy and some contained incomprehensible portions because of overlapping conversations and technical problems. The court's actions were consistent with Federal Rule of Evidence 611. We find no error in the trial court's other evidentiary rulings about which appellant now complains.

IV

We find no merit to the claim that the rebuttal jury argument of the Assistant United States Attorney was improper and "exceeded all bounds of propriety." The appellant did not object at the time of the allegedly offensive statements, and absent such an objection, we may not reverse without a finding of plain error. United States v. Mitchell, 886 F.2d 667, 673 (4th Cir.1989). In United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985), the Supreme Court instructed that plain error should be found only "sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." The statements of the Assistant United States Attorney in his rebuttal jury argument do not approach a level that would meet the plain error rule or cause a miscarriage of justice.

V

Appellant makes two attacks upon the length of his sentence. First, he claims that he was convicted of conspiracy to kidnap, but that he was sentenced as though he had committed first degree murder. He argues that he should have been sentenced under Sec. 2A2.1(a) for conspiracy to commit murder. Second, he claims that the offense level should not have been increased by 2 under Sec. 3A1.1 on a finding that the victim of the offense was unusually vulnerable due to age, because the conspiracy did not progress to the point of a victim being selected, and there can be no increase for the vulnerability of an unknown victim.

In arriving at appellant's sentence, the district court stated:

The court concludes that the conduct involved here was a conspiracy to kidnap a child, to abuse that child sexually and ultimately to murder that child and dispose of the body. I think the evidence for that was compelling. And that is the conduct on which the court focuses in this sentencing proceeding.

Accordingly, the court concludes that 2X1.1 is the correct place to begin.... Section 2X1.1(c) ¹ states that when an attempt, solicitation, or conspiracy is expressly...