U.S. v. Earls, s. 93-6350

• Citation: 42 F.3d 1321
• Decision Date: 15 December 1994
• Docket Number: Nos. 93-6350,93-6353 and 93-6403,s. 93-6350
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Emmanuel EARLS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Monroe Jefferson MORRIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Barry D. BISCHOF, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1321

42 F.3d 1321

UNITED STATES of America, Plaintiff-Appellee, v. James Emmanuel EARLS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Monroe Jefferson MORRIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Barry D. BISCHOF, Defendant-Appellant.

Nos. 93-6350, 93-6353 and 93-6403.

United States Court of Appeals Tenth Circuit.

Dec. 15, 1994.

M. Jay Farber, Asst. U.S. Atty. (Vicki Miles-LaGrange, U.S. Atty., with him on the brief), Oklahoma City, OK, for plaintiff-appellee.

Don J. Gutteridge, Jr. of Kerr, Irvine, Rhodes & Ables, Oklahoma City, OK, for defendant-appellant James Emmanuel Earls (No. 93-6350).

John Romig Smith, Choctaw, OK, for defendant-appellant Monroe Jefferson Morris (No. 93-6353).

Michael S. Homsey, Oklahoma City, OK, for defendant-appellant Barry Dean Bischof (No. 93-6403).

Before TACHA and KELLY, Circuit Judges, and VRATIL, District Judge. ^d

PAUL KELLY, Jr., Circuit Judge.

Mr. Earls, Mr. Morris and Mr. Bischof appeal from their convictions on various counts of drug and drug-related charges and from the district court's imposition of sentence. Our jurisdiction arises under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742 and we affirm.

Background

Mr. Earls, Mr. Morris and Mr. Bischof were arrested on January 26, 1993, following execution of search warrants at their residences. The arrests were the result of an eighteen month investigation by local, state, and federal agencies into a drug conspiracy. The investigation was facilitated by the use of numerous electronic devices such as wire taps, oral taps, and satellite tracking devices. The Oklahoma Court of Criminal Appeals had granted an order permitting the wiretaps in order to determine the extent of the drug conspiracy, the identity of those involved, and the manner in which the conspiracy operated.

Defendants were indicted for various drug and drug-related offenses on March 3, 1993. A continuance of trial was granted by a magistrate judge on March 30, 1993, based on a request by Mr. Morris and Mr. Bischof. Mr. Earls objected to the continuance. The trial was nevertheless continued until July 12, 1993, at which time it commenced. Defendants were found guilty on August 2, 1993, and sentenced on October 4, 1993.

Mr. Earls argues on appeal that (1) the amount of time elapsed between his indictment and the trial constituted a violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161-3174; (2) there was insufficient evidence for the jury to conclude that Mr. Earls was part of a conspiracy; (3) the district court erred in failing to suppress the wiretap evidence introduced in the case; (4) the district court's determination of the quantity of drugs attributable to him was wrong; and (5) the district court erred in enhancing his sentence by two levels for the presence of a gun at his residence.

Mr. Bischof argues that the district court erred in (1) failing to suppress evidence obtained pursuant to the search warrant; (2) failing to suppress recorded evidence; (3) overruling Mr. Bischof's objection to the jury instruction for Count 38; and (4) improperly determining the quantity of drugs attributable to him.

Mr. Morris argues that the evidence presented at trial was insufficient to show that he was part of a conspiracy.

I. Speedy Trial Act

Mr. Earls claims that he suffered a violation of the Speedy Trial Act ("the Act"), 18 U.S.C. Secs. 3161-3174. The Act requires that the trial of a defendant charged with an indictment commence within seventy days from the date the indictment was filed or from the date the defendant appears before a judicial officer of the court in which such charge is pending, whichever date occurs last. Id. Sec. 3161(c)(1). The Act, however, allows certain periods of time to be excluded when computing the amount of time elapsed before trial. See id. Sec. 3161(h). We review the district court's denial of a motion to dismiss under the Act for an abuse of discretion however we review the district court's compliance with the requirements of the Act de novo. United States v. Occhipinti, 998 F.2d 791, 796 (10th Cir.1993).

Mr. Earls was indicted on March 3, 1993 and arraigned on March 5, 1993. The seventy day limit for trial began to run on March 6, 1993. See United States v. Vasser, 916 F.2d 624, 626 (11th Cir.1990), cert. denied, 500 U.S. 907, 111 S.Ct. 1688, 114 L.Ed.2d 82 (1991); United States v. Blackmon, 874 F.2d 378, 380 (6th Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 and cert. denied, 493 U.S. 859, 110 S.Ct. 168, 107 L.Ed.2d 125 (1989). Seven days later, his codefendants filed a pretrial motion for a continuance. Following a hearing, a continuance was granted until July 12, 1993. The time between the motion for continuance and the hearing on the motion is excludable. 18 U.S.C. Sec. 3161(h)(1)(F). Additionally, the time allowed for the continuance is excludable. Id. Sec. 3161(h)(7) ("A reasonable period of delay [shall be excluded] when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted."); id. Sec. 3161(h)(8)(A) ("Any period of delay resulting from a continuance granted by any judge [shall be excluded if] ... the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial."); United States v. Theron, 782 F.2d 1510, 1514 (10th Cir.1986) ("[E]xtensions sought by one codefendant toll the limitations period of all."). As a result, the only nonexcludable days are those between indictment and the motion for continuance, a total of six days.

Mr. Earls argues that the delay resulting from the continuance should not be excluded because the court did not comply with the statutory requirement that the court set forth the reasons for its findings. See 18 U.S.C. Sec. 3161(h)(8)(A). Specifically, Mr. Earls states that "nowhere in the entire record of this case are any reasons given for Magistrate Argo's finding that the 'ends of justice have been met.' " Brief for Appellant Earls at 10. At the hearing on the motion for continuance, however, Magistrate Argo specifically stated the factors on which he relied in finding that the ends of justice would be served by granting the continuance. Aplt.App. I Supp. at 22-23. Consequently, the amount of time that elapsed between Mr. Earls' indictment and his trial did not constitute a violation of the Act.

II. Sufficiency Of The Evidence

Mr. Earls and Mr. Morris both argue that the evidence presented at trial was insufficient to support their conviction for conspiracy to possess with intent to distribute methamphetamine/amphetamine. We review the evidence in the light most favorable to the government to determine if a reasonable juror could find beyond a reasonable doubt from the evidence, along with reasonable inferences therefrom, that the defendants were guilty. United States v. Deninno, 29 F.3d 572, 576 (10th Cir.), amended, (Aug. 8, 1994).

In order to prove a drug conspiracy, the government must show that two or more persons agreed to violate the law, the defendant knew the essential objectives of the conspiracy, and the defendant knowingly and voluntarily became a part of it. United States v. Morehead, 959 F.2d 1489, 1499 (10th Cir.1992). Mere association with coconspirators does not make one a participant in the conspiracy. United States v. Garcia, 994 F.2d 1499, 1504 (10th Cir.1993).

Mr. Earls claims that there is no evidence demonstrating that he was a part of the conspiracy. Government witnesses and recorded conversations, however, implicate Mr. Earls as Mr. Bischof's drug supplier. Moreover, testimony and telephone records reveal a recurring pattern of interstate drug activity.

Mr. Morris claims that nothing in the record indicates that he had any connection with the coconspirators other than as an old friend. However, taped conversations between Mr. Morris and Mr. Bischof and between Mr. Morris and a confidential informant implicate Mr. Morris in the drug conspiracy. Mr. Morris claims that references to "parts," a "trailer," "front end parts" and "green" in these phone conversations involved innocent talk regarding the repair of automobiles and motorcycles. Based upon expert testimony, however, the jury could have determined that these were code words for drugs.

III. Suppression Of Recorded Evidence

Mr. Bischof and Mr. Earls both argue that the district court should have suppressed the recorded evidence because the government did not terminate the wiretaps after the objective of the interception was met, and did not minimize the interception. In reviewing the denial of the motion to suppress, we view the district court's fact findings under the clearly erroneous standard. United States v. Caro, 965 F.2d 1548, 1551 (10th Cir.1992).

Under 18 U.S.C. Sec. 2518(5), an intercept "must terminate upon attainment of the authorized objective." The government stated that the objective of the intercept in this case was to "determine the total means of the conspiracy, the manner in which they operated, and who all of the players were." Aplt.App. at 89. Mr. Bischof and Mr. Earls claim that law enforcement officials knew of all the persons involved in the conspiracy prior to termination of the wiretap, and that all evidence recorded after that knowledge was gleaned should have been suppressed. Defendants, however, have failed to show that the objective of the wiretap was met prior to its termination. See United States v. Brown, 941 F.2d 656, 659 (8th Cir.1991) (holding that a wiretap may lawfully continue past the point that officers learned of the defendant's source of drugs because the officers had not yet learned of the extent of the conspiracy and the identity of the coconspirators). Moreover, Defendants' argument that the broadness of the objective created an indefinite intercept is without merit.

Intercepts must be "conducted in such a way as to minimize...