U.S. v. Fairchild

• Decision Date: 13 August 1997
• Docket Number: Nos. 96-2055,96-2177 and 96-2138,s. 96-2055
• Citation: 122 F.3d 605
• Parties: UNITED STATES of America, Appellee, v. David Lester FAIRCHILD, Appellant. UNITED STATES of America, Appellee, v. Kirk Allen PIERCE, Appellant. UNITED STATES of America, Appellee, v. James Lee LEISINGER, also known as "Crazy", Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 605

122 F.3d 605

UNITED STATES of America, Appellee, v. David Lester FAIRCHILD, Appellant.

UNITED STATES of America, Appellee, v. Kirk Allen PIERCE, Appellant.

UNITED STATES of America, Appellee, v. James Lee LEISINGER, also known as "Crazy", Appellant.

Nos. 96-2055, 96-2177 and 96-2138.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 15, 1997.

Decided Aug. 13, 1997.

Dennis W. Hartley, Colorado Springs, CO, Wallace L. Taylor, Cedar Rapids, IA, argued, for appellant Kirk Pierce.

Mark R. Brown, Cedar Rapids, IA, argued, for appellant James Leisinger.

Kandice A. Wilcox, Asst. U.S. Atty., on the brief, for appellee.

Before LOKEN, BRIGHT and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BRIGHT, Circuit Judge.

Appellants, members of the Sons of Silence motorcycle gang, were convicted on RICO and drug charges and sentenced to lengthy prison terms. Appellants filed separate briefs on appeal. In addition to challenging the sufficiency of the evidence, they also raise the following arguments: (1) the district court erred by failing to conduct a hearing on wiretap issues pursuant to Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978); (2) the district court erred by not requiring the government to identify its confidential informants; (3) the district court erred by admitting evidence of prior bad acts; (4) the district court provided improper jury instructions; and (5) a variety of sentencing issues. We affirm the district court ¹ on all of these issues.

BACKGROUND

David Fairchild, James Leisinger and Kirk Pierce were jointly charged with eleven other defendants ² in a multi-count indictment on November 18, 1994. The government subsequently filed a forty-count superseding indictment against these individuals.

Trial began on November 13, 1995, and lasted approximately six weeks. The government established that appellants were members of the Waterloo/Cedar Falls Sons of Silence (SOS) motorcycle gang during a portion of the time period alleged in the indictment. The government asserted that SOS is an organization engaged in racketeering and the distribution of drugs, particularly methamphetamine. The jury returned guilty verdicts against the defendants, though it acquitted Leisinger and Fairchild on some counts.

The district court sentenced Fairchild to 300 months on counts 3 (conspiracy to distribute methamphetamine) and 7 (possession with intent to distribute); 60 months on count 15 (conspiracy to commit money laundering), and 240 months each for counts 1 (commission of a pattern of racketeering activity), 2 (conspiracy to commit racketeering activity), 6 (aiding and abetting), 16,17,19 and 20 (all money laundering). The district court sentenced Leisinger to 276 months on count 3 and 240 months on count 2. The district court sentenced Pierce to 112 months each on count 1, 2, 3, 11 (tampering with a witness or potential witness), and 29 (violent crime in aid of racketeering activity). All of these terms are to be served concurrently.

Appellants appealed. Due to the extensive factual background, we discuss the essential facts as they are relevant to each issue raised on appeal.

I.

During the investigation of the case, the government placed a wiretap on the phone of Jerry VanBrocklin, a member of the Cedar Falls SOS. At trial, the government introduced into evidence tape recorded conversations obtained through this wiretap. Appellants Fairchild and Pierce challenge the denial of Pierce's pre-trial motion seeking the identities of the informants who supported the government's wiretap application.

We review the court's decision to deny Pierce's request for an abuse of discretion. United States v. Harrington, 951 F.2d 876, 877 (8th Cir.1991). Fairchild did not preserve this issue for appeal, thus we review the court's decision as to him only for plain error. See Fed.R.Crim.P. 52(b). "The defendant bears the burden of demonstrating the need for disclosure, ... and the court must weigh the defendant's right to information against the government's privilege to withhold the identity of its confidential informants." Harrington, 951 F.2d at 877. This privilege may be superseded, however, if disclosure is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, ..." Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957). Mere speculation fails to meet this burden. Harrington, 951 F.2d at 877. Neither appellant meets that burden here.

The government provided the identities of two informants expected to testify at trial. The other four informants were not called as witnesses. The district court held an in-camera hearing and concluded that, despite slight discrepancies between statements of some informants, the government did not need to disclose their identities. Appellee's App. at 4. The court noted that "there is significant risk to the health and safety of the informants if their identity is disclosed. Furthermore, ... their testimony would not be particularly significant on the issue of the suppression of the wiretaps." Id. The government and representatives of the district court were the only parties present at the hearing.

Appellants argue that the district court's recognition that the informants were participants or percipient witnesses to the crime charged (rather than mere tipsters) dictates that disclosure is almost always required. United States v. Barnes, 486 F.2d 776, 778-779 (8th Cir.1973). The district court considered this factor, however, and determined that the concern for the informants' safety was more compelling. Appellee's App. at 3-4. Indeed, the district court correctly weighed the crime charged, potential defenses, the possible significance of the informers' testimony, and other relevant factors pursuant to Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639 (1957) (establishing balancing test). Fairchild App. Tab 6 at 2-5. The district court did not abuse the limits of its discretion or commit plain error by not requiring disclosure of the identities of the informants.

We also reject the argument that the district court erred by not allowing the appellants to participate at the in-camera hearing or, alternatively, by not providing their attorneys with the informants' identities with the admonition that they not inform their clients. Important policy considerations exist for not allowing defendants or their counsel to attend such hearings. United States v. Grisham, 748 F.2d 460, 464 (8th Cir.1984). No abuse of discretion exists in denying appellants' request for greater involvement at the in-camera hearing.

II.

Appellants Fairchild and Pierce next request this court to vacate their convictions because the district court ³ denied them a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978) to challenge the application of the wiretap order on VanBrocklin's home. The standard of review is for an abuse of discretion, United States v. Hiveley, 61 F.3d 1358, 1360 (8th Cir.1995), but because Fairchild did not raise this argument before the district court, the standard of review for his claim is plain error. Fed.R.Crim.P. 52(b).

A Franks hearing permits a challenge to the veracity of a search warrant affidavit. Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). The defendant must meet two prongs under Franks to be entitled to a hearing. First, the defendant must make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, ..." Id. Second, the allegedly false statement must be necessary to the finding of probable cause. Id. at 156, 98 S.Ct. at 2676-77.

At trial, the government relied upon tape recorded conversations involving the appellants and obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. Application for the wiretap was supported by an affidavit executed by FBI Agent Mark Terra. Prior to trial, Pierce challenged the order approving the wiretap and requested a Franks hearing. We have reviewed the district court's thorough examination of this issue and conclude that the district court did not abuse its discretion by denying appellant Pierce's request for a Franks hearing. United States v. Gruber, 908 F.Supp. 1451, 1468-1471 (N.D.Iowa, 1995).

III.

Appellants Fairchild and Leisinger argue that the district court admitted unduly prejudicial evidence at trial. Specifically, they object to the testimony of three witnesses: Chad Nelson, Kevin Petersen and Mike Hope. In addition, Fairchild objects to the testimony of Officer Richard Smith and Dean Dorman. The trial court's decision on the admission of evidence is reviewed for an abuse of discretion. United States v. Darden, 70 F.3d 1507, 1527 (8th Cir.1995). Any error not brought to the attention of the district court by objection to its admissibility is reviewed only for plain error. Fed.R.Crim.P. 52(b).

Chad Nelson testified that Leisinger held a knife to his throat and pointed a loaded gun at him during an argument. Tr. at 2114. Nelson knew of Leisinger's involvement with SOS, but testified that the dispute was "personal," and pertained to a break in at Leisinger's residence unrelated to SOS issues. Id. at 2123. No contemporaneous objection was made. During a subsequent sidebar, the district court inquired about the relevancy of this testimony and, at that time, Leisinger objected. The court declined to strike the evidence because no contemporaneous objection was made, id. at 2134, however, the court stated its concern that the record would "get totally muddied up with too much stuff that's really very tangential to this case." Id. at 2130. Although Nelson's testimony contained limited relevance, its...