U.S. v. Green, s. 97-6045

• Decision Date: 28 April 1999
• Docket Number: Nos. 97-6045,97-6047,97-6046,s. 97-6045
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarence Lee GREEN, Erik Lamont Browne, Eric Bly, Defendants-Appellants,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 822

175 F.3d 822

UNITED STATES of America, Plaintiff-Appellee, v. Clarence Lee GREEN, Erik Lamont Browne, Eric Bly Defendants-Appellants,

Nos. 97-6045, 97-6046, 97-6047.

United States Court of Appeals Tenth Circuit.

April 28, 1999.

David W. Lee, Lee & Gooch, P.C., Oklahoma City, Oklahoma, for Erik Lamont Browne, Defendant-Appellant.

Teresa Brown, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Eric William Bly, Defendant-Appellant.

Michael G. Katz, Federal Public Defender, and James P. Moran, Assistant Federal Public Defender, Denver, Colorado, submitted a brief for Clarence Lee Green, Defendant-Appellant. ¹

Leslie M. Maye, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with her on the brief), Oklahoma City, Oklahoma, for United States of America, Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, BARRETT and TACHA, Circuit Judges.

SEYMOUR, Chief Judge.

Clarence Lee Green, Erik Browne, Eric Bly, and numerous other individuals were charged in a 97 count indictment arising out of a conspiracy to distribute cocaine base (crack). The charges included conspiracy to possess with intent to distribute powder cocaine and crack cocaine; possession Mr. Green appeals on three grounds: 1) the affidavit on which the wiretap order rested contained false statements and material omissions and should therefore be invalidated; 2) the trial court erred in admitting the tapes resulting from the wiretap order as the prosecution did not lay a sufficient foundation; and 3) the district court erred in admitting evidence that Mr. Green had threatened a co-conspirator at gunpoint. We affirm Mr. Green's conviction.

with intent to distribute and the distribution of crack cocaine; use of telephones and wire transfers in facilitating the conspiracy; maintaining a place to manufacture or distribute crack cocaine; money laundering; and felon in possession of a firearm. Of the eighteen individuals charged, only Mr. Green, Mr. Bly, and Mr. Browne declined to plead guilty. A jury convicted the three men on most counts. Mr. Green and Mr. Bly were sentenced to life imprisonment, and Mr. Browne to 324 months imprisonment.

Mr. Bly appeals on four grounds: 1) the district court erred in admitting into evidence one kilogram of cocaine which was irrelevant and highly prejudicial; 2) the evidence was insufficient to support Mr. Bly's conviction on several of the counts; 3) the district court erred in enhancing his sentence for a leadership role under the Sentencing Guidelines; and 4) the district court erred in enhancing his sentence based on two prior drug convictions under 21 U.S.C. §§ 841(b)(1)(A) & 851. We affirm in part and vacate and remand in part.

Mr. Browne asserts one ground for appeal: the district court erred in calculating the amount of drugs for which he should be accountable. We agree and remand for resentencing.

I. FACTS

We recite the relevant facts in the light most favorable to the government since the jury convicted defendants. See United States v. Duran, 133 F.3d 1324, 1326 n. 1 (10th Cir.1998). From October 1994 to July 1995, members of the Main Street Mafia Crips (MSMC) traveled between southern California and Oklahoma City in order to transport and distribute crack cocaine in Oklahoma City. MSMC members would transport the cocaine in powder form, and Richard Phillips, the leader of the Oklahoma City drug distribution conspiracy, would "cook" the cocaine to manufacture crack cocaine. MSMC members would distribute the crack in an area of abandoned houses referred to as "the Trenches" or at the Drover Inn in Oklahoma City.

Numerous individuals were involved with the conspiracy. Richard Phillips, also known as "Richie Rich," obtained large quantities of cocaine from various sources in Los Angeles, frequently transported it, distributed quantities of crack cocaine to more junior individuals who would then deal it, and received and guarded the proceeds of drug sales. He made most decisions jointly with defendant Clarence Lee Green, who served as the second-in-charge of the organization. Mr. Green, also known as EJ, was in charge when Mr. Phillips was not in Oklahoma City. When neither Mr. Green nor Mr. Phillips was present in Oklahoma City, primary responsibility for the drug operation fell to Eric Bly, who was commonly referred to as "El." Other individuals, like Pete Monroe, played key roles in establishing and maintaining the MSMC operations in Oklahoma City. Several individuals, including Mr. Bly, and for a shorter while Erik Browne, would actually sell the drugs to users of crack cocaine. Mr. Browne was frequently called "Light."

When MSMC members first started operating in Oklahoma City they stayed in a hotel, but Mr. Phillips and Mr. Green soon decided to rent a home. The group rented a home located at 2436 Southwest 46th Street, in which Mr. Green, Mr. Bly, and The FBI applied for wiretap authorization to further its investigation of the MSMC drug conspiracy. It first received authorization in April 1995 in Los Angeles; two months later it applied for and received authorization in Oklahoma City to wiretap the rented home on Southwest 46th Street as well as Consuelo Carbajal's residence. The FBI obtained significant information about the MSMC's drug operations through these wiretaps.

Mr. Phillips were all assigned bedrooms. Soon thereafter Mr. Bly met and became romantically involved with Consuelo Carbajal, subsequently staying at her residence.

The operations of the conspiracy changed as necessary. For example, Mr. Phillips was arrested with one kilogram of cocaine in an Ontario, California, airport, and MSMC members in Oklahoma City adjusted accordingly. Drug operations continued through July 1995, and the organization handled over fifteen kilograms during the course of the conspiracy.

II. CLARENCE LEE GREEN

A. Material Omissions from the Wiretap Affidavit

Mr. Green first asserts that the Oklahoma City affidavit and application for wiretap authorization, albeit facially sufficient, was fraught with misrepresentations and material omissions. He contends that had the affidavit been accurate, it would not have met the statutorily mandated "necessity requirement," and therefore the district court should have suppressed the resultant tapes.

The federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, governs electronic eavesdropping by law enforcement. See 18 U.S.C. §§ 2510-22. It sets up special procedures for obtaining wiretap authorization, including presenting a written application to a judge. A judge may only grant such authorization if the application meets the necessity requirement by showing 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 to try." 18 U.S.C. § 2518(3)(c). The purpose of this requirement "is to ensure that the relatively intrusive device of wiretapping 'is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.' " United States v. Edwards, 69 F.3d 419, 429 (10th Cir.1995) (quoting United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974)). If an application was granted without meeting the necessity requirement, the wiretap evidence must be suppressed. See Castillo-Garcia, 117 F.3d at 1185.

The application and affidavit for wiretap authorization are subject to the requirements of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and its progeny. See United States v. Lucht, 18 F.3d 541, 546 (8th Cir.1994); United States v. Ippolito, 774 F.2d 1482, 1484-85 (9th Cir.1985). In Franks, the Supreme Court held that a criminal defendant may challenge a facially sufficient affidavit for a search warrant on the ground that the police knowingly, intentionally or recklessly included false information. 438 U.S. at 155-56, 98 S.Ct. 2674. We have extended the holding of Franks to material omissions. See United States v. Kennedy, 131 F.3d 1371, 1375 (10th Cir.1997); Stewart v. Donges, 915 F.2d 572, 582 (10th Cir.1990). If a wiretap affidavit omits material information that would vitiate either the necessity or the probable cause requirements had it been included, the resultant evidence must be suppressed. Cf. Stewart, 915 F.2d at 582-83 & n. 13.

However, a district court's wiretap authorization "is presumed proper, and the defendant bears the burden of overcoming this presumption." United States Before considering issues of materiality and recklessness with respect to the affidavit at issue here, we must first assess whether the affidavit suffered from omissions. On appeal, Mr. Green contends that Agent Burns recklessly failed to mention that Kevin Robinson and Mr. Phillips, ² key members of the MSMC, were cooperating witnesses. He asserts that if the district court had known of such high-level cooperation, it could not have found that a wiretap was necessary.

v. Killingsworth, 117 F.3d 1159, 1163 (10th Cir.1997). We review the district court's factual findings for clear error and its legal rulings de novo. See United States v. Castillo-Garcia, 117 F.3d 1179, 1186 (10th Cir.1997).

The district court found after a hearing that Agent Burns was honest in his affidavit. Specifically, the court found that Mr. Robinson entered into a plea agreement in January 1995 in a case unrelated to this one. When Agent Burns filed his affidavit on June 16, 1995, he had no knowledge of Mr. Robinson's existence. He learned of "K-dog" (Mr. Robinson) sometime later, and K-dog provided some information about the drug conspiracy to law enforcement officials. They found Mr. Robinson unreliable and therefore did not consider him a cooperating witness. Indeed, he became a target of the investigation. When the government filed for an extension of the wiretap authorization on July 14, 1995, it mentioned that an unnamed witness...