U.S. v. Killingsworth, 96-6021

• Citation: 117 F.3d 1159
• Decision Date: 30 June 1997
• Docket Number: No. 96-6021,96-6021
• Parties: 97 CJ C.A.R. 1123 UNITED STATES of America, Plaintiff--Defendant. v. Bryan Lee KILLINGSWORTH, Defendant--Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1159

117 F.3d 1159

97 CJ C.A.R. 1123

UNITED STATES of America, Plaintiff--Defendant. v. Bryan Lee KILLINGSWORTH, Defendant--Appellant.

No. 96-6021.

United States Court of Appeals Tenth Circuit.

June 30, 1997.

Submitted on the briefs: ^*

William P. Early, Assistant Federal Public Defender, Oklahoma City, OK, for appellant.

Patrick M. Ryan, United States Attorney, Leslie M. Maye, Assistant United States Attorney, Oklahoma City, OK, for appellee.

Before BRORBY, HOLLOWAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Bryan Lee Killingsworth ("Killingsworth") appeals the denial of his motion to withdraw a guilty plea, and the denial of his motion to suppress certain evidence obtained through a telephone wiretap. Because we believe there was an adequate factual basis to support a finding of Killingsworth's guilt, and because we believe the government complied with the pertinent provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510-22 (1994 & Supp.1996), we affirm.

BACKGROUND

On May 19, 1995, a grand jury in the Western District of Oklahoma returned a 19-count indictment charging various drug and weapon offenses against Killingsworth and his co-defendant, Patrick Hackbert. Killingsworth was named in fifteen of the substantive counts and in a forfeiture count. The two counts relevant to this appeal are: Count One, under which Killingsworth was charged with conspiracy to possess with intent to distribute methylenedioxymethamphetamine ("ecstasy"), methamphetamine, and cocaine (powder) in violation of 21 U.S.C. § 846 (1994); and Count Nineteen, under which Killingsworth was charged with using or carrying a firearm in connection with a drug offense in violation of 18 U.S.C. § 924(c) (1994).

The indictments against Killingsworth were returned on May 18, 1995, after a lengthy investigation into the "Bustos Organization," a drug distribution ring operated out of Oklahoma City. The investigation was coordinated by the FBI and the Oklahoma City, Oklahoma, police. Much of the incriminating information regarding Killingsworth was gathered through wiretap surveillance of two telephone lines subscribed to by Steve Schardein and Jill Knight, two suspected members of the Bustos Organization. The wiretap was authorized by an Order issued by Judge Alley on February 17, 1995, pursuant to 18 U.S.C. § 2518 (1994).

Killingsworth moved to suppress the evidence gathered through the wiretap interceptions. In his motion, Killingsworth claimed that: (1) the government failed to show necessity In an order dated October 6, 1995, the district court denied Killingsworth's motion to suppress. Based on Agent Lotspeich's affidavit, the court concluded that the government had established that the wiretap was necessary. Specifically, the court noted that the Bustos Organization was comprised largely of family members and close friends, and thus had proven difficult to infiltrate; that previous efforts at investigation, including infiltration, interviews with organization members, pen registers, and visual surveillance, had proven unsuccessful; and that confidential sources had not been forthcoming due to fear for their personal safety. Additionally, the court rejected Killingsworth's minimization and identification arguments, noting that Judge Alley's authorization order had specifically included "others as yet unknown" who were involved in the Bustos Organization, and that the officers did not know that Killingsworth was not one of the persons named in the authorization order when they recorded his incriminating conversations.

for the surveillance; (2) the wiretap interceptions were not conducted in conformity with the authorization order; and (3) the authorization order was insufficient on its face because Killingsworth was not named as a target in the wiretap application.

On October 17, 1995, Killingsworth pled guilty to Counts One and Nineteen. As part of his plea agreement, the other charges were dismissed, and Killingsworth's plea was conditioned under Fed.R.Crim.P. 11(a)(2) upon his right to appeal the denial of his suppression motion.

On December 6, 1995, the Supreme Court decided Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In Bailey, the Court held that a person may not be convicted of having "used" a firearm in connection with a drug offence in violation of 18 U.S.C. § 924(c) unless he "actively employed the firearm during and in relation to the predicate crime." Id. at ----, 116 S.Ct. at 509. Bailey effectively overruled prior Tenth Circuit precedent, under which a § 924(c) "use" conviction could be based on evidence showing that the defendant merely had access to a firearm. See United States v. Hager, 969 F.2d 883, 888-89 (10th Cir.), cert. denied, 506 U.S. 964, 113 S.Ct. 437, 121 L.Ed.2d 357 (1992). Based on Bailey, Killingsworth filed a pre-sentence motion to withdraw his guilty plea to Count Nineteen pursuant to what is now codified as Fed.R.Crim.P. 32(e), claiming that there was no longer a factual basis supporting a finding of guilty on the § 924(c) charge.

The district court denied Killingsworth's motion, reasoning that there was sufficient evidence that Killingsworth had used his gun in connection with his drug offenses, both by displaying it while transactions took place and by employing it to intimidate people into paying their debts for drugs purchased from him. Killingsworth was then sentenced to sixty months confinement on Count One and to sixty months confinement on Count 19, to run consecutively.

Killingsworth now appeals both the denial of his motion to withdraw his guilty plea and the denial of his motion to suppress.

DISCUSSION

A. Motion to Withdraw the Plea

Fed.R.Crim.P. 32(e) provides that "[i]f a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." The defendant bears the burden of showing that a denial of a motion to withdraw a plea was not "fair and just," United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993), cert. denied, 510 U.S. 1184, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1994), and we review the denial of such a motion for an abuse of discretion. United States v. Guthrie, 64 F.3d 1510, 1513 (10th Cir.1995).

In Gordon, we outlined seven factors that courts should consider in determining whether the defendant has shown a fair and just reason for allowing withdrawal of a guilty plea: (1) whether the defendant has asserted innocence; (2) prejudice to the government if the motion is granted; (3) whether the defendant has delayed filing the motion to withdraw his plea; (4) inconvenience to the court if the motion is granted; (5) the quality of the defendant's assistance of counsel during Killingsworth's argument that there is no longer a factual basis for his conviction under § 924(c) goes to the first factor we consider under Gordon, that is, whether the defendant claims to be innocent. We note that Killingsworth does not dispute the government's version of the facts; he merely disputes whether those facts can give rise to a conviction under § 924(c).

the plea; (6) whether the plea was knowing and voluntary; and (7) the waste of judicial resources. Gordon, 4 F.3d at 1572.

We believe that Killingsworth is simply incorrect in asserting that there was no factual basis for his guilt under Bailey. As the district court discussed in its order, testimony of witness Marla Black indicated that Killingsworth kept the gun on display in his bedroom during drug transactions that were conducted there. ¹ Additionally, both co-defendant Hackbert and witness Black told Agent Lotspeich that Killingsworth used the gun to intimidate individuals who owed him money from prior drug transactions.

In Bailey, the Court explained that a defendant "uses" a firearm within the meaning of 18 U.S.C. § 924(c) when the defendant "has a gun on display during a transaction." --- U.S. at ----, 116 S.Ct. at 507. The Bailey Court also stated that " 'use' certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at ----, 116 S.Ct. at 508. Thus, Killingsworth's claim that there was not a factual basis to convict him under Bailey is simply false.

Accordingly, we hold that the district court did not abuse its discretion in denying Killingsworth's motion to withdraw his guilty plea. Because the change in the law effected by Bailey simply does not bear on Killingsworth's factual guilt or innocence, Killingsworth simply did not satisfy his burden of showing that a withdrawal of his guilty plea would be fair and just. See Guthrie, 64 F.3d at 1513. ²

B. Motion to Suppress

Killingsworth also contends that the evidence against him should be suppressed due to various alleged violations of the wiretapping statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. 18 U.S.C. §§ 2510-22 (1994 & Supp.1996) ("Title III"). Section 2515 of Title III provides that evidence derived from a wiretap shall be suppressed if that evidence was obtained unlawfully. 18 U.S.C. § 2515 (1994).

Among other provisions, Title III requires the government to make a full and complete showing that a wiretap is necessary. See Id. §§ 2518(1)(c), 2518(3)(c). It also requires that authorization orders include the identity, if known, of persons subject to the wiretap, id. § 2518(1)(b)(iv), and that the interception of communications be minimized, id. § 2518(5).

Under what is known as the "necessity requirement," an application for wiretap authorization must contain "a full and complete statement as to whether or not other investigative In United States v. Mesa-Rincon, 911 F.2d 1433 (10th Cir.1990), the legislative history of Title III was consulted for examples of the types of investigative procedures that...