U.S. v. Macklin

• Decision Date: 07 May 1990
• Docket Number: 88-2871,Nos. 88-2712--88-2714,88-2870,88-2737,88-2768,88-2767,s. 88-2712--88-2714
• Citation: 902 F.2d 1320
• Parties: UNITED STATES of America, Appellee, v. Carmell MACKLIN, Appellant. UNITED STATES of America, Appellee, v. Louzar BURNES a/k/a Candy a/k/a Smokey, Appellant. UNITED STATES of America, Appellee, v. Betty MITCHELL, Appellant. UNITED STATES of America, Appellee, v. Robert Houston WOODS, Appellant. UNITED STATES of America, Appellee, v. Terrell WILLIAMS, Appellant. UNITED STATES of America, Appellee, v. Arnold MITCHELL, Appellant. UNITED STATES of America, Appellee, v. John Alvin PAYNE, Appellant. UNITED STATES of America, Appellee, v. Stanley ROBINSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1320

902 F.2d 1320

UNITED STATES of America, Appellee, v. Carmell MACKLIN, Appellant.

UNITED STATES of America, Appellee, v. Louzar BURNES a/k/a Candy a/k/a Smokey, Appellant.

UNITED STATES of America, Appellee, v. Betty MITCHELL, Appellant.

UNITED STATES of America, Appellee, v. Robert Houston WOODS, Appellant.

UNITED STATES of America, Appellee, v. Terrell WILLIAMS, Appellant.

UNITED STATES of America, Appellee, v. Arnold MITCHELL, Appellant.

UNITED STATES of America, Appellee, v. John Alvin PAYNE, Appellant.

UNITED STATES of America, Appellee, v. Stanley ROBINSON, Appellant.

Nos. 88-2712--88-2714, 88-2737, 88-2767, 88-2768, 88-2870, 88-2871.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 16, 1990.

Decided May 7, 1990.

Rehearing and Rehearing En Banc Denied in No. 88-2737 July 6, 1990.

Rehearing and Rehearing En Banc Denied in No. 88-2712 July 10, 1990.

Richard Shreves, Austin, Tex., Mary Elizabeth Ott, Daniel P. Reardon, Jr., Robert B. Ramsey, Donald L. Wolff, Clayton, Mo., and Charles E. Kirksey, St. Louis, Mo., for appellants.

Mitchell F. Stevens, St. Louis, Mo., for appellee.

Before BOWMAN, WOLLMAN and BEAM, Circuit Judges.

BEAM, Circuit Judge.

Eight defendants appeal from their convictions for conspiracy to possess and distribute cocaine, and for other drug related offenses. On appeal, several of the defendants unite to challenge the authorization of electronic surveillance, the fruits of which were used extensively by the government at trial. The other defendants appeal on a variety of grounds. We affirm.

I. BACKGROUND

On September 30, 1987, a federal grand jury indicted fifteen persons on drug related charges stemming from their alleged involvement in a conspiracy to distribute cocaine in the St. Louis area. ¹ Count I of the thirty count indictment charged all named defendants with conspiracy to distribute cocaine from March of 1986 to March of 1987 in violation of 21 U.S.C. Sec. 841(a)(1) (1988). Counts II through XXII of the indictment charged individual defendants with specific instances of possession with intent to distribute in violation of section 841(a)(1). In addition, count XXIII charged John Alvin Payne, the principal figure in the conspiracy, with a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 (1988). Payne was also charged, together with other defendants, with conspiracy to impede the Internal Revenue Service, a violation of 18 U.S.C. Sec. 371 (1988) (count XXIV); conspiracy to launder drug proceeds in violation of 18 U.S.C. Secs. 371, 1956(a)(1)(A), 1956(a)(2) (1988) (counts XXV through XXVII); and structuring financial transactions in violation of 31 U.S.C. Sec. 5324(3) (1988) (counts XXVIII through XXX).

While John Alvin Payne's involvement in cocaine trafficking in the St. Louis area allegedly began before 1977, the indictment of September 30 covered, as indicated, only the period from March of 1986 to March of 1987. During that time, Payne was living in Los Angeles where he operated a large-scale drug operation out of the Cache Inn, a hotel he owned with his brother, Thomas E. Payne. Payne used Tarrel Williams as a courier to transport cocaine via commercial carrier from Los Angeles to St. Louis. Once in St. Louis, the cocaine was distributed to defendants Burnes, Woods, Macklin, Robinson, Arnold and Betty Mitchell, and others, for further distribution. Clara Davis, who met Payne socially in November of 1985, first became involved in the conspiracy in March of 1986, when, at Payne's direction, she met Tarrel Williams at the Northwest Inn in St. Louis following his arrival from Los Angeles with cocaine. As a confidante of Payne, Davis later became responsible for dispersing cocaine to Payne's St. Louis distributors, for collecting the proceeds from its sale, and for transferring money to Payne in Los Angeles. Partly because of her position in the conspiracy, Davis became the government's key witness at trial.

The government's 1985 and 1986 investigation of the conspiracy led to the applications for electronic surveillance on telephones used by Davis and Lee Autry Wright, who was one of Payne's biggest distributors in the St. Louis area, and who was also named in the indictment. The government sought wiretaps for three circuits. Two phone numbers were listed to Delois Williams, both for the residence at 2129 Roundtree in St. Louis, where Wright was known to reside with Williams. The government also sought a wiretap on the telephone number listed to Clara Davis, for the residence at 7449 Liberty Avenue in University City, Missouri. Surveillance on the telephones at Wright's residence began on December 9, 1986, and ended on February 8, 1987. Surveillance on the Davis telephone began on January 13, 1987, and ended on March 25, 1987. ² On March 25, 1987, Davis and Tarrel Williams were arrested at the Northwest Inn in St. Louis, where Williams went to meet Davis after he arrived from Los Angeles with ten kilograms of cocaine.

Following her arrest, Davis entered the federal witness protection program and was the government's chief witness at trial. Davis testified to the events of the conspiracy, referred to several diaries she had kept, and explained the intercepted telephone conversations, some of which were played to the jury. Because many of these conversations were brief and encoded, the government relied heavily on Davis. The government's direct examination of Davis lasted for almost three days, and cross-examination lasted another four. None of the defendants testified. ³

II. DISCUSSION

A. Electronic Surveillance

Appellants Payne and Burnes, in their joint brief, ⁴ attack the authorization of electronic surveillance. Payne and Burnes argue that: the affidavits in support of the applications for electronic surveillance do not satisfy the probable cause requirements of 18 U.S.C. Sec. 2518(3)(a), (b) (1988); that the information contained in the affidavits in support of the government's applications was stale; and that the statutory requirements of 18 U.S.C. Sec. 2518(3)(c), requiring that the government first employ normal investigative techniques before resorting to a wiretap, were not met. Appellant Macklin joins these arguments, arguing in addition that the government failed to minimize its interception of phone conversations pursuant to 18 U.S.C. Sec. 2518(5). We examine each argument in turn. ⁵

1. Probable Cause

The procedures for the authorization of electronic surveillance are found in 18 U.S.C. Sec. 2518. As to probable cause, the statute provides that a judge may authorize a wiretap upon a determination that "there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter," Id. Sec. 2518(3)(a), and that "there is probable cause for belief that particular communications concerning that offense will be obtained through such interception." Id. Sec. 2518(3)(b). Appellant Macklin argues that the affidavits in support of the government's applications for wiretaps do not provide probable cause because they are broad, speculative and conclusory. In statutory terms, Macklin argues that there was no probable cause to conclude either that he was engaged in a conspiracy to distribute cocaine, or that communications relating to the conspiracy would be intercepted. The argument of Payne and Burnes is directed solely to section 2518(3)(b), that there was no probable cause that the wiretaps would record any conversations related to the conspiracy. After a thorough and careful examination of the affidavits in support of the government's applications for surveillance, we conclude that the affidavits provided the issuing judge with more than a substantial basis to believe both that appellants were involved in a conspiracy to distribute cocaine, and that communications concerning that conspiracy would be intercepted by the wiretaps authorized.

The probable cause showing required by section 2518 for electronic surveillance does not differ from that required by the fourth amendment for a search warrant. United States v. Leisure, 844 F.2d 1347, 1354 (8th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 324, 102 L.Ed.2d 342 (1988); United States v. Townsley, 843 F.2d 1070, 1076 (8th Cir.1988). The Supreme Court has clearly delineated the standard which an issuing judge must follow in determining whether probable cause supports a warrant, as well as the duty of a reviewing court.

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). Thus, this court does not conduct a de novo review of the issuing judge's determination, but must instead afford it great deference. Id. 462 U.S. at 236, 103 S.Ct. at 2331. We do not review the affidavits in a hypertechnical manner, but rather with an eye toward a commonsense determination. Id.

These principles are well established and have been consistently followed in this circuit. See, e.g., United States v. Davis, 882 F.2d 1334, 1343 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1472, 108 L.Ed.2d 610 (1990) (totality of facts and circumstances support a reasonable belief); Townsley, 843 F.2d at 1076-77 (court should not engage in punctilious, paragraph by paragraph review of affidavits, but should look for a substantial basis for magistrate's decision); United States v....