U.S. v. Maxwell, s. 93-2990

Citation25 F.3d 1389
Decision Date26 May 1994
Docket NumberNos. 93-2990,93-2992,93-3053,93-3183,93-3057,s. 93-2990
PartiesUNITED STATES of America, Appellee, v. Delano Eugene MAXWELL, Appellant. UNITED STATES of America, Appellee, v. Hassan MAJIED, Appellant. American Civil Liberties Union; Nebraska Civil Liberties Union; National Association of Criminal Defense Lawyers, Amicus on Behalf of Appellant. UNITED STATES of America, Appellee, v. Chester DAVIS, Appellant. UNITED STATES of America, Appellee, v. Martin LEWIS, Appellant. UNITED STATES of America, Appellant, v. Delano Eugene MAXWELL, Appellee, v. UNITED STATES of America, Appellant, v. Hassan MAJIED, Appellee. UNITED STATES of America, Appellant, v. Martin LEWIS, Appellee. American Civil Liberties Union; Nebraska Civil Liberties Union; National Association of Criminal Defense Lawyers, Amicus on Behalf of Appellee. United States of America, Appellant, v. Chester Davis, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Alan G. Stoler, Omaha, NE, argued (William L. Kutmus, Des Moines, IA, on the brief, for appellant Maxwell; Alan G. Stoler, Omaha, NE, on the brief, for appellant Majied), for appellants Delano Maxwell and Hassan Majied.

Brent M. Bloom, Omaha, NE, on the brief, for appellant Martin Lewis.

W. Russell Bowie, Omaha, NE, on the brief, for appellant Chester Davis.

Victor A. Bolden, Christopher A. Hansen, New York City, for amicus curiae, American Civ. Liberties Union Foundation; Lawrence J. Fleming, St. Louis, MO, for amicus curiae, Nat. Ass'n of Crim. Defense Lawyers; Dorothy Walker, for amicus curiae, Nebraska Civ. Liberties Union; on the brief, for appellant Hassan Majied.

William W. Mickle, Omaha, NE, argued (Thomas J. Monaghan, William W. Mickle, II and Daniel A. Morris, on the brief), for appellee U.S.

Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.

WOLLMAN, Circuit Judge.

Chester Davis, Martin Lewis, Hassan Majied, and Delano Maxwell ("the defendants") appeal their convictions and sentences for drug-related offenses. The government cross appeals the district court's downward departure from the applicable sentencing ranges. We affirm the convictions, vacate the sentences, and remand to the district court for resentencing.

I. Background

On September 22, 1989, Luther Bass telephoned Omaha Police Division Narcotics Officer Bruce Ferrell, telling Ferrell that some of Bass's friends who were selling cocaine had attempted to entice him to sell cocaine with them. Three days later, Bass met with Ferrell and identified to Ferrell the individuals whom Bass suspected of distributing cocaine. Based upon the information that Bass provided, officers began an investigation. Bass agreed to cooperate in the investigation by making controlled purchases of cocaine from the suspects and having conversations with them, which officers recorded. As part of the investigation, officers also conducted physical surveillance and installed pen registers on the suspects' telephones. A state court judge signed an order authorizing officers to intercept conversations over Majied's telephone. Officers used the intercepted telephone conversations as well as other information that they had obtained during their investigation to prepare applications for warrants to search the suspects' residences. The warrants were executed on December 19, 1989.

During their investigation, officers discovered that various individuals, including Lewis and Davis, were selling cocaine base in the vicinity of an Omaha housing project. Majied supplied these individuals with the cocaine, and Maxwell, who lived in Des Moines, Iowa, was Majied's source of cocaine.

The defendants were indicted for conspiring to distribute and possess with intent to distribute cocaine or a substance or mixture which contained cocaine base ("crack cocaine"), in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and for various substantive crimes committed in furtherance of the conspiracy. Jason Calvert and Kelvin Moore were also charged in the indictment. They entered into plea agreements with the government and testified at the defendants' trial.

The defendants raise numerous issues on appeal, including the district court's denial of motions to suppress evidence and the sufficiency of the evidence supporting their convictions. They also challenge on various grounds the sentences that the district court imposed.

II. Suppression Issues
A. Wiretap Evidence

The defendants contend that the district court erred in refusing to suppress the evidence obtained from the wiretap placed on Majied's phone. They first argue that the evidence should have been suppressed because the wiretap recordings were not sealed immediately upon termination of the authorization.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510-2520, sets forth the procedures that law enforcement officers are to follow when using electronic surveillance, including wiretaps, during the course of an investigation. Section 2518(8)(a) requires that "[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions." If the recordings are not sealed immediately and the government cannot provide a satisfactory explanation for the delay, the contents of the recordings and all of the evidence derived therefrom must be suppressed. United States v. Feiste, 961 F.2d 1349, 1350 (8th Cir.1992) (quoting 18 U.S.C. Sec. 2518(8)(a)). To provide a satisfactory explanation, the government must explain not only why a delay in sealing occurred but also why the delay is excusable. United States v. Ojeda Rios, 495 U.S. 257, 264, 110 S.Ct. 1845, 1850, 109 L.Ed.2d 224 (1990).

Pursuant to Title III, law enforcement officers presented to a judge an affidavit and application for authorization to intercept telephone conversations over Majied's telephone, and the judge signed an order authorizing the wiretap. On December 21, 1989, the issuing judge signed an order terminating the authorization. The wiretap recordings were sealed on December 28, 1989. The defendants argue that the district court should have granted their motion to suppress because the government did not adequately explain the seven-day delay in sealing. The district court, however, found that the government had offered a satisfactory explanation: the issuing judge's schedule. We review the district court's factual findings on a motion to suppress for clear error. United States v. Sawyers, 963 F.2d 157, 159 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 619, 121 L.Ed.2d 552 (1992). Whether the government's explanation is satisfactory is a question of law that we review de novo. Id.

Having reviewed the record, we conclude that the district court's finding that it was the issuing judge rather than the government who specified the date for sealing is not clearly erroneous. On December 21, 1989, the same day that the authorization was terminated, the member of the Douglas County Attorney's office who was responsible for the wiretaps requested that the issuing judge set a date for sealing, and the judge chose December 28, 1989. In addition to conflicts in his schedule, the judge had to consider the 1989 Christmas holiday as well as an intervening weekend. Intervening weekends, holidays, and the unavailability of the issuing judge are satisfactory explanations for slight delays in presenting wiretap recordings for sealing. See, e.g., United States v. Pedroni, 958 F.2d 262, 266 (9th Cir.1992) (issuing judge's unavailability and decision when to schedule sealing constitute a satisfactory explanation); United States v. Ardito, 782 F.2d 358, 362-63 (2d Cir.) (two-day intervening holiday, unavailability of issuing judge, and need to prepare paperwork provided adequate explanation for five-day delay), cert. denied, 475 U.S. 1141, 106 S.Ct. 1792, 90 L.Ed.2d 338, and, 476 U.S. 1160, 106 S.Ct. 2281, 90 L.Ed.2d 723 (1986). Accordingly, the district court properly overruled the defendants' motion to suppress on the ground that the government did not adequately explain the delay in sealing the wiretap recordings.

The defendants also argue that the wiretap evidence should have been suppressed because the application did not establish that other investigative techniques had been unsuccessful. Title III requires that applications for electronic surveillance include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. Sec. 2518(1)(c). "Whether the statutory requirement is met is to be determined by the issuing judge in a commonsense manner, and the determination is a finding of fact, which can be reversed only if clearly erroneous." United States v. Macklin, 902 F.2d 1320, 1327 (8th Cir.1990), cert. denied, 498 U.S. 1031, 111 S.Ct. 689, 112 L.Ed.2d 680 (1991).

Section 2518(1)(c) requires a showing of necessity "to insure that wiretaps are not routinely employed as the initial step in an investigation." Id. at 1326. The comprehensive affidavit accompanying the wiretap application explained various investigative techniques that officers had used during the two-month period between Bass's call to Ferrell and the wiretap application. For example, Bass cooperated with law enforcement officers, providing them with information and attempting to make controlled drug purchases from the suspects. Officers conducted physical surveillance of the individuals whom Bass had identified and placed pen registers on their telephones. As the defendants point out, some of the investigative techniques provided the officers with useful information. Even if conventional techniques have been somewhat successful, however, a wiretap may still be authorized. United States v. O'Connell, 841 F.2d 1408, 1415 (8th Cir.), cert....

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