U.S. v. Milton

• Decision Date: 14 October 1998
• Docket Number: Nos. 98-1168,98-1170 and 98-1214,98-1169,s. 98-1168
• Citation: 1998 WL 518484,153 F.3d 891
• Parties: UNITED STATES, Plaintiff-Appellee, v. Leon Delmar MILTON, etc., Lydia Gajewski, etc., Jeffrey Sean Mitchell, etc., and Ernest Thornton, etc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 891

153 F.3d 891

UNITED STATES, Plaintiff-Appellee, v. Leon Delmar MILTON, etc., Lydia Gajewski, etc., Jeffrey Sean Mitchell, etc., and Ernest Thornton, etc Defendants-Appellants.

Nos. 98-1168, 98-1169, 98-1170 and 98-1214.

United States Court of Appeals,

Eighth Circuit.

Submitted June 8, 1998.

Decided Aug. 24, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 14, 1998.

Alan G. Stoler, Omaha, NE, argued, for appellants Milton, Gajewski and Thornton.

W. Russell Bowie, Omaha, NE, argued, for appellant Mitchell.

Nancy A. Svoboda, Assistant U.S. Attorney, Omaha, NE, argued, for appellee.

Before LOKEN, Circuit Judge, and GODBOLD ¹ and HEANEY, Senior Circuit Judges.

GODBOLD, Senior Circuit Judge:

Defendants Leon Delmar Milton, Lydia Gajewski, Jeffrey Mitchell, and Ernest Thornton were convicted of conspiracy to possess with intent to distribute and conspiracy to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) & 846 in the United States District Court for the District of Nebraska. They appeal their convictions, contending that the district court erred in denying their motion to suppress evidence and in denying their motion for a Franks hearing. Leon Milton and Jeffrey Mitchell also appeal their sentences.

I. Background

On December 22, 1995, federal agent William Nellis submitted an affidavit to the district court applying for an order authorizing the interception of wire communications over a telephone number that the FBI suspected was being used to conduct drug transactions in Omaha, Nebraska. The application for a wiretap was part of an investigation into the activities of suspected drug dealers in the Omaha vicinity. The investigation was initiated after the agents received tips from a paid informant claiming to have knowledge of illegal drug activity.

The order authorizing a thirty day interception was granted and the wiretapping began on December 26. A thirty day extension was granted on January 26, 1996. Federal agents intercepted numerous phone calls from the wiretapped residence. Presented with these calls as evidence, a federal grand jury returned an indictment against the four defendants in this case, as well as several other individuals who are not parties to this appeal.

The defendants moved the district court to disclose the identity of the informant upon whom the affidavit relied and to suppress the evidence derived from the interception of the wire communications. The defendants asserted that the Nellis affidavit did not support a finding of probable cause and did not make a showing of necessity as required by 18 U.S.C. § 2518(3)(a)-(d), which authorizes wiretapping by federal officials in some circumstances. The defendants also attacked the veracity of the Nellis affidavit and requested a Franks hearing to determine whether federal agents had recklessly disregarded the truth in preparing the affidavit. The district court denied all of these motions.

The defendants then entered conditional pleas of guilty and were sentenced: Milton to 360 months, Mitchell to 292 months, Thornton to 136 months and Gajewski to 120 months. This appeal followed.

II. Discussion

All defendants contest the Nellis affidavit and order allowing the wiretap and some contest aspects of their sentences.

A. Probable Cause

The probable cause required for allowing electronic interception of wire communications is the same as that required by the Fourth Amendment for a search warrant. See U.S. v. Macklin, 902 F.2d 1320, 1324 (8th Cir.1990); U.S. v. Leisure, 844 F.2d 1347, 1354 (8th Cir.1988). Our duty as the reviewing court is only to ascertain that the district judge issuing the order had a "substantial basis for ... conclud[ing]" that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). To that end we must determine that the affidavit included facts that would allow the issuing judge to believe (1) that an individual had committed or was about to commit a particular offense, (2) that communication relating to that offense would be intercepted, and (3) that the residence was being used in connection with that offense or was commonly used by those whose communications were to be intercepted. See Leisure, 844 F.2d at 1354 (citing Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520.). In determining probable cause we are bound to consider only the facts contained within the four corners of the affidavit. ² U.S. v. Gladney, 48 F.3d 309, 312 (8th Cir.1995).

The Nellis affidavit was primarily based on the statements of a confidential informant, referred to by the affidavit as Source One. The affidavit explained that Source One had cooperated with federal agents on previous occasions and that the information provided by Source One had led to numerous arrest and convictions. Source One described many instances of drug activity at the house where the wiretap was to be administered. Source One named individuals involved and described conversations that she was a party to or overheard which detailed drug transactions and shipments. Some of the conversations described concerning drug shipments and transactions occurred over the phone line that was to be tapped. The affidavit stated that Source One had personally observed one of the suspects with cocaine and that she had seen two females pick up an amount of cocaine or crack from the residence where the wiretap was to be installed.

The affidavit contained information from three other sources as well. These other sources provided information regarding members of the conspiracy and indicating that these members were involved in the illegal drug trade. Agent Nellis also included in the affidavit the phone numbers and pager numbers of several members of the alleged conspiracy. He reported pen registers that showed that calls were made from the residence to be tapped to each of the members of the conspiracy.

This evidence was sufficient for the issuing district judge to find probable cause to believe that the individuals in question were committing crimes, that the residence to be tapped was being used to commit the crimes and that communications relating to the offenses would be intercepted by the wiretap. We find no error in the district court's order denying the defendant's motion for suppression of the wiretap evidence based on a lack of probable cause.

B. Necessity

The defendants also sought to suppress the wiretap evidence on the ground that the order granting the application for interception failed to meet the requirements for wiretaps set out in 18 U.S.C. § 2518(3). This statute allows a judge to enter an order allowing a wiretap where the following conditions are met:

(a) 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;

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;

(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d) ... there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

18 U.S.C. § 2518(3)(a)-(d). Defendants contend that the affidavit was deficient because it did not sufficiently describe the traditional investigative procedures previously tried and why these procedures failed, making the wiretap necessary.

The affidavit describes traditional investigative techniques and explains why these techniques do not normally prove successful when targeting drug conspiracies. Most of the assertions would be true in any drug investigation. The reasons given include witnesses' fear in answering questions and propensity of individuals to plead the Fifth; the fact that normal surveillance only exposes meetings between individuals, leaving agents to guess at the purpose of the meetings; the residential nature of the neighborhood precludes agents from remaining near the suspicious residence; and that phone records only reveal that conversations between individuals took place but do not reveal the nature of the conversations. The only reason given that was specific to this particular investigation was that the suspects kept the trash container for the residence on the front porch, making it impossible for agents to search the garbage.

Although some of these assertions might appear boilerplate, the fact that drug investigations suffer from common investigatory problems does not make these problems less vexing. Drug crime is necessarily harder to detect than other crimes because it is difficult to witness and does not create victims who are compelled to come forward and report the crime. Furthermore, agents preparing the affidavits supporting applications for electronic surveillance are not required to exhaust "all possible investigative techniques" before a court can issue an order authorizing interception of wire communications. U.S. v. Falls, 34 F.3d 674, 682 (8th Cir.1994). The necessity prong of § 2518(3)(c) is a finding of fact subject to a clearly erroneous standard of review. See U.S. v. Davis, 882 F.2d 1334, 1343 (8th Cir.1989). We find no error in the district court's refusal to suppress the wiretap evidence based on a lack of necessity.

C. Veracity of the Affidavit

Although we find that the affidavit supporting the wiretap order is facially sufficient, a defendant may challenge an affidavit on the ground that the police included deliberate or reckless falsehoods under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), or deliberately or...