U.S. v. Phillips

• Decision Date: 27 January 1992
• Docket Number: No. 91-3252,91-3252
• Citation: 959 F.2d 1187
• Parties: UNITED STATES of America v. Darnell PHILLIPS, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 1187

959 F.2d 1187

UNITED STATES of America v. Darnell PHILLIPS, Appellant.

No. 91-3252.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Jan. 27, 1992.

Amended Opinion March 3, 1992.

Rehearing and Rehearing En Banc Denied May 11, 1992.

William C. Carpenter, Jr., U.S. Atty., Richard G. Andrews, First Asst. U.S. Atty., Robert J. Prettyman, Asst. U.S. Atty., Wilmington, Del., for appellee.

William H. Murphy, William H. Murphy, Jr. & Associates, Baltimore, Md., for appellant.

Before: MANSMANN, HUTCHINSON and ROSENN, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal from a judgment of sentence after a jury trial, we are faced with the questions of whether the district court erred by failing to suppress evidence obtained through a court ordered wiretap, failing to grant an acquittal on Count II of

                the indictment on the basis of double jeopardy, failing to adequately charge the jury on multiple conspiracies, and, by enhancing the offense level under the Sentencing Guidelines.   Because we do not find any legal error or abuse of discretion on the part of the district court, we will affirm the judgment of conviction and order of sentence
                

I.

In February of 1990, the federal Grand Jury for the District of Delaware indicted Darnell Phillips on multiple counts ranging from conspiracy to distribute cocaine (Count I); conspiracy to use a telephone to facilitate a felony drug offense (Count II); use of a telephone to facilitate a felony drug offense (Counts IV, VIII, X, XV, XVI, XVIII, and XX) and possession with intent to distribute cocaine (Count XXI).

The indictment arose out of an investigation by Delaware State Police detectives including electronic surveillance by a court ordered wiretap. The investigation disclosed that Phillips travelled to Philadelphia approximately three to four times a month to purchase four to six ounces of cocaine which he then sold to Darryl Jarmon and his co-conspirators.

After his arraignment, Phillips, with his co-defendants, filed several motions with the district court. In particular, Phillips raised the issue that the government had failed to exhaust all investigative means before obtaining the court order for the wiretap which was placed on his co-defendant's telephone. The district court denied the defendants' motions. Phillips' co-defendants later entered guilty pleas.

After a jury trial, at which many of Phillips' co-defendants testified against him, Phillips was found guilty on all counts. He was sentenced by the district court on April 16, 1991, to 188 months incarceration, five years supervised release and a special $500 assessment. Phillips filed a timely appeal from the conviction and sentence.

II.

We review de novo the question of whether a full and complete statement of necessity for a wiretap was made in the application. Once it is determined that the statement was made, we will review the court's determination of necessity for an abuse of discretion. We have plenary review of the question of the district court's refusal to enter a judgment of acquittal as to Count II on the basis of double jeopardy since it involves a question of law. We review Phillips' challenge to the instructions on multiple conspiracies given to the jury by the district court under an abuse of discretion standard. With respect to sentencing under the Sentencing Guidelines, we will not reverse the district court's decision to enhance the offense level unless we determine that the factual finding supporting the enhancement is clearly erroneous.

III.

Phillips contends that the district court should have suppressed the contents of the wiretapped conversations because the government failed to make a full and complete statement as to whether traditional investigative techniques had been tried and failed or would be too dangerous. The statement of necessity to which Phillips refers is a statutory requirement of 18 U.S.C. § 2518(1), which provides that an application for an order authorizing the interception of communications "shall be made in writing upon oath or affirmation" and shall 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. § 2518(1).

Phillips argues that only if other investigative methods have been exhausted or would be too dangerous or impractical, should a wiretap order be granted. The government contends that this is a new theory not advanced before the district court. Our review of the record reveals that Darryl Jarmon's motion to suppress the wiretap evidence was denied on August 3, 1990 along with Phillips' motion to suppress We refuse to place as strict an interpretation on the wiretap statute as Phillips wishes. Moreover, we have reviewed the statement in the application by the government regarding the use of normal investigative procedures and note that the government believed that the use of an undercover agent would have been too dangerous due to the close association of the conspiracy's members and because the area was a small community where everyone was acquainted and outsiders would have been immediately suspect. Appendix at 785-86. Thus, we conclude that the district court did not abuse its discretion by considering the government's affidavit to be a full and complete statement of necessity.

                the evidence of the police search at the time of his arrest.   The district court treated the motion to deny the wiretap evidence as though both defendants were advancing the arguments.   Therefore, for review purposes, we will treat the issue as one having been placed before the district court
                

Phillips next argues that a judgment of acquittal should have been entered by the district court as to Count II because Count II, conspiracy to use the telephone to facilitate a felony drug offense was included in Count I, conspiracy to distribute cocaine. Phillips reasons that because two people are necessary to have a telephone conversation and two people are necessary to have a conspiracy, then Count II is duplicitous to the general conspiracy in Count I. Furthermore, Phillips argues, under Wharton's Rule, two people may not be convicted of conspiracy to commit a crime if the crime requires two people to commit it. Iannelli v. United States, 420 U.S. 770, 773-74 n. 5, 95 S.Ct. 1284, 1288 n. 5, 43 L.Ed.2d 616 (1975). Therefore, Phillips reasons, he is being exposed to multiple punishments for the same crime.

Wharton's rule provides:

An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.

1 Anderson, Wharton's Criminal Law and Procedure § 89, 191 (1957). Wharton's Rule arose in cases involving crimes such as bigamy, adultery and dueling where the immediate consequences of the crimes were felt by those involved. United States v. Bommarito, 524 F.2d 140, 144 n. 3 (2d Cir.1975).

Wharton's Rule is inapplicable to Phillips' conviction on count two for two reasons. First, Wharton's Rule does not apply where more persons than are necessary to complete the substantive offense are involved in the conspiracy. Iannelli, 420 U.S. at 782 n. 15, 95 S.Ct. at 1292 n. 15; United States v. Rueter, 536 F.2d 296, 298 (9th Cir.1976). Count two charged Phillips and four other defendants with conspiracy to use the telephone to facilitate the distribution of cocaine in violation of 21 U.S.C. § 846. The evidence at trial supported this charge with respect to the involvement of more than two participants. Thus, while only two persons are necessary to complete the substantive offense of using the telephone to facilitate the distribution of cocaine, more than two persons were involved with conspiracy to commit the substantive offense. App. at 805.

Second, Wharton's Rule "has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary." Iannelli, 420 U.S. at 782, 95 S.Ct. at 1292. At least two United States Courts of Appeals have held that Congress did not intend Wharton's Rule to apply to section 846, the conspiracy section that the indictment charged Phillips with violating, because the consequences of the conspiracy are felt by society at large. Bommarito, 524 F.2d at 144. See also United States v. Jones, 801 F.2d 304, 311 (8th Cir.1986). We agree with our sister courts of appeals that Congress did not intend Wharton's Rule to be applicable to § 846. Therefore the district court did not err in denying Phillips' motion for judgment of acquittal on Wharton Rule grounds.

Phillips next contends that the district court abused its discretion by failing

                to charge the jury with the defense's proffered charge.   We will reverse the district court's denial to charge a specific jury instruction only when the requested instruction was correct, not substantially covered by the instructions given, and was so consequential that the refusal to give the instruction was prejudicial to the defendant.   Phillips' requested charge on multiple conspiracies, rather than assisting the jury, would have confused them by its reference to numerous defendants when only one co-defendant was on trial.   Moreover, the charge given by the district court did include the most important element of Phillips' requested charge.   Indeed, the jury was instructed that it could find Phillips guilty of the conspiracies alleged in Counts I and II only if a conspiracy existed between Phillips and one other person and if he was a member of the conspiracy charged in the indictment and not some other conspiracy.   Clearly, the district court's instruction to the jury contained the essentials of the charge without unduly confusing the jury.   We find that the district court did not abuse its discretion in

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