U.S. v. Price

• Decision Date: 15 August 2005
• Docket Number: No. 03-3780.,No. 03-3884.,No. 03-3764.,03-3780.,03-3764.,03-3884.
• Citation: 418 F.3d 771
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terraun PRICE, also known as Boo Rock, Terence Dilworth, also known as T, and William J. Davison, also known as Tall One, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

418 F.3d 771

UNITED STATES of America, Plaintiff-Appellee, v. Terraun PRICE, also known as Boo Rock, Terence Dilworth, also known as T, and William J. Davison, also known as Tall One, Defendants-Appellants.

No. 03-3780.

No. 03-3764.

No. 03-3884.

United States Court of Appeals, Seventh Circuit.

Argued February 25, 2005.

Decided August 15, 2005.

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David E. Hollar (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

I. Alexander Woloshansky (argued), Merrillville, IN, Michael J. Petro, Michael J. Finn (argued), Chicago, IL, Michael W. Bosch (argued), Bamber, Bosch & Banasiak, Hammond, IN, for Defendants-Appellants.

Before BAUER, POSNER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Terence Dilworth, Terraun Price and William Davison all were convicted of drug-related offenses. They appeal their convictions and sentences on several grounds. For the reasons set forth in the following opinion, we affirm the defendants' convictions. We further order, while retaining jurisdiction, a limited remand of this case to the district court as required by United States v. Paladino, 401 F.3d 471 (7th Cir.2005).

I BACKGROUND

A. Facts

We shall set forth here a brief rendition of the facts relevant to this appeal; the facts that bear specifically on the defendants' contentions on appeal will be discussed in greater detail further below.

The defendants' convictions stemmed from a federal investigation of the illegal drug trade in Gary, Indiana. At various times, the defendants became involved in a criminal conspiracy that existed to distribute crack cocaine and other drugs in the Concord neighborhood of Gary. The conspiracy, which existed from 1994 until 2001, eventually came to be led by Bobby Suggs. See United States v. Suggs, 374 F.3d 508, 512 (7th Cir.2004). The conspiracy members trafficked in crack cocaine and other drugs near a government housing complex ("the Hill"). The defendants also were involved with Concord Affiliated ("CCA"), a rap group and a street gang associated with the well-known Vice Lords gang.

B. District Court Proceedings

Mr. Price was indicted on June 20, 2001, along with 32 other individuals. He was charged with commission of three crimes: (1) conspiracy to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846; (2) use of a telephone to facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b); and (3) possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

Mr. Dilworth and Mr. Davison were indicted on June 7, 2002, along with four other individuals. Mr. Dilworth was charged with one count of conspiracy to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846; and two counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Mr. Davison was charged with the same crimes.

The defendants' cases were consolidated for trial. During the proceedings, the Government introduced evidence to which the defendants object in this appeal; this evidence will be discussed in greater detail below. The Government also introduced the testimony of Kenneth Lewis, a resident of the Concord neighborhood. The defendants now challenge the use of Lewis' testimony on the ground that it violates the principles set forth in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

At the conclusion of the trial, the jury found Mr. Price guilty of conspiring to distribute 50 grams or more of cocaine base and using a telephone to facilitate the commission of a felony. Mr. Price was acquitted on the marijuana charge. The jury returned guilty verdicts against Mr. Dilworth on all counts against him. The jury found Mr. Davison guilty on both distribution counts against him but acquitted him on the conspiracy count.

The court sentenced the defendants believing the federal sentencing guidelines to be mandatory. The court sentenced Mr. Price to life in prison on the conspiracy count and to 48 months, to run concurrently with his life sentence, for the use of a telephone to facilitate the commission of a felony. Mr. Dilworth received a sentence of 360 months. Mr. Davison received a sentence of 360 months.

II DISCUSSION

A. Admission of Wiretap Evidence

During its investigation of the illegal drug trade in Gary, the FBI repeatedly sought the district court's permission to intercept telephone communications involving suspected members of the conspiracy. In January 2001, the FBI sought permission to extend a wiretap authorization that previously had been granted to intercept communications occurring to and from one phone number ("Target Number One"). In the same application, the FBI also sought authorization to intercept communications occurring to and from two other numbers ("Target Number Two" and "Target Number Three").¹ See 18 U.S.C. § 2518 (allowing a court to authorize interception of wire or other communications within the court's territorial jurisdiction). In an affidavit supporting the wiretap request, FBI Special Agent Anthony Riedlinger alleged that undercover agents had been unable to infiltrate the targeted conspiracy to buy drugs, that government informants had been beaten and threatened and that physical surveillance of targeted subjects had caused illegal activities to be moved elsewhere. The district court issued an order granting the FBI permission to intercept communications made to and from these three phone numbers. The recordings made pursuant to the authorized wiretaps revealed a conversation between Bobby Suggs, speaking from Target Number Three, and Mr. Price.

Before trial, Mr. Price moved to suppress the fruits of the wiretap that the district court had authorized. He alleged that "all" the communications the Government had intercepted by wiretap "were unlawfully intercepted" and that the "authorization... under which these communications were intercepted is insufficient on its face." Price's Sep.App., Tab C at 1.² The district court denied Mr. Price's motion to suppress, noting that the motion was "much too broad for the court to meaningfully evaluate it" and that it was "Price's responsibility ... [to] narrow[] the field to the communications he believes were unlawfully obtained." Price's Sep.App., Tab D at 2. The wiretap evidence was admitted at trial over Mr. Price's renewed objection. On appeal, Mr. Price contends that the FBI's application for the wiretap did not establish probable cause and did not establish necessity as required by statute.

1. Standard of Review

This court reviews de novo a district court's finding that a wiretap application established probable cause. See United States v. Dumes, 313 F.3d 372, 379 (7th Cir.2002). A district court's determination that an application established necessity for a wiretap is reviewed for abuse of discretion. See id. at 378-79.

2. 18 U.S.C. § 2518

Section 2518 of Title 18 outlines the requirements that must be met by an application to intercept wire, oral or electronic communications. First, a wiretap application must establish probable cause. See 18 U.S.C. § 2518(3)(a), (b) (court must determine that there is "probable cause for belief that an individual is committing ... a particular offense enumerated in section 2516 of this chapter" and "for belief that particular communications concerning that offense will be obtained through such interception").

A wiretap application also must establish necessity. See id. § 2518(1)(c) (application for wiretap must include a full and complete statement as to whether "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous"). Statements asserting that the necessity requirement of § 2518(1)(c) has been met should "be reviewed in a practical and commonsense fashion." United States v. Zambrana, 841 F.2d 1320, 1329 (7th Cir.1988). If the Government offers a "valid factual basis" for the necessity of a wiretap—alleging, for instance, that "informants and undercover agents could not infiltrate the drug conspiracy" or that "physical surveillance might alert the subject to the investigation"—the necessity requirement is met. United States v. Ceballos, 302 F.3d 679, 683 (7th Cir.2002); see also Dumes, 313 F.3d at 378 ("[W]e will affirm a district court's finding that normal investigative procedures are not likely to be successful as long as there was a factual predicate in the affidavit." (internal quotation omitted)).

3. The Wiretap Evidence in the Present Case

Mr. Price submits that Agent Riedlinger's affidavit did not establish probable cause because it relied on interpretations of everyday language to suggest drug activity. Mr. Price claims that this evidence would not "warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Woods v. City of Chicago, 234 F.3d 979, 996 (7th Cir.2000) (defining "probable cause"). Mr. Price also claims that Agent Riedlinger's application did not establish necessity because, he contends, the application only referred to Target Number One.

The Government asserts that probable cause was shown because Agent Riedlinger's affidavit averred that a call had been intercepted between Target Number One, for which interception already was authorized, and Target Number Three, for which a wiretap was being sought. The person using Target Number Three was Bobby Suggs, who had been identified as a suspected member of the conspiracy. The Government also submits that necessity was shown by Agent Riedlinger's detailed account in his affidavit regarding the inability of investigators to generate evidence using traditional law enforcement techniques.

On the issue of probable cause, our review of Agent Riedlinger's affidavit leads to our independent conclusion that probable cause existed with respect to Target Number Three. In particular, the...