U.S. v. Reed

• Citation: 575 F.3d 900
• Decision Date: 04 August 2009
• Docket Number: No. 06-50302.,No. 06-50048.,No. 06-50040.,06-50040.,06-50048.,06-50302.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodrick Cardale REED, aka Boulevard, Li'l Rod, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. George Williams, a/k/a Jimmy Williams, George June, George Wilson and James Williams, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Richard Darnell Johnson, a/k/a Richard Johnson, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

575 F.3d 900

UNITED STATES of America, Plaintiff-Appellee, v. Rodrick Cardale REED, aka Boulevard, Li'l Rod, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. George Williams, a/k/a Jimmy Williams, George June, George Wilson and James Williams, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Richard Darnell Johnson, a/k/a Richard Johnson, Defendant-Appellant.

No. 06-50040.

No. 06-50048.

No. 06-50302.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 24, 2008.

Filed August 4, 2009.

Joseph T. Vodnoy of Los Angeles, CA, for defendant-appellant, Rodrick Cardale Reed.

Alissa Sawano Peterson of Irvine, CA, for defendant-appellant, Richard Darnell Johnson.

Robinson D. Harley, Jr. of Santa Ana, CA, for defendant-appellant, George Williams.

Shannon P. Ryan, Assistant United States Attorney for the Central District of California, Los Angeles, CA, for appellee, United States of America.

Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. Nos. CR-03-00084-VAP-1, CR-03-00084-VAP-24, CR-03-00084-VAP-10.

Before: HARRY PREGERSON, CYNTHIA HOLCOMB HALL, and N. RANDY SMITH, Circuit Judges.

N.R. SMITH, Circuit Judge:

Rodrick Reed (Case No. 06-50040), George Williams (Case No. 06-50048), and Richard Johnson (Case No. 06-50302) appeal their convictions and sentences following a jury trial. Each Appellant was convicted of conspiracy crimes involving the manufacture and distribution of phenylcyclo-hexylpiperidine ("PCP"). Reed was also convicted of conspiracy to possess firearm silencers. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm the judgment of the district court and affirm the convictions and sentences of each Appellant.¹

Reed, Williams, and Johnson primarily assert that the district court erred in denying their motion to suppress wiretap evidence for Target Telephone No. 10 ("TT10"). In affirming their convictions, we hold (1) that the Government's wiretap application satisfied the necessity requirement; (2) the district court did not err in finding that the Government had not intercepted telephone calls on a line for which there was no court order; (3) the Government was not required to seal call data content ("CDC") and it timely sealed the wiretap recordings under § 2518(8);² and (4) the Government did not violate the statutory wiretap monitoring requirements of § 2518(5). Appellants raise additional issues regarding access to an expert witness (Reed), destruction of witness interview notes (Williams and Johnson), admission of expert testimony regarding "drug jargon" (Johnson), sufficiency of the evidence (Williams), adequacy of jury instructions (Williams), and admission of prior felonies for sentencing (Williams). We affirm the district court on each of these issues.

FACTUAL BACKGROUND

Appellants' convictions arise from the Government's investigation of a PCP manufacturing and distribution operation in central California. In May 2002, the Government acquired information from an informant that Reed and others were manufacturing and distributing PCP. In November 2002, the informant communicated with Reed and his associate, Kim Stinson, about purchasing PCP. Reed made arrangements for the sale. In February 2003 (under law enforcement surveillance), the informant purchased a half gallon of PCP from Reed's associate, Anthony Piggue.

I. Adelanto Drug Lab.

On March 21, 2003, local law enforcement discovered a PCP drug lab near Adelanto, California. At the lab, officers seized full-face respirators and various containers, containing about four pounds of crystalline PCP, and other chemicals used in manufacturing PCP. In a white van at the lab, officers found documents connecting the van to Reed, Stinson, and Henry-Henderson. A receipt in the van showed Stinson's address on Lorraine Place, Rialto, California ("Lorraine residence").

II. Federal Wiretap.

Marvin McCaleb was supplying PCP precursor chemicals to Reed. While monitoring a telephone used by McCaleb, agents intercepted numerous calls made to McCaleb from Reed discussing PCP manufacturing. These calls originated from a telephone (TT10) subscribed to Terry Jackson. On April 4, 2003, the Government received a federal wiretap order for TT10 and began recording conversations confirming that Reed and his associates were manufacturing and distributing PCP and had firearms.

On April 8, 2003, the Government submitted an interim report to the authorizing judge. The Government informed the court that, although TT10 was used by Reed, within the first few hours of interception it became clear that TT10 was primarily used by Terry Jackson. Still, the Government had clear evidence that TT10 was being used in the furtherance of the PCP conspiracy. Upon filing an interim report with the court, the Government received permission to continue the wiretap of TT10.

III. Calls Intercepted on TT10 Provide Additional Evidence of PCP Operations.

Among the calls intercepted on TT10, agents recorded an April 6, 2003 call between Stinson and Appellant Williams, in which Williams stated that he was lining up some out of state PCP purchasers for Reed.

On April 13, 2003, the Government intercepted calls involving Reed, Jackson, and Benjamin Beal, indicating that they were preparing to manufacture more PCP. Government agents watched the Lorraine residence and observed Reed directing others to load the white van with orange buckets and red canisters and handling a respirator. When the van departed the residence, the California Highway Patrol ("CHP") conducted a traffic stop where officers smelled strong chemical odors upon approaching the van and observed the buckets and canisters. Johnson was driving the van and told the CHP officer that the chemicals were used for carpet cleaning. After a hazmat team responded to the scene, it was determined that all of the chemicals and equipment related to the manufacture of PCP. In addition, the van contained 26.1 kilograms of PCP in crystalline form.

Two days after the van stop and seizure, Reed used TT10 to speak with several of his associates. Reed informed them of the seizure and directed them regarding future PCP manufacturing. Shortly after that call, Reed called Williams and discussed the van seizure and described his plans to make "grignard," a chemical reagent used in making PCP. Williams asked Reed about his plan, and counseled him on how to avoid law enforcement. Later that same day, Reed told another associate that the van had chemicals worth about $100,000, capable of making 150 to 200 gallons of PCP, worth a street value of about $2 million.

Later that month, deputies went to the Lorraine residence to further investigate the seizure of the white van. Deputies apprehended Reed and Jackson and questioned them about the white van. Stinson, cooperating with the Government, later testified that the white van belonged to Reed.

By May 2003, Reed was again manufacturing PCP. On May 13 and 14, Reed communicated with two other co-defendants about the manufacturing operation. Sheriff's deputies later found five gallons of PCP buried underground on property owned by the father of one of these co-defendants.

IV. The Arrests.

On July 10, 2003, federal agents executed a series of search and arrest warrants for Reed and his co-defendants, arresting Reed at the Lorraine residence and retrieving $17,000 in cash in the trunk of a car at the residence.

An apartment shared by Johnson and Jackson was also searched. During the search, officers found documents in Johnson's name and a container containing trace amounts of PCP in Johnson's closet. Agents also searched the apartment belonging to Reed's girlfriend, where they located two 9mm firearms with attached silencers.

V. The Indictments.

On June 3, 2004, a federal grand jury returned a nine-count indictment charging more than twenty defendants, including Appellants, with drug and firearms violations. Count one charged each defendant with a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(c)(2), and 846 as well as 18 U.S.C. § 2 (conspiracy to manufacture, aid and abet the manufacture, possess with intent to distribute, and distribute more than 100 grams of PCP); count two charged Reed with a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2 (aiding and abetting the distribution of 100 grams or more of PCP); count three charged Reed and Johnson with a violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2 (attempting and aiding and abetting the manufacture of 100 grams or more of PCP); count seven charged defendant Reed with a violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm); and count nine charged Reed with a violation of 18 U.S.C. § 371 and 26 U.S.C. § 5861 (conspiracy to possess unregistered firearm silencers).³

VI. The Motions To Suppress.

On July 8, 2004, Reed filed a motion to suppress the wiretap evidence recorded for TT10 and all derivative evidence. Reed argued that (1) the wiretap should have ceased when it was discovered that Terry Jackson was the primary user of the phone; (2) the wiretap was not properly sealed within two days under 18 U.S.C. § 2518(8)(a); and (3) the wiretap application failed to satisfy the necessity requirement. After a hearing on October 19, 2004, the court issued a written order denying the motion. Instead, the court found that the probable cause requirements were met in the original application. Further, given the traditional law enforcement techniques already employed and the nature of the conspiracy being investigated, the Government had shown necessity for the wiretaps. The district court also found that the Government complied with all statutory sealing requirements.

During the October 19, 2004 hearing on the first motion to suppress, Reed's attorney...