U.S. v. Savaiano

• Decision Date: 30 March 1988
• Docket Number: Nos. 86-2530,86-2507,s. 86-2530
• Parties: 25 Fed. R. Evid. Serv. 725 UNITED STATES of America, Plaintiff/Appellee, v. Gary SAVAIANO, and Gary McPherson, Defendants/Appellants. and Bill Crummey, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1280

843 F.2d 1280

25 Fed. R. Evid. Serv. 725

UNITED STATES of America, Plaintiff/Appellee, v. Gary SAVAIANO, and Gary McPherson, Defendants/Appellants and Bill Crummey, Defendant.

Nos. 86-2530, 86-2507.

United States Court of Appeals Tenth Circuit.

March 30, 1988.

Kurt J. Shernuk, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., and Leon J. Patton, Asst. U.S. Atty., with him on the briefs), Topeka, Kan., for plaintiff-appellee, U.S.

Jerold E. Berger, Topeka Kan., for defendant-appellant, Gary Savaiano.

John C. Humpage, Topeka, Kan., for defendant-appellant, Gary McPherson.

Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and ALLEY, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Appellants, Gary McPherson and Gary Savaiano, were each found guilty by a jury, and convicted on six counts of a superseding indictment charging conspiracy to manufacture amphetamine, using a telephone to facilitate the conspiracy, and attempt to manufacture amphetamine, in violation of 21 U.S.C. Secs. 846, 841(a)(1) and 843(b). McPherson was found guilty of an additional count under 21 U.S.C. Sec. 843(b). The evidence against the defendants consisted primarily of court authorized recordings made by the Topeka, Kansas Police Department pursuant to a wiretap of McPherson's residential telephone over a twelve day period in 1985, and evidence obtained as a result of those recordings.

The separate appeals of these defendants have been consolidated because of the similarity of many of the issues raised on appeal. McPherson contends that the evidence was inadmissible because it was gathered in violation of the Fourth Amendment, Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. Sec. 2510, et seq., and the Kansas Electronic Surveillance Act, Kan.Stat.Ann., 22-2514, et seq. He also alleges a statutory violation of Kan.Stat.Ann. Sec. 22-2516(7)(d) by virtue of the government's failure to timely furnish him the inventory required by law. Five Savaiano contends that the intercepted conversations and associated evidence must be suppressed because the pertinent conversations relating to conspiracy and attempt to manufacture amphetamine were outside the scope of the order permitting the wiretap and post-interception judicial approval was not obtained; he also alleges that the crimes charged are not covered by the Kansas Wiretap Statute because they are not a felony. He contends further that suppression is required because the inventory required by Kan.Stat.Ann. Sec. 22-2516(7)(d) was not served. He raises three additional issues: whether the district court erred in refusing to sever Savaiano's case from those of his co-defendants for purposes of trial; whether it was error to sentence him for both attempt and conspiracy when both offenses arose from the same conduct; and whether the evidence was insufficient to prove an overt act in either of the offenses charged. We affirm.

additional issues are raised by McPherson on appeal: failure of the district court to consider whether two automobiles seized by the government should be returned; multiplicity of counts I and VII of the indictment; error in admitting the government's Exhibit 9 into evidence; insufficiency of the evidence to prove either conspiracy or attempt; and, an allegedly unconstitutional broadening of the superseding indictment.

I. BACKGROUND

On November 8, 1985, pursuant to an application by Gene M. Olander, the District Attorney of Shawnee County, Kansas, the District Court of Shawnee County issued an order authorizing a wiretap of McPherson's residential telephone. The application for the order was made pursuant to Kan.Stat.Ann. Sec. 22-2516, and included as applicants, in addition to District Attorney Olander, Sgt. Ed White and Lt. James Gilchrist of the Topeka Police Department. It was based on information provided by Officers White and Gilchrist, other officers of the Topeka Police Department, members of the Kansas Bureau of Investigation ("KBI"), and officers of the Shawnee County Sheriff's Department. The stated purpose of the application was to intercept communications of McPherson and others, "including co-conspirators, accomplices and criminal agents concerning the crimes of possession of marijuana with intent to sell, sale of marijuana, felony theft and conspiracy to commit the same...." R. Vol. I doc. 22, Ex. A. p. 1.

Sworn testimony, including affidavits, by Officers Gilchrist and White, and testimony from William Dickerson (also of the Topeka Police Department) established the following facts. McPherson had been under investigation by state law enforcement agencies since June 1985, initially in connection with allegations of dealing in stolen property. The KBI, Shawnee County Sheriff's Office, and Topeka Police Department undertook a joint effort in June to pursue the investigation. In July 1985, a confidential informant, fitted with a transmitter, took a television set supplied by the police department to McPherson's house where the set was offered to McPherson as stolen property. McPherson received the set and paid for it with 130 grams of marijuana. Other transactions involving allegedly stolen property occurred in August, September, and October 1985. McPherson delivered one pound of marijuana to the confidential informant's house in October 1985, for property and $200. McPherson also offered to sell marijuana to the informant for $300 per pound for a minimum purchase of ten pounds.

On October 8, 1985, the sheriff's department and Topeka Police Department established a surveillance of McPherson's residence from some distance away. Plastic bags believed to contain marijuana were observed, among other items, being transported to and from the house.

On October 1, 1985, the police obtained a court order permitting the installation of a pen register on McPherson's telephone, and a trap and trace order. In the period commencing October 15, 1985 and ending November 6, 1985, there were 1,045 telephone calls. Pleading R.Vol. II doc. 47, Testimony of William M. Dickerson. Of sixty-seven individuals checked, who were subscribers Sworn testimony also established why other investigative techniques were inadequate at that point, and why a wiretap to listen to and record the telephone conversations was necessary.

to traced numbers, forty-four had criminal records. One of those individuals selected at random, and identified to the court, had an extensive criminal record. He had forty-six telephone contacts involving the McPherson telephone during the period in question.

A wiretap was authorized by a November 8 order and installed on November 12, 1985. Trial R.Vol. IV at 24, 25. The next day, based on a further application by the district attorney, supported by sworn testimony concerning intercepted conversations, the wiretap order was amended to include additional individuals and "the crimes of possession of cocaine and methamphetamine, possession of cocaine and methamphetamine with intent to sell, sale of cocaine and methamphetamine and conspiracy to commit said crimes." Pleading R.Vol. I doc. 22, Ex. D at 1-2. Among other conversations supporting the affidavit, conversations had been intercepted on November 12 and 13 discussing KBI investigations into drugs (McPherson: "[O]nly thing I know anything on's coke ya know."), a transaction for a quarter ounce of "crank" (McPherson: "[I]'d let you have it for like five."), and a continuing transaction which involved purity of a drug to be sold (McPherson: "[A]nybody that comes after any I want them to do a line and be happy." "Well you ought to come on over and just try this, and if you want it I'll weigh it out for you and take it and pay me tomorrow night."). Ex. 55, conversations no. 34, 111, 112, 115. Six days later, on November 19, 1985, again upon application and sworn testimony, the wiretap order was further amended to include an additional individual, and a restated and enlarged statement of goals and objectives of the investigation. The amended goals and objectives statement broadly addressed the subjects of stolen property, marijuana, and methamphetamine. The topic of methamphetamine covered supply of ingredients, formula for manufacture, manufacture, laboratory location, possession, storage, distribution, sale, and conspiracy and participation in those matters.

The interception of telephone calls terminated on November 23, 1985, after it appeared the wiretap had been discovered. Warrants were obtained and McPherson was arrested. Between November 12 and November 23 more than 700 telephone contacts had been made to and from McPherson's telephone. Trial R.Vol. V at 289-90. Included were conversations relating to transactions involving "crystal" or "crank." Later testimony established that those were terms referring variously to methamphetamine and amphetamine. Trial R.Vol. IV at 203, 205, 206; Pleading R.Vol. II doc. 47, testimony of James Gilchrist, Nov. 13, 1985, p. 7-8. Conversations also included marijuana and cocaine transactions. Purchase, possession and sale of crystal or crank, marijuana, and cocaine were implicated. The conversations directly pertinent to this case involved McPherson's brother Larry, attorney Gary Savaiano, and Bill Crummey, co-owner of a chemical distribution business named Chemco Industries, Inc.

On November 15, 1985, in a conversation between McPherson and his brother Larry, McPherson stated in substance that he had paid $12,000 for a recipe which would yield "about $100,000 worth" in two weeks time, but that it "takes a little time to get her set up." Ex. 55, conversation no. 177. In a series of conversations between McPherson and Gary Savaiano during the period of November 15 to November 20, 1985, Savaiano discussed producing a chemist who would be paid $1,000 cash to meet on a no-names basis with McPherson and "lay it out for him in black and white." Ex. 55, conversation no. 336, and conversations 161, 275, 438, and 474. Trial...