U.S. v. Shaw, s. 95-3069

• Decision Date: 23 August 1996
• Docket Number: 94-3096,95-3177 and 95-4164,95-3094,Nos. 95-3069,s. 95-3069
• Parties: UNITED STATES of America, Appellee, v. Kenneth Michael SHAW, Appellant. UNITED STATES of America, Appellee, v. Jeffrey Lane BARNES, Appellant. UNITED STATES of America, Appellee, v. Tina Mariam SCOTT, Appellant. UNITED STATES of America, Appellee, v. Alphonso Ray TUCKER, also known as Chopper, Appellant. UNITED STATES of America, Appellee, v. Robert Lee SLATER, Jr., also known as Rob, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 438

94 F.3d 438

UNITED STATES of America, Appellee, v. Kenneth Michael SHAW, Appellant.

UNITED STATES of America, Appellee, v. Jeffrey Lane BARNES, Appellant.

UNITED STATES of America, Appellee, v. Tina Mariam SCOTT, Appellant.

UNITED STATES of America, Appellee, v. Alphonso Ray TUCKER, also known as Chopper, Appellant.

UNITED STATES of America, Appellee, v. Robert Lee SLATER, Jr., also known as Rob, Appellant.

Nos. 95-3069, 95-3094, 94-3096, 95-3177 and 95-4164.

United States Court of Appeals,

Eighth Circuit.

Submitted June 11, 1996.

Decided Aug. 23, 1996.

Rehearing Denied in No. 95-3094

Oct. 1, 1996.

Raymond A. Wood, St. Paul, MN, argued, for appellant Kenneth Michael Shaw.

Douglas Peine, St. Paul, MN, argued, for appellant Jeffrey Lane Barnes.

Paul C. Engh, Minneapolis, MN, argued, for appellant Tina Mariam Scott.

Mark D. Nyvold, St. Paul, MN, argued, for appellant Alphonso Ray Tucker.

Glenn P. Bruder, Minneapolis, MN, argued, for appellant Robert Lee Slater.

Jeffrey S. Paulsen, Minneapolis, MN, argued (David L. Lillehaug, on the brief), for appellee.

Before BEAM and HEANEY, Circuit Judges, and BOGUE, ¹ District Judge.

HEANEY, Circuit Judge.

I.

The appellants' convictions stem from an extensive investigation by state and federal law enforcement agencies into the criminal activities of Jeffrey Lane Barnes, Kenneth Jones, and others who authorities believed were responsible for a major drug distribution operation and several drug-related murders. On May 23, 1995, Barnes, Tina Mariam Scott, Alphonso Ray Tucker, Kenneth Michael Shaw, and Robert Lee Slater, Jr. were charged by revised superseding indictment with conspiring to possess with intent to distribute and conspiring to distribute in excess of five kilograms of cocaine and in excess of fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). ² The conspiracy charge carried a mandatory minimum penalty of ten years imprisonment and a maximum penalty of life in prison. All five appellants were also charged in multiple counts with using a communication facility for the commission of a felony in violation of 21 U.S.C. § 843(b). In addition, Barnes was indicted on eight counts of possession with intent to distribute and/or distribution of cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B); Tucker was charged with one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Finally, the indictment charged Barnes with one count of using a minor to distribute cocaine base and marijuana in violation of 21 U.S.C. § 861(a)(1).

Scott, Shaw, and Slater entered into plea agreements with the government prior to trial whereby each pleaded guilty to one count of using a telephone to commit the crimes of possession with the intent to distribute and distribution of cocaine base. ³ The government dismissed the remaining charges against them. The court sentenced them to prison terms of twenty-one months, fifteen months, and thirty months, respectively.

Barnes and Tucker were tried by a jury in United States District Court, District of Minnesota, from May 10 through May 18, 1995. The jury found Barnes guilty on all counts; Tucker was acquitted on one charge of illegal telephone use and found guilty on all remaining counts against him. The court sentenced Barnes to a prison term of 242 months and Tucker to eighty-four months imprisonment.

Barnes challenges his conviction and sentence; Tucker appeals only his conviction; Scott, Shaw, and Slater challenge their sentences. Together, the appellants claim: (1) the government failed to establish the necessity of using telephone wiretaps; (2) the actions of a paid government informant amounted to outrageous government conduct; (3) the government's cross-examination of Tucker about his alleged promotion of prostitution prejudiced the verdict against him; (4) the evidence was insufficient to support Barnes' and Tucker's convictions; (5) the court erred by refusing to give Scott and Shaw mitigating-role sentence adjustments; and (6) the court erred by not departing downward on the theory that Slater's criminal history score dramatically overrepresented the seriousness of his prior criminal history. We affirm.

II.

At trial, the government introduced seventy-four recorded telephone conversations as evidence of both the drug conspiracy and using a communication facility for commission of a felony. ⁴ Barnes moved to suppress the evidence at trial and now appeals the denial of that motion. Barnes argues that the police affidavit used to secure the wiretaps did not establish necessity as required by 18 U.S.C. § 2518. We review the district court's determination for clear error. See United States v. Macklin, 902 F.2d 1320, 1327 (8th Cir.1990), cert. denied, 498 U.S. 1031, 111 S.Ct. 689, 112 L.Ed.2d 680 (1991).

An application for an order authorizing a wiretap must include, among other requirements, "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)(c). This necessity requirement ensures "that wiretaps are not routinely employed as the initial step in an investigation," but "does not require that law enforcement officers exhaust all possible techniques before applying for a wiretap." Macklin, 902 F.2d at 1326. The district court rejected Barnes' argument that the affidavit was conclusory, was filled with boilerplate language, and failed to establish the necessity of the wiretaps. The forty-five page affidavit recounts details of a long investigation into the suspected criminal activity, which included murder, of Barnes and others believed to be part of a tight-knit, violent group. According to the affidavit, authorities had attempted to infiltrate the organization for more than three years before applying for a wiretap. Ordinary measures used by authorities in the investigation, including ballistics reports, interviews with witnesses, confidential informants, surveillance, and pen registers, had proved unsuccessful; other measures, such as search warrants and increased undercover operations, were deemed either likely to fail or too dangerous. We hold that the court did not err in determining that the affidavit set out the need for the electronic surveillance in sufficient detail and declining to suppress the wiretap evidence.

III.

Barnes also argues that the behavior of Ronald Caldwell, a paid government informant who took drugs from controlled purchases for his own use, amounted to outrageous government conduct. ⁵ Barnes raises this claim for the first time on appeal. We agree with the government that, under the facts of this case, Barnes' failure to raise the claim in the district court constitutes a waiver.

Barnes had notice prior to trial of Caldwell's drug misappropriation and dishonest behavior. On May 4, 1995, six days before the start of trial, the government provided defense counsel with a letter revealing Caldwell's misconduct. Moreover, Caldwell's testimony at trial is filled with admissions, including that he took drugs for his personal use from FBI-financed drug purchases, Trial Tr. at 185, 191, 203, 214, that he lied to agents about his conduct, id. at 187, 211, 264, and that on at least one occasion, he was too high during a controlled purchase to remember who actually provided him with the drugs, id. at 241. Rather than object to Caldwell's conduct at the time of trial, the defendants gambled that the jury would discount his testimony. Considering all the facts of this case, particularly the fact that Barnes was fully aware of the basis for a claim of outrageous government conduct, we hold that Barnes has waived his claim of outrageous government conduct. See United States v. Henderson-Durand, 985 F.2d 970, 973-74 (8th Cir.) (failure to raise outrageous government conduct claim until post-trial motion constituted waiver where defendant knew of factual basis for claim but proceeded to trial using the same facts to present coercion defense), cert. denied, 510 U.S. 856, 114 S.Ct. 164, 126 L.Ed.2d 125 (1993).

IV.

Tucker argues that the verdicts against him were prejudiced by the government's cross-examination of him about his alleged activities as a pimp. We review the district court's decision to permit the cross-examination for an abuse of discretion. See United States v. Ojeda, 23 F.3d 1473, 1477 (8th Cir.1994).

Tucker testified in his own defense. When asked about his employment history by his lawyer, Tucker stated that he ran a business, Touch of Class, whereby he provided bars around the country with male and female exotic dancers. Trial Tr. at 410. On cross-examination, over defense counsel's objection, the government asked Tucker whether Touch of Class was a front for prostitution. Tucker denied the accusation. Id. at 445. To impeach his credibility, the government showed Tucker a transcript of an intercepted telephone call in which he talked about the amount of money he makes per night off of women. Id. at 446. Tucker continued to deny that he promoted prostitution, and the government moved on to a different line of inquiry. Id. at 447.

The government's cross-examination consisted of a limited exploration into the nature of Tucker's employment, an issue raised by Tucker. It then sought to impeach his testimony using his prior inconsistent statements. The government, however, did not cross the line into offering improper extrinsic evidence to prove that Tucker was in fact a pimp. See United States v. Roulette, 75 F.3d 418, 423 (8th Cir.1996) (impermissible to introduce extrinsic evidence of prior to impeach witness on a collateral matter). Moreover, after Tucker again denied involvement in promoting prostitution, the government did not raise the issue again despite the fact that Tucker's lawyer questioned other defense...