U.S. v. Small

• Decision Date: 15 September 2005
• Docket Number: No. 04-1168.,No. 03-1513.,No. 04-1201.,No. 04-1148.,No. 04-1503.,No. 04-1157.,No. 04-1188.,No. 04-1161.,04-1188.,04-1157.,04-1148.,04-1168.,04-1161.,03-1513.,04-1201.,04-1503.
• Citation: 423 F.3d 1164
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie James SMALL, Alvin Green, a/k/a Mel Dog, Theolian Lloyd, Sammy Lee Woods, George Melvin Murray, Tommy Jones, Dwayne Van Dyke, Dawan Eugene Smith, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

423 F.3d 1164

UNITED STATES of America, Plaintiff-Appellee, v. Willie James SMALL, Alvin Green, a/k/a Mel Dog, Theolian Lloyd, Sammy Lee Woods, George Melvin Murray, Tommy Jones, Dwayne Van Dyke, Dawan Eugene Smith, Defendants-Appellants.

No. 04-1188.

No. 04-1157.

No. 04-1148.

No. 04-1168.

No. 04-1161.

No. 03-1513.

No. 04-1201.

No. 04-1503.

United States Court of Appeals, Tenth Circuit.

September 15, 2005.

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Matthew C. Golla, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, John T. Carlson, Research and Writing Attorney, with him on the briefs), Denver, CO, for Defendant-Appellant Willie James Small.

Michael G.A. Williams, Denver, CO, for Defendant-Appellant Alvin Green, a/k/a/ Mel Dog.

John Henry Schlie, Law Office of John Henry Schlie, P.C., Centennial, CO, for Defendant-Appellant Theolian Lloyd.

Wade H. Eldridge, Wade H. Eldridge, P.C., Denver, CO, for Defendant-Appellant George Melvin Murray.

Robert T. McAllister, Robert T. McAllister, P.C., Denver, CO, for Defendant-Appellant Tommy Jones.

James C. Murphy, Assistant United States Attorney (John W. Suthers, United States Attorney, William J. Leone, Acting United States Attorney, Kathleen Tafoya, Assistant United States Attorney, Guy Till, Assistant United States Attorney, with him on the briefs), Denver, CO, for Plaintiff-Appellee.

Ronald Gainor, Longmont, CO, adopted Defendant-Appellant Willie Smalls' brief, for Defendant-Appellant Sammy Lee Woods.

Dennis W. Hartley, Dennis W. Hartley, P.C., Colorado Springs, CO, for Defendant-Appellant Dwayne Van Dyke.

Frank Moya, Denver, CO, for Defendant-Appellant Dawan Eugene Smith.

Before MURPHY, McWILLIAMS, and HARTZ, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Defendants-appellants Willie Small, Alvin Green, Theolian Lloyd, Sammy Lee Woods, George Murray, and Tommy Jones were convicted in United States District Court for the District of Colorado of various drug offenses arising out of a large-scale crack cocaine distribution conspiracy operating in the Denver area. Defendants-appellants Dwayne Van Dyke and Dawan Eugene Smith pleaded guilty to offenses arising out of the same drug conspiracy. Appellants now appeal various aspects of their convictions and sentences. This court previously consolidated the appeals of Small (No. 04-1188), Green (No. 04-1157), Lloyd (No. 04-1148), Woods (No. 04-1168), Murray (No. 04-1161), and Van Dyke (No. 04-1201). We now further consolidate the appeals of Jones (No. 03-1513) and Smith (No. 04-1503) with the above cases and affirm the convictions and sentences of all appellants except for Murray. As to Murray, this court remands the case for resentencing in accordance with the Supreme Court's opinion in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).¹

II. BACKGROUND

In September 2000, FBI Special Agent Todd Wilcox of the Metro Gang Task Force ("Task Force") received information from an informant that defendant-appellant Willie Small was engaged in the large-scale distribution of crack cocaine in the Denver metropolitan area. Between September 2000 and January 2001, Wilcox directed the informant to conduct nine controlled purchases of crack cocaine from Small and his associates while wearing a body wire. Wilcox utilized the informant until her identity was revealed in an unrelated case. The informant was then moved out of state and no longer used in the investigation.

Over the next several months, the Task Force continued to investigate Small's organization using other investigative techniques, including visual surveillance, video cameras, pen registers, and trap-and-trace devices. On March 28, 2001, Wilcox applied for a wiretap on Small's cellular phone pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522. The affidavit in support of the wiretap application consisted of an exhaustive 100-page summary of the investigation, setting forth the reasons why the investigative techniques used by the Task Force up to that point were unable to meet the investigation's objectives. A United States district judge granted the application, and on April 20, 2001, also authorized a second wiretap on Small's home phone. The district judge subsequently extended the cellular phone wiretap twice on April 27, 2001, and May 25, 2001, and extended the home telephone wiretap once on May 18, 2001. The wiretaps remained in place until the close of the investigation in June, 2001. The FBI then simultaneously executed numerous search and arrest warrants against suspected members of the drug conspiracy.

Small, Green, Lloyd, Woods, Murray, Jones, Van Dyke, Smith, and nineteen other co-defendants were charged in a seventy-seven count second superseding indictment filed in United States District Court for the District of Colorado. Count I of the indictment charged most of the defendants, including all appellants in this case, with conspiracy to distribute and possess with intent to distribute crack cocaine weighing more than fifty grams, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and 21 U.S.C. § 846. The remainder of the counts charged individual defendants with various other drug, weapons, and money laundering offenses.

Defendants moved to suppress the evidence obtained pursuant to the court-ordered wiretaps. After five days of evidentiary hearings, the district court denied the motions. Most of the defendants, including appellants Van Dyke and Smith, then pleaded guilty in exchange for a dismissal of some of the charges against them. Van Dyke pleaded guilty to possession with intent to distribute more than fifty grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). He was sentenced to 175 months' imprisonment. Smith pleaded guilty to use of a telephone to facilitate a drug felony in violation of 21 U.S.C. § 843(b). He was sentenced to forty-eight months' imprisonment, the statutory maximum sentence.

Green, Lloyd, Woods, Murray, and other co-defendants filed motions for separate trials in the district court. After a hearing, the court denied the motions. The court did, however, order a separate trial for Jones. Jones waived his right to a trial by jury and was tried in a two-day bench trial at which the government introduced evidence from the wiretaps on Small's telephones. The court found Jones not guilty of conspiracy, but guilty of using a telephone to facilitate a drug felony, and aiding and abetting the distribution of more than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and 18 U.S.C. § 2. He was sentenced to concurrent 140-month and 48-month sentences.

The remaining seven defendants, including appellants Small, Green, Lloyd, Woods, and Murray, were tried together in a jury trial lasting from September 22, 2003, to November 13, 2003. Small, Green, Lloyd, and Woods were convicted on Count I as well as on other drug charges. Murray was acquitted on Count I but convicted of distribution and possession with intent to distribute more than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and use of a telephone to facilitate a drug felony.

Because Small and Green each had at least two prior felony drug convictions, they were sentenced to mandatory terms of life imprisonment on Count I pursuant to 21 U.S.C. § 841(b)(1)(A). Lloyd and Woods each had one prior felony drug conviction and were sentenced to the statutory minimum term of 240 months' imprisonment on Count I pursuant to the same provision. All four of these defendants also received concurrent sentences on their remaining counts of conviction. Murray, who was acquitted on Count I, was sentenced to concurrent sentences of 150 months and 48 months.

III. DISCUSSION

A. Motions to Suppress

1. Franks Challenges

To obtain a wiretap pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the government must follow special procedures set forth in 18 U.S.C. §§ 2510-2522. See United States v. Green, 175 F.3d 822, 828 (10th Cir.1999). One requirement of the statute is that the government must present a written application to a federal judge establishing that the wiretap is necessary. 18 U.S.C. § 2518(1); Green, 175 F.3d at 828. Before granting the application, the judge must find that the affidavit establishes necessity by showing that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c); Green, 175 F.3d at 828.

Small, Green, Lloyd, Woods, and Jones argue that the issuing judge's finding of necessity was tainted by inaccurate and misleading statements in Special Agent Wilcox's wiretap application and supporting testimony. This court reviews alleged misrepresentations and omissions in a wiretap application under the standard for challenges to search warrants developed by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See Green, 175 F.3d at 828. Under this standard, the defendant must show that any misstatements were made knowingly, intentionally, or recklessly, and that the erroneous information was material to the district court's finding of necessity. Id. The defendant bears the burden of overcoming the presumption that the district court's wiretap authorization was proper. Id. at 828-29.

In response to appellants' allegations of inaccuracies, the district court held five days of hearings before issuing a written order denying the motions. See United States v. Small, 229 F.Supp.2d 1166, 1208 (D.Colo.2002). The court concluded that the allegedly false statements identified by appellants were either not inaccurate or were not made intentionally or with reckless disregard for the...