U.S. v. Stewart
| Decision Date | 10 September 2002 |
| Docket Number | No. 99-5850.,No. 99-5852.,No. 99-5853.,No. 99-6248.,No. 99-5615.,No. 99-6249.,99-5615.,99-5850.,99-5852.,99-5853.,99-6248.,99-6249. |
| Citation | 306 F.3d 295 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Suzette Miranda STEWART (99-5615); Calvin Nelson Tramble (99-5850); Charles Rossell, also known as Dog, also known as Snoopy (99-5852); Timothy Demarcus Lanxter, also known as Little Man (99-5853); Nathan Benford, also known as Fred, also known as Nate (99-6248); Rena Yvonne Benford, also known as Yvonne Redding, also known as Granny, also known as Renee Redding, also known as Rena Redding, also known as Rena Benford (99-6249), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gregg L. Sullivan (argued and briefed), Assistant United States Attorney, Chattanooga, TN, for U.S.
Clayton M. Whittaker (argued and briefed), Foster, Foster, Allen & Durrence, Chattanooga, TN, for Suzette Miranda Stewart.
Suzette Miranda Stewart, Tallahassee, FL, pro se.
Neal L. Thompson (argued and briefed), Chattanooga, TN, for Calvin Nelson Tramble.
Jerry H. Summers (briefed), Jimmy F. Rodgers, Jr. (argued and briefed), Summers & Wyatt, Chattanooga, TN, for Charles Rossell.
Paul D. Cross (briefed), Monteagle, TN, for Timothy Demarcus Lanxter.
William H. Ortwein (argued and briefed), Ortwein & Associates, Chattanooga, TN, for Nathan Benford.
W. Gerald Tidwell, Jr. (briefed), Chattanooga, TN, for Rena Yvonne Benford.
Before CLAY, GILMAN, and WALLACE, Circuit Judges.*
This consolidated case, involving six members of a drug trafficking conspiracy in Chattanooga, Tennessee, presents several issues for consideration. The Defendants appeal their judgments after being convicted, inter alia, of conspiracy to distribute and possess with intent to distribute cocaine hydrochloride and/or cocaine base, specifically, "crack," in violation of 21 U.S.C. §§ 841(a), 846, and being sentenced to various terms of imprisonment and supervised release.
In Case No. 99-5615, Suzette Miranda Stewart ("Stewart") brings an Apprendi challenge to her sentence entered pursuant to a guilty plea on the drug conspiracy charge. Stewart also appeals the two-level enhancement of her base offense level under United States Sentencing Commission, Guidelines Manual, ("USSG") § 2D1.1(b). In Case No. 99-5850, Calvin Nelson Tramble ("Tramble") appeals his conviction upon pleading guilty to aiding and abetting money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). Tramble also appeals his sentence after pleading guilty to the drug conspiracy charge, raising an Apprendi challenge as well as challenging the three-level enhancement for his role in the offense under USSG § 3B1.1(c). In Case No. 99-5852, Charles Rossell ("Rossell") appeals his sentence pursuant to a guilty plea on the drug conspiracy charges on several grounds, including (1) an Apprendi challenge; (2) the district court's refusal to reduce his statutory minimum sentence under the "safety valve" of USSG § 5C1.2(2) and 18 U.S.C. § 3553(f); (3) a two-level enhancement of his base offense level under USSG § 2D1.1(b); and (4) the district court's refusal to grant a downward departure under USSG § 5K2.0 for "exceptional circumstances." In Case No. 99-5853, Timothy Demarcus Lanxter ("Lanxter") appeals his sentence pursuant to a plea of guilty to the drug conspiracy charge based upon the district court's decision to sentence him to a term of imprisonment above the applicable range under the sentencing guidelines after departing downward from the statutory minimum sentence pursuant to 18 U.S.C. § 3553(e). In Case No. 99-6248, Nathan Benford ("Benford") challenges his conviction based upon the district court's denial of his motion to suppress wiretap evidence as well as the court's use of challenged jury instructions. Benford also challenges his sentence on the drug conspiracy charge under the Apprendi line of cases. Finally, in Case No. 99-6249, Nathan Benford's wife, Rena Benford ("Mrs.Benford"), also appeals the denial of a motion to suppress wiretap evidence. In addition to raising an Apprendi challenge to her sentence on the drug conspiracy charge, Mrs. Benford also challenges a two-level enhancement of her base offense level under USSG § 2D1.1(b).
For the reasons that follow, we AFFIRM the convictions and sentences of all Defendants. However, as explained in Section IV(E) of the lead opinion, Judge Clay would VACATE Mrs. Benford's sentence and REMAND for re-sentencing within the statutory range provided by 21 U.S.C. § 841(b)(1)(C).
In the mid 1990s, FBI agents in Chattanooga, Tennessee, engaged in a long-term investigation into a possible drug trafficking conspiracy involving Nathan Benford, his wife, Rena Yvonne Benford, and several of their associates. The agents obtained authorization for electronic surveillance of land-based telephone lines at several premises as well as mobile phones, which was conducted between April 22, 1998 and July 30, 1998. These wiretaps, in conjunction with traditional surveillance and investigatory methods, revealed a vast drug trafficking conspiracy in the Chattanooga, Tennessee and Louisville, Kentucky areas involving Defendants. The illegal operations were conducted using several premises, including the Uptown Supper Club, which is a nightclub operated by the Benfords, the S & S Market, a convenience store managed by Stewart and owned by her father, as well as several of Defendants' residences. Throughout the investigation, FBI agents acted on the information they received from the wiretap surveillance. At one point, an undercover agent posed as one of Benford's associates and was able to pick up a package of crack cocaine from one of the co-defendants.
On August 26, 1998, Defendants were charged, along with twenty-four co-defendants, with one count of conspiracy to "distribute and possess with intent to distribute cocaine hydrochloride and cocaine base (`crack')," in violation of 21 U.S.C. § 841(a) and 21 U.S.C. § 846. One month later, a superseding indictment retained the drug conspiracy charge in Count One and added charges of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) against the Benfords and Tramble. However, the superseding indictment failed to allege the quantity of drugs attributable to each Defendant. Stewart, Tramble, Rossell and Lanxter all pleaded guilty to the drug conspiracy charge. Tramble also pleaded guilty to the money laundering charge. Their plea agreements also failed to specify the relevant drug quantities. The Benfords proceeded to trial, after which they were convicted on the drug conspiracy charge and one of the money laundering charges.1 At Defendants' respective sentencing hearings, the district court received evidence which was used to determine the quantity of drugs attributable to each of them. The court handed down sentences specifying terms of imprisonment and supervised release, as well as special assessments for each Defendant. All Defendants filed timely notices of appeal.
At the trial of Nathan and Rena Benford, the government introduced into evidence recorded telephone conversations by several members of the drug conspiracy. The Benfords both moved to suppress the wiretap information prior to trial, and also requested an evidentiary hearing on the issue; however, the district court denied the motions to suppress without the benefit of a hearing. On appeal, the Benfords contend that the affidavit used to obtain the wiretap warrant did not satisfy the requirements of 18 U.S.C. § 2518(1)(c) and, further, that they were improperly denied an evidentiary hearing on this matter in violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because some of the statements in the affidavit were either knowingly false or made with reckless disregard as to their veracity. We reject both of these claims.
As a general matter, this Court reviews the district court's factual findings on suppression issues for clear error, and its legal conclusions under the de novo standard. United States v. Hill, 142 F.3d 305, 310 (6th Cir.1998). But the circuits are split as to the proper standard of review of the denial of an evidentiary hearing under Franks. See United States v. Fields, No. 98-5798, 2000 WL 1140557, at 3 (6th Cir. Aug.4, 2000); United States v. Palladino, No. 92-00072, 1994 WL 369139, at 4 n. 4 (6th Cir. July 13, 1994); United States v. Dale, 991 F.2d 819, 843, n. 44 (D.C.Cir.1993). In Dale, our sister circuit noted that four circuits employ clear error review for a denial of a Franks hearing — United States v. Buchanan, 985 F.2d 1372, 1378 (8th Cir.1993); United States v. Skinner, 972 F.2d 171, 177 (7th Cir.1992); United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.1990); United States v. One Parcel of Property, 897 F.2d 97, 100 (2d Cir.1990) — and two circuits review de novo — United States v. Homick, 964 F.2d 899, 904 (9th Cir.1992); United States v. Mueller, 902 F.2d 336, 341 (5th Cir.1990), denial of post-conviction relief vacated by 168 F.3d 186 (5th Cir.1999). However, as was the case in Fields and Dale, "the more exacting [de novo] standard of review is satisfied ... and it is unnecessary for us to further discuss the issue." Fields, 2000 WL 1140557, at 3.
In order to conduct electronic surveillance using a wiretap, federal law enforcement officials must secure authorization by making an application containing 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...
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