United States v. Campbell

• Decision Date: 21 January 2021
• Docket Number: No. 19-1127, 19-1491, 19-1523, 19-1897,19-1127, 19-1491, 19-1523, 19-1897
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Alston CAMPBELL, Jr., Alston Campbell, Sr., Willie Carter, and William Marcellus Campbell, Defendants - Appellants
• Court: U.S. Court of Appeals — Eighth Circuit

986 F.3d 782

UNITED STATES of America, Plaintiff - Appellee

v.Alston CAMPBELL, Jr., Alston Campbell, Sr., Willie Carter, and William Marcellus Campbell, Defendants - Appellants

No. 19-1127, 19-1491, 19-1523, 19-1897

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2020

Filed: January 21, 2021

Rehearing and Rehearing En Banc Denied April 16, 2021

Counsel who presented argument on behalf of the appellant and appeared on the appellant brief in 19-1127 was Alfred E. Willett, of Cedar Rapids, IA. The following attorney(s) appeared on the appellant brief in 19-1127; Dillon Johnathan Besser, of Cedar Rapids, IA. Counsel who presented argument on behalf of the appellant and appeared on the appellant brief in 19-1491 was Brian Dean Johnson, of Cedar Rapids, IA. Counsel who presented argument on behalf of the appellant and appeared on the appellant brief in 19-1523 was David E. Mullin, of Cedar Rapids, IA. Counsel who presented argument on behalf of the appellant and appeared on the appellant brief in 19-1867 was Elizabeth Ann Araguas, of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee and appeared on the appellee brief was Emily K. Nydle, AUSA, of Cedar Rapids, IA.

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.

SHEPHERD, Circuit Judge.

After a multi-year investigation featuring confidential informants, controlled buys, wiretaps, and surveillance, a grand jury indicted William Marcellus Campbell (William), Alston Campbell, Jr. (Junior), Willie Junior Carter (Carter), Alston Campbell, Sr. (Senior), "A.M.", "J.P.", and "D.S." on various drug trafficking charges. The government moved to sever J.P.’s and Carter's trials for a separate joint trial to precede that of the remaining co-defendants, and the district court granted that motion. The grand jury then returned a superseding indictment. A.M., J.P., and D.S. entered guilty pleas, and a jury convicted the four remaining defendants (William, Junior, Carter, and Senior). William, Junior, Carter, and Senior now appeal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.¹

I.

In 2016, a task force began investigating illegal drug trafficking activities within Eastern Iowa. Specifically, the task force began investigating the Campbell family organization after confidential sources provided information that the organization was trafficking narcotics throughout the Waterloo, Iowa area. The Assistant United States Attorney (AUSA) for the Northern District of Iowa submitted a wiretap application for the surveillance of target cell phones belonging to William. The wiretap application was supported by an affidavit containing sworn testimony from an investigator with the City of Cedar Rapids Drug Enforcement Task Force, Officer Bryan Furman. Officer Furman stated that the wiretap would intercept communications between William, Junior, Senior, A.M., J.P., and "others yet unknown." R. Doc. 127-1, at 18. Officer Furman identified William as a "retail level" crack cocaine distributor within a distribution operation led by Junior. R. Doc. 127-1, at 26. Officer Furman testified that intercepted communications from the target cell phones would likely identify the leadership of the distribution network and the location(s) of narcotics and provide evidence concerning the target offenses; drug supply; transporters; financiers; manufacturers; distributors; and customers. In his affidavit, Officer Furman further testified that because the affidavit served the "limited purpose of securing authorization for the interception of wire and electronic communications," he included only those facts that he believed were "necessary to establish the foundation for an order authorizing" that interception. R. Doc. 127-1, at 21-22. Officer Furman also testified that "[n]ormal investigative procedures have been tried and have failed, appear unlikely to succeed if tried, or are too dangerous to employ." R. Doc. 127-1, at 19.

In the wiretap application, Officer Furman testified that investigators had previously engaged two members of the organization as cooperators, and those cooperators participated in controlled narcotics purchases. However, these cooperators continued participating in uncontrolled criminal activity, and investigators quit engaging with them to protect the investigation's secrecy. In addition to relying on cooperators, investigators had employed surveillance, cell site location tracing, pen registers, trash searches, and search warrants. Although these investigative techniques provided some helpful information—revealing the identity of retail-level distributors and the patterns of individuals’ movements and resulting in the seizure of small amounts of narcotics—investigators were still unable to uncover information such as supply sources, organizational hierarchy, and major inventory locations. In the application, Officer Furman also discussed investigative techniques that the task force had not employed but that would likely prove unfruitful or too dangerous: financial investigations using subpoenas and search warrants; undercover agents; field interviews; or grand-jury subpoenas of persons associated with the organization. The district court issued a wiretap order authorizing surveillance of the cell phones on October 24, 2016.

On July 10, 2017, a grand jury indicted William, Junior, Carter, Senior, A.M., J.P., and D.S. on various drug-trafficking charges. William and Junior each filed a motion to suppress the government's wiretap evidence. In their motions, William and Junior both argued that the government, in its Title III application, did not provide the magistrate judge with a "full and complete" statement of facts. R. Doc. 117, at 2; R. Doc. 115, at 2. Instead, they argued, Officer Furman provided only those facts that he found pertinent to the district court's evaluation of necessity rather than allowing the court to make an independent finding of necessity from all available facts. Junior separately argued that the government failed to properly minimize intercepted communications.

On January 22, 2018, the magistrate judge issued a report and recommendation, recommending that the district court deny Junior's and William's motions to suppress as to the issue of necessity. Junior then filed a supplemental brief addressing alleged minimization violations, which the government opposed. On January 30, 2018, the magistrate judge issued a second report and recommendation, recommending that the district court deny Junior's motion asserting minimization violations. The district court adopted the magistrate judge's report and recommendations in part.²

On February 22, 2018, a grand jury issued a superseding indictment. This indictment included fourteen total counts, but only six of those counts charged Appellants. In Count 1, the grand jury charged all defendants with conspiracy to distribute cocaine and cocaine base. In Counts 3 and 4, the grand jury charged Senior (Count 3) and William (Count 4) each with distribution of cocaine base. In Count 12, it charged William with distribution of cocaine. In Count 13, the grand jury charged Carter with possession with intent to distribute cocaine base. Finally, in Count 14, the grand jury charged Junior with possession with intent to distribute cocaine. Ultimately, a jury convicted: Junior of Counts 1 and 14; Senior of Counts 1 and 3; William of Counts 1, 4, and 12; and Carter of Counts 1 and 13.

II.

A. William's Appeal

A jury convicted William of conspiracy to distribute cocaine and cocaine base (Count 1), distribution of cocaine base (Count 4), and distribution of cocaine (Count 12). On appeal, William alleges that the district court erred by: (1) denying his motion to suppress the wiretap evidence; (2) limiting cross-examination; (3) denying his request for a multiple conspiracies jury instruction; and (4) applying witness intimidation and aggravated role enhancements.

1.

William first argues that the district court erred by denying his motion to suppress the wiretap evidence. "We review the denial of a motion to suppress de novo but review underlying factual determinations for clear error, giving due weight to the inferences of the district court and law enforcement officials." United States v. Milliner, 765 F.3d 836, 839 (8th Cir. 2014) (quoting United States v. Thompson, 690 F.3d 977, 984 (8th Cir. 2012) ).

"Title III of the Omnibus Crime Control and Safe Streets Act of 1968 [(codified as amended at 18 U.S.C. §§ 2510 - 23 ) (Title III)] prescribes the procedure for securing judicial authority to intercept wire communications in the investigation of specified serious offenses." United States v. Giordano, 416 U.S. 505, 507, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). Each wiretap application must include a "full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued ...." 18 U.S.C. § 2518(1)(b). Similarly, applicants must include "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." Id. § 2518(1)(c). Before authorizing a wiretap, a judge must determine, based on the facts submitted by the applicant, that a wiretap is necessary. Id. § 2518(3). Suppression of wiretap evidence is appropriate where any one of Title III's statutory requirements is unsatisfied. Giordano, 416 U.S. at 527, 94 S.Ct. 1820.

Here, William argues that the government failed to establish necessity. He maintains that investigators chose to target his phones—rather than those of other retail-level dealers in the organization—because of his familial relationship with Senior and Junior, and by not disclosing this motivation to the district court, Officer Furman did not provide the district court with a "full and complete statement of the facts and circumstances." 18 U.S.C. § 2518(1)(c). Further, William asserts...