United States v. Capers

• Decision Date: 14 February 2013
• Docket Number: 10–14521 and 10–15074.,Nos. 10–14332,s. 10–14332
• Citation: 708 F.3d 1286
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Bishop CAPERS, Leon Anthony Frederick, Larry Little, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

708 F.3d 1286

UNITED STATES of America, Plaintiff–Appellee,

v.Bishop CAPERS, Leon Anthony Frederick, Larry Little, Defendants–Appellants.

Nos. 10–14332, 10–14521 and 10–15074.

United States Court of Appeals, Eleventh Circuit.

Feb. 14, 2013.

Anne Ruth Schultz, Sean Paul Cronin, Wifredo A. Ferrer, Daren Grove, Andrea G. Hoffman, Sally M. Richardson, Kathleen Mary Salyer, Cynthia R. Wood, U.S. Attys., Miami, FL, for Plaintiff–Appellee.

Charles Garret White (Court–Appointed), Charles G. White, PA, Miami, FL, for Defendant–Appellant in No. 10–14332.

Martin Alan Feigenbaum (Court–Appointed), Martin A. Feigenbaum, Surfside, FL, for Defendant–Appellant in No. 10–14521.

Marshall Dore Louis (Court–Appointed), Sinclair, Louis, Heath, Nussbaum & Zavertnik, PA, Miami, FL, for Defendant–Appellant in No. 10–15074.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, MARTIN and FAY, Circuit Judges.

MARTIN, Circuit Judge:

Bishop Capers, Leon Anthony Frederick, and Larry Little appeal their convictions for conspiracy to possess with intent to distribute cocaine and crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1), possession with intent to distribute cocaine and crack cocaine in violation of 21 U.S.C. § 841(a)(1), and other counts. Mr. Capers and Mr. Little also appeal their sentences. After careful review, and with the benefit of oral argument, we affirm Mr. Frederick's convictions and sentence; we affirm Mr. Capers's convictions, and remand his case for resentencing under the Fair Sentencing Act (FSA); and we affirm Mr. Little's convictions, and remand his case for resentencing under the FSA.

I. BACKGROUND AND PROCEDURAL HISTORY

This case followed a two-year investigation into a cocaine trafficking organization operating out of the Coconut Grove neighborhood in Miami, Florida. The investigation resulted in a series of indictments charging as many as thirty defendants with various drug conspiracy and substantive offenses. Of those originally indicted, many pleaded guilty and agreed to cooperate by testifying for the government. Mr. Frederick, Mr. Capers, and Mr. Little went to trial on the forty-three count second superseding indictment. That indictment charged each with conspiracy to possess with intent to distribute five kilograms of cocaine and fifty grams of crack cocaine (Count 1), and a number of counts of possession with intent to distribute cocaine and crack cocaine.¹ Mr. Frederick was also charged with possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 21 U.S.C. § 841(a)(1), (Count 42), and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), (Count 43).

Trial began on June 7, 2010. The government presented evidence that Mr. Frederick was the leader of the Coconut Grove drug distribution operation. From 2007 to 2009, Mr. Frederick and a partner, Ronald Burke,² operated out of a duplex at 3171/3173 Carter Street. Mr. Burke testified that he sold small amounts of cocaine and crack to retail purchasers, and that Mr. Frederick sold quantities consistent with wholesale distribution. Mr. Burke testified that together, he and Mr. Frederick sold approximately $1,500–7,000 of cocaine and crack cocaine from the Carter Street location each day.

Evidence collected from wiretaps of Mr. Burke's and Mr. Frederick's cell phones from January to March 2009 factored significantly in the government's case against Mr. Frederick. Calls intercepted during these wiretaps included discussions between Mr. Frederick and Mr. Burke about police presence, whether to shut down operations, and what to do with the drugs. They also included a number of conversations about specific drug transactions, with many requests by Mr. Burke for more drugs to supply their retail purchasers.

In support of the firearms offenses, the government introduced evidence that an AK–47 was recovered during a search of Mr. Frederick's condominium in Sunny Isles, Miami. The Sunny Isles search also turned up two kilograms of cocaine, empty baggies with cocaine residue, $47,000 cash, and documents bearing Mr. Frederick's name.

The evidence against Mr. Capers showed that he was one of Mr. Burke's regular customers, that he was addicted to crack cocaine, that he tended to purchase crack in .1 gram (“dime”) units for $10 each, and that he usually purchased around ten dimes at a time. There was also testimony that Mr. Capers bought the dime amounts for $10 from Mr. Burke, and then resold (“juggled”) them for $20 at locations outside Coconut Grove.

Regarding Mr. Little, several witnesses testified that he also juggled crack cocaine. The government also introduced evidence that its confidential informant (CI) purchased crack directly from Mr. Little and that Mr. Little shepherded customers—including the CI—to other drug dealers.

Mr. Frederick's theory of defense was primarily that the government lacked sufficient, credible evidence to convict him of the alleged charges. Mr. Capers and Mr. Little each relied heavily on assertions that they were retail purchasers and end users of crack cocaine, “and therefore did not knowingly and willfully possess the drugs with the intent to distribute after they were obtained or knowingly and willfully conspir[e] with others to distribute after the drugs were obtained.” Mr. Frederick, Mr. Capers, and Mr. Little did not testify at trial.

Following the ten-day trial, the jury deliberated for two days. On June 23, 2010, the jury returned its verdicts, convicting each defendant of most of the offenses charged. The jury convicted Mr. Frederick of the conspiracy charged in Count 1, all but one of the nineteen distribution counts as charged in Counts 10–13, 16–24, 28, 30–31, 33, 39 and 41,³ and the firearms violations alleged in Counts 42 and 43. The jury convicted Mr. Capers of a lesser included offense of the conspiracy charged in Count 1,⁴ and four counts of possession with intent to distribute detectable amounts of crack cocaine as charged in Counts 16, 17, 18, and 20. Likewise, the jury convicted Mr. Little of a lesser included offense of the conspiracy charge,⁵ and two counts of possession and distribution of five grams of crack as alleged in Counts 37 and 38.

Mr. Capers was sentenced on September 1, 2010. At sentencing, he faced a guideline range of 360 months to life imprisonment based on a total offense level of 37 and a criminal history category of VI. However, having determined that Mr. Capers “was in the lower third of [defendants] in terms of culpability,” “was a crack addict,” and that “[m]ost of the drugs purchased were for [his] own use,” the District Court imposed a below guidelines sentence of concurrent terms of 225 months imprisonment on Counts 1, 16–18, and 20. The District Court did not apply the August 3, 2010 Fair Sentencing Act to its calculation of Mr. Capers's guideline range. The District Court did, however, “consider[ ] the fact” that “under that new statute, [Mr. Capers's] guidelines would be 262–327 months.”

Mr. Frederick was sentenced on September 8, 2010. He faced a guideline range of 444 months to life imprisonment based on application of the career offender enhancement, U.S.S.G. §§ 4B1.1(c)(2)(A) and 5G1.2(e). The District Court sentenced Mr. Frederick to concurrent terms of life imprisonment on Counts 1, 10, and 31; 360 months imprisonment on Counts 11–13, 16–24, 28, 30, 33, 39, and 41; and 120 months imprisonment on Count 43, with a consecutive term of 60 months on Count 42.

Mr. Little was sentenced on October 13, 2010. He faced a guideline range of the 360 months to life imprisonment based on a total offense level of 37 and a criminal history category of VI. Over Little's objection, the court did not apply the FSA to the calculation of his guideline range, determining that the FSA was not retroactive to offenses committed before it was enacted. However, due to the fact that Mr. Little's convictions involved quantities of drugs that totaled “less than one ounce,” the court imposed a below-guideline sentence of concurrent terms of 327 months imprisonment on Counts 1, 37, and 38.

Mr. Capers, Mr. Frederick, and Mr. Little each filed timely notices of appeal. Their appeals were then consolidated.

II. DISCUSSION

We consider each of the arguments raised by Mr. Frederick, Mr. Capers, and Mr. Little in turn.

A. GUILT PHASE

1. Mr. Frederick

Mr. Frederick raises five issues. He argues that the District Court erred by: (1) denying his motion to suppress wiretap evidence; (2) denying his motion for judgment of acquittal for insufficient evidence; (3) denying his various motions for mistrial; and (4) denying his motion for a new trial. Finally, he contends that cumulative error throughout the proceedings denied him a fair trial.

a. The District Court's Denial of Mr. Frederick's Motion to Suppress Wiretap Evidence

The government's case against Mr. Frederick (and the others) was based in significant part on evidence derived from the wiretap. Prior to trial, Mr. Frederick moved “for entry of an Order suppressing wiretap evidence, [and] other evidence [derived from the wiretap] under the ‘fruits of the poisonous tree’ doctrine.” As the basis for his motion, Mr. Frederick alleged that “[t]he Government's Affidavit in support of its Application to wiretap [his] cell phone contain[ed] ... misleading statements made recklessly.”

The District Court referred Mr. Frederick's motion to the Magistrate Judge, who recommended that the motion to suppress be denied because Frederick had not established that the wiretap affidavit would fail for want of probable cause absent the alleged “misleading statements.” The District Court adopted the Magistrate Judge's report and recommendation without discussion and entered an order denying Mr. Frederick's motion to suppress.

Here, Mr. Frederick reasserts his claim that “the Wiretap Affidavit contained misrepresentations or omissions which...