United States v. Eiland

Citation738 F.3d 338
Decision Date25 April 2014
Docket NumberNos. 07–3131,11–3001.,s. 07–3131
PartiesUNITED STATES of America, Appellee v. Gerald W. EILAND, Frederick Miller, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

OPINION TEXT STARTS HERE

Appeals from the United States District Court for the District of Columbia (Nos.04cr00379–01, 04cr00379–02).

Eric H. Kirchman argued the cause for appellant Gerald W. Eiland. With him on the briefs was Kenneth M. Robinson.

Dennis M. Hart argued the cause and filed the briefs for appellant Frederick Miller.

Frederick A. Miller, pro se, filed the briefs for appellant Frederick Miller.

Katherine M. Kelly, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, and John K. Han, Assistant U.S. Attorneys. Mary B. McCord, Assistant U.S. Attorney, entered an appearance.

Before: GARLAND, Chief Judge, and ROGERS and BROWN, Circuit Judges.

Opinion for the Court by Circuit Judge BROWN.

BROWN, Circuit Judge.

Appellants, Gerald Eiland and Frederick Miller, were convicted of various narcotics-related offenses. The government's evidence at trial showed that Eiland and Miller organized an extensive drug ring in the Washington, D.C. area that had ties across the country. After almost a year and a half of investigation including numerous wiretaps, the government indicted twenty-one defendants. Many of the defendants pled guilty. The government brought the remaining defendants to trial in two groups. This appeal results from the second of these trials. We also heard an appeal from the first trial, United States v. Miller, Nos. 07–3135 & 07–3139, and we have disposed of those issues in another opinion released today.

Eiland and Miller allege numerous errors affecting the second trial. Although we reject most of appellants' arguments, we vacate Miller's insufficiently supported conviction for his participation in a continuing criminal enterprise and remand for resentencing. We also vacate the fine imposed on Eiland by the district court and remand for reconsideration of that portion of Eiland's sentence.

I. Facts and Procedural History

Our opinion in the companion case sets out the factual and procedural background of this case in some detail. We need not retell that story here, and we limit our discussion to facts relevant to the second trial and this appeal.

Sometime in 2003, the Safe Streets Task Force of the FBI began investigating a drug trafficking ring in Southeast Washington, D.C. The evidence revealed a wide-ranging drug operation headed by Eiland and Miller. The operation dealt in heroin, cocaine, cocaine base, and phencyclidine (PCP) and had ties around the country and to foreign travelers. On February 13, 2004, the task force applied for and was granted court authorization to wiretap Miller's cell phone. The court approved two extensions and the wiretap lasted three months. In April, the district court permitted the task force to tap Eiland's three phones and approved an extension for one of those phones. FBI Agent Daniel Sparks provided supporting affidavits for each of the initial wiretap and extension applications. Although the conspirators often used untapped payphones to discuss their illicit activities and spoke in guarded language while on the wiretapped phones, the FBI obtained substantial evidence from the wiretaps. Following a “reverse sting” operation, the FBI arrested Eiland and Miller in August 2004. The government charged twenty-one defendants in a 100–count superseding indictment. The defendants were charged with conspiring to distribute heroin, cocaine, cocaine base, and PCP between 1999 and 2004 in Virginia, the District of Columbia, and Maryland.

The defendants who did not plead guilty were separated into two groups for trial. Prior to the first trial, many of the defendants, including Eiland and Miller, moved to suppress the wiretap evidence because, they argued, the authorization violated the wiretap statute, 18 U.S.C. § 2510 et seq. The district court denied defendants' motions. United States v. Eiland, 398 F.Supp.2d 160 (D.D.C.2005). The government relied heavily on the more than 14,000 recorded telephone conversations at both trials.

The first trial group, consisting of Frederick Miller, Timothy Thomas, and Corey Moore, went to trial in March 2006. The trial lasted two months, and the jury deliberations lasted a month. Thomas was convicted of most charges, including conspiring to commit a narcotics offense (cocaine) and RICO conspiracy. Moore was acquitted of all charges. Miller was found guilty of twenty-one counts of using a communication device to facilitate a drug-trafficking offense. The jury acquitted Miller of a count of PCP distribution and several counts of communication offenses. The jury was hung on the remaining counts against Miller, and the judge declared a mistrial on those.

Following the mistrial, the government moved to join Miller to the second group of defendants, scheduled to go to trial in October 2006. Miller opposed the motion because his court-appointed counsel from the first trial, Brian McDaniel, was unavailable. Rather than delay the trial of the entire second group or hold a separate trial for Miller, the court appointed Thomas Saunders to represent Miller.

On October 3, 2006, the second group of defendantsRobert Bryant, Alvin Gaskins, Gerald Eiland, and Frederick Miller—proceeded to trial. On November 15, 2006, the jury acquitted Bryant, the alleged PCP supplier for the conspiracy, of all charges. The jury found Gaskins guilty of narcotics conspiracy with regard to heroin only and acquitted Gaskins of all other charges. This court later reversed Gaskins's conviction as resting upon insufficient evidence. United States v. Gaskins, 690 F.3d 569 (D.C.Cir.2012). The jury found Eiland guilty of narcotics conspiracy (Count 1) with the object of distributing heroin, cocaine, and cocaine base, but not PCP; RICO conspiracy (Count 2); continuing criminal enterprise (CCE) (Count 3); attempt to possess with intent to distribute heroin (Count 4); and three counts of unlawful use of a communication facility. The jury found Eiland not guilty of six other communications counts and an accessory to murder charge. Miller was convicted of narcotics conspiracy (Count 1) with regard to heroin, cocaine, and cocaine base, but not with regard to PCP; RICO conspiracy (Count 2); CCE (Count 3); attempt to possess with intent to distribute heroin (Count 5); and three counts of unlawful use of a communication facility. The jury found Miller not guilty of attempt to possess with intent to distribute PCP and five additional communications counts.

Thus, the jury found the government had proved Miller and Eiland conspired to traffic heroin, cocaine, and cocaine base and committed the racketeering acts and CCE predicate offenses involving those same narcotics. But the jury found the government had not proved the charged offenses and acts involving the trafficking of PCP.

At appellants' sentencing hearings, the district court dismissed the narcotics conspiracy charges against Miller and Eiland as lesser-included offenses of the CCE counts. The court sentenced each to concurrent sentences of life imprisonment for RICO conspiracy and CCE, and lesser terms of imprisonment on the other counts. The court imposed a $7,000 fine on Miller for Counts 2 and 3. Sentencing (Miller) Tr. at 7, Nov. 28, 2007.1 It imposed a $7,000 fine on Eiland for Count 1. Sentencing (Eiland) Tr. at 11, Nov. 28, 2007. Eiland and Miller filed timely notices of appeal. This court decided to hear the appeal arising out of the second trial separately from the appeal of the first trial.2

II. Admissibility of Wiretap Evidence

Eiland and Miller cite several reasons the wiretap evidence should have been suppressed. We address these arguments in turn.

An application for an order authorizing a wiretap must contain certain information, including “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). A district court may authorize a wiretap after assessing both probable cause and necessity and finding:

(1) probable cause exists to believe that an individual has committed or is about to commit one of certain enumerated offenses; (2) probable cause exists to believe that particular communications concerning that offense will be obtained through an interception; (3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried; and (4) probable cause exists to believe that the communication facility sought to be wiretapped is being used, or is about to be used, in connection with the commission of the offense.

United States v. Carter, 449 F.3d 1287, 1292 (D.C.Cir.2006) (citing 18 U.S.C. § 2518(3)). An initial wiretap may be approved for a maximum of thirty days and may be extended for additional thirty-day periods upon a finding of continued probable cause and necessity. 18 U.S.C. § 2518(3), (5).

The probable cause standard for the wiretap statute is the same as the standard for a search warrant. See United States v. Fairchild, 189 F.3d 769, 775 (8th Cir.1999); United States v. Diaz, 176 F.3d 52, 110 (2d Cir.1999); United States v. Armendariz, 922 F.2d 602, 608 (10th Cir.1990); United States v. Nixon, 918 F.2d 895, 900 (11th Cir.1990). The determination requires the authorizing court “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [it], including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

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