United States v. Gibson

• Citation: 996 F.3d 451
• Decision Date: 30 April 2021
• Docket Number: Nos. 20-1236,20-2234,s. 20-1236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David GIBSON and Jerry Harris, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

996 F.3d 451

UNITED STATES of America, Plaintiff-Appellee,

v.David GIBSON and Jerry Harris, Defendants-Appellants.

Nos. 20-1236

20-2234

United States Court of Appeals, Seventh Circuit.

Argued January 21, 2021

Decided April 30, 2021

Rehearing En Banc Denied June 28, 2021

Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff - Appellee

Michael Bernard Nash, Attorney, Chicago, IL, for Defendant - Appellant

Before Sykes, Chief Judge, and Manion and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

An informant gave South Bend police the number to a phone that drug dealers in the South Bend area were supposedly using to sell drugs. To confirm this tip, officers carried out a series of controlled buys in which confidential informants or undercover officers called the number and followed instructions to buy heroin. Relying on the controlled buys, officers submitted an affidavit to a state court judge requesting an order for the phone's service provider to share 30 days of precise, real-time GPS location data for the phone. The state court judge issued a "court order" granting the request. Relying on similar affidavits, officers later obtained two more court orders authorizing an additional 60 days of real-time tracking.

The investigation ultimately led officers to two men at the top of the drug-trafficking conspiracy: David Gibson and Jerry Harris. Both defendants were federally indicted for conspiring to distribute heroin. Before trial, the district court denied their motion to suppress evidence obtained through the cellphone tracking. The court treated the state court orders as valid search warrants for the tracking. At trial, officers and cooperators testified to the large-scale drug-trafficking scheme that the defendants had overseen. The jury ultimately convicted both defendants of conspiring to distribute one kilogram or more of heroin. At sentencing, the district court found that the defendants had conspired to distribute a total of 10.5 kilograms of heroin. The defendants now appeal the court's denial of their motion to suppress. Harris also challenges the drug-quantity calculations at trial and sentencing, the court's limits on his cross-examination of the cooperators at trial, and his sentence. We affirm the district court's well-reasoned rulings across the board.

I. Background

A. The Investigation

In late 2016 Ryan Williams was charged in Indiana state court for selling drugs. In March 2017, as an act of cooperation, Williams provided South Bend police the number to a phone (ending in -5822) that, he claimed, drug dealers in the South Bend area used to sell drugs. Over the next several months, officers made 28 controlled buys using the phone number. In these controlled buys, a confidential informant or undercover officer would call the number and follow instructions to buy heroin. Each controlled buy involved half-gram increments of heroin. Different dealers, including Williams himself on occasion, would show up to deliver the drugs. The dealers would sell indiscriminately to anyone who called the number. At meeting spots, cars lined up to buy drugs.

A few months into the investigation, officers sought to establish surveillance of the phone's location. In July 2017, officers submitted an affidavit to an Indiana state court judge requesting an order for Sprint, the phone's service provider, to supply 30 days of precise, real-time GPS location data for the phone. The affidavit described two separate controlled buys in which a confidential informant had called the phone and met someone who sold him heroin. One of the controlled buys had occurred two and a half months earlier; the other had occurred the day before. The affidavit did not cite Federal Rule of Criminal Procedure 41 (which governs search warrants based on probable cause). Indeed, the affidavit did not mention probable cause at all. Instead, it cited federal statutes governing the installation of mobile tracking devices, pen registers, and trap and trace devices. See 18 U.S.C. §§ 3117, 3124.

Based on the affidavit, an Indiana judge signed a "court order" finding probable cause to believe that the user of the -5822 phone had engaged in illegal drug possession and trafficking, and that precise tracking of the phone's location would facilitate the user's apprehension. Thus, the judge ordered Sprint to supply 30 days of precise, real-time GPS location data for the phone. As authority for the order, the judge cited Rule 41, the Stored Communications Act, see 18 U.S.C. § 2703, and the federal statutes governing mobile tracking devices, pen registers, and trap and trace devices, see 18 U.S.C. §§ 3117, 3123, 3124. Per the order, Sprint gave officers 24-hour access to the phone's precise location for 30 days.

At the end of the 30-day period, officers submitted a second affidavit, requesting 30 more days of real-time cellphone tracking. The affidavit explained that, since obtaining the first court order, officers had carried out several more controlled buys using the same phone number. It described one of them in detail. The affidavit added that "this is a very complex organization with approximately fifteen members who utilize the [phone] to facilitate drug trafficking." In all other respects, the second affidavit mirrored the first. Based on the affidavit, the state court judge signed another order, essentially identical to the first, authorizing 30 more days of real-time cellphone tracking.

The same series of events happened one more time. At the end of the second 30-day period, officers submitted a third affidavit, requesting 30 more days of GPS tracking data for the phone. This affidavit closely resembled the second one. It described in detail "one of several undercover officer buys" made in the previous 30-day period. The state court judge signed another materially identical order authorizing 30 more days of real-time cellphone tracking.

Officers eventually recovered the -5822 phone in October 2017 when they pulled over a man named Raymond Love for a traffic violation. Love had two "flip phones" on him, including the -5822 phone. Throughout the traffic stop, both phones rang nonstop.

While tracking the -5822 phone, officers observed that it was located at various times in houses that they later connected to Gibson and Harris. Officers executed a search warrant on the home associated with Harris, where they found a digital scale and almost $4,000 cash.

B. Charges and Motion to Suppress

A federal grand jury indicted Gibson and Harris with one count of conspiring to distribute more than one kilogram of heroin between March and October 2017. See 21 U.S.C. §§ 841(b)(1)(A), 846. Before trial, the defendants moved to suppress all evidence obtained through the phone tracking. They maintained that officers could not track the phone without a search warrant. Following a hearing, the district court denied the defendants’ motion to suppress. It ruled that the state court orders were valid warrants for the phone tracking.

C. Trial

The cases against Gibson and Harris were consolidated for trial. Various law enforcement officers testified, as did a few cooperating witnesses who had participated in the drug-trafficking conspiracy. Two of these cooperators were Williams and Loveless Daniel Naylor. Like Williams, Naylor was one of the street-level dealers who sold drugs directly to calling customers. Before the defendants went to trial, Williams pled guilty to conspiring to distribute one kilogram or more of heroin. Naylor pled guilty to possession with intent to distribute heroin.

Williams testified to the details of the drug-trafficking operation. Gibson ran the operation and Harris was his "right-hand man." There were 20 to 25 dealers who worked in shifts. Gibson or Harris gave the dealers phones and "packs" of drugs to sell. The packs contained 22 to 24 individually packaged half-gram bags of heroin. A single dealer could go through as many as five or six packs on a weekend day. Most customers bought between one and ten half-gram bags at a time, but some bought up to fifteen. There were two phone numbers that customers could call: the -5822 number and another number ending in -9243. Williams testified that a transaction required, at most, "probably about three" phone calls. An officer involved in the controlled buys testified that a successful buy generally required between one and four calls, though sometimes more were necessary. Naylor testified similarly regarding the details of the drug-trafficking operation. He added that, between March and October 2017, Gibson gave him between 600 and 700 grams of heroin to sell.

Over Harris's objection, the court forbade defense counsel from cross-examining the cooperating witnesses about the specific sentences they hoped to avoid by testifying for the government. The court explained that defense counsel could ask about mandatory minimums and "substantial sentences" but could not reference specific terms of imprisonment. Otherwise the jury might infer what sentences the defendants themselves would receive if convicted.

The government introduced only 6.5 grams of heroin at trial. To prove the full quantity of drugs involved in the conspiracy, the government called DEA Task Force Officer Joseph Focosi. Officer Focosi used two different formulas to calculate drug quantity. First, he relied on Williams's testimony that he alone could sell up to six "packs" per day, with each pack containing 22 to 24 half-gram bags. Assuming that the dealers sold only one pack per day, and rounding the amount of heroin in a pack down to 10 grams, Officer Focosi testified that the dealers would have sold 2.1 kilograms of heroin over a seven-month period (10 grams x 210 days = 2,100 grams). Defense counsel did not object to this testimony.

Officer Focosi's second formula extrapolated drug quantity from phone calls. A DEA analyst had testified that, from the end of March 2017 through mid-October 2017, there were about 50,000...