United States v. Kendrick, 091420 FED5, 19-30375

Docket Nº:19-30375
Opinion Judge:CARL E. STEWART, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. TROY KENDRICK, JR., also known as 99, Defendant-Appellant
Judge Panel:Before STEWART, DENNIS, and HAYNES, Circuit Judges.
Case Date:September 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

TROY KENDRICK, JR., also known as 99, Defendant-Appellant

No. 19-30375

United States Court of Appeals, Fifth Circuit

September 14, 2020

Appeal from the United States District Court Eastern District of Louisiana, New Orleans

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

ON PETITION FOR REHEARING

CARL E. STEWART, Circuit Judge

IT IS ORDERED that the petition for panel rehearing is DENIED and our prior panel opinion, United States v. Kendrick, 967 F.3d 487 (5th Cir. 2020), is WITHDRAWN. The following opinion is SUBSTITUTED therefor.

Defendant-Appellant Troy "99" Kendrick was charged and convicted of conspiracy to distribute cocaine base ("crack cocaine") and possession of a firearm by a convicted felon. He now contests the Government's Title III wiretap that intercepted calls and text messages from his phone, the sufficiency of the evidence on his drug conspiracy conviction, the district court's sentencing enhancement for possessing a firearm, and the effectiveness of counsel. We affirm.

I.

The context surrounding Kendrick's Title III wiretap, motion to suppress, and jury trial and subsequent sentencing are set forth below.

A.

Wiretap and Search Warrant

The wiretap events are drawn from Drug Enforcement Administration (DEA) Special Agent (SA) Scott Arseneaux's supporting warrant affidavits.

1. The Garrick Jones Surveillance and Wiretap.

The DEA and St. John Parish Sheriff's Office (SJPSO) initially investigated Kendrick's co-defendant Garrick "Gnu" Jones and used a reliable confidential source/informant to surveil Jones distributing crack cocaine. The narcotics transactions involving the informant and Jones occurred on January 4 and February 17 of 2016, and on March 10, the informant was involved in a physical altercation with Jones. • January 4: The DEA and SJPSO officials witnessed the informant contact Jones at his phone number, Telephone #1, 1 to arrange meetings to purchase crack cocaine. The informant met with Jones at Jones's Reserve, Louisiana home and purchased 12 grams of crack cocaine. According to the informant, he witnessed Jones initially meet Kendrick in the front of Jones's home to purchase crack cocaine before subsequently selling the narcotics to the informant.2

• February 17: The DEA and SJPSO again observed the informant contact Jones (via Telephone #1) to arrange a meeting to purchase a half-ounce of crack cocaine from Jones. Once the informant and Jones agreed to meet, the DEA and SJPSO surveillance units followed the informant as he or she traveled to Jones's home wearing a recording device. After the informant arrived at Jones's residence, the DEA and SJPSO observed Jones walk to the next-door neighbor's home to meet with an unknown individual, who was later identified as Kendrick.3After meeting with Kendrick, Jones returned to his residence to complete his transaction with the informant that was for approximately 12 grams of crack cocaine.

• March 10: The DEA and SJPSO directed the informant to contact Jones to purchase more crack cocaine, but Jones never responded. Later that day, co-defendant Travis "Tree" Carter (1) contacted the informant; (2) informed the informant that Carter would be taking over for Jones; and (3) told the informant to meet him at another Reserve location. The informant met with Carter and shortly thereafter, sent a distress signal to the DEA and SJPSO. The DEA and SJPSO officials arrived and witnessed Jones and Carter fleeing the scene after attempting to assault the informant with a piece of lumber. Jones and Carter were arrested and subsequently released because the informant did not want to press charges in fear of retaliation.

In late April, SA Arseneaux attested to the foregoing investigative facts as a basis for probable cause to obtain a wiretap on Jones's Telephone #1. A district judge signed an order authorizing the Title III wire intercepts, and on May 12, the DEA officials began monitoring Telephone #1. • May 12: The DEA agents intercepted an incoming 4:07 p.m. call from an unidentified woman calling Jones. The unidentified woman asked for "a dime," and Jones confirmed that he was in possession of one. A minute later (4:08 p.m.), Jones sent a text message to a number associated with Telephone #2, which the authorities determined was Kendrick's telephone number. Jones's text message asked Kendrick where he was located, and Kendrick responded: "leaving Home Depot."

• May 17: The DEA agents intercepted an incoming 9:32 a.m. call from another woman calling Jones. During the call, Jones described a recent situation where he "flushed everything [he] had last night" because he was supposedly concerned about law enforcement surrounding his home. The caller then inquired as to whether Jones "re-up['ed]," and Jones stated that he was "waiting on my [sic] to come through right now." Five minutes after the call ended (9:37 a.m.), the agents intercepted an outgoing call from Jones to Telephone #2, where Kendrick picked up and greeted Jones. Jones replied that he "need[ed] [Kendrick] til tomorrow man" to which Kendrick stated, "I got you." Jones subsequently sent an outgoing 3:31 p.m. text message to the number that called him at 9:32 a.m., stating "I'm back gud."

• May 20: Jones sent an outgoing 5:00 p.m. text message to Telephone #2, stating "Bring me 1." At 5:48 p.m., Kendrick (using Telephone #2) called Jones, asking Jones where Jones was currently located. Jones informed Kendrick that he was "in the truck with Tree [and that he was] coming to get that [in a] little bit, man." Kendrick told Jones that he was at a Valero gas station and Jones confirmed that he was "about to be coming to get that."

2. The Kendrick Wiretap.

Based on the foregoing intel, SA Arseneaux submitted a Title III wiretap affidavit in which he attested and analyzed the investigative facts to conclude (based on his experience) that Jones relied on Kendrick as his drug supplier. He also believed that there was probable cause to monitor Kendrick's Telephone #2, and on June 13, the Title III wiretap request was granted (via court order) for a 30-day window. • June 13: The DEA agents intercepted an incoming 3:59 p.m. text message from Kendrick to Jones, stating "Wya"-which is a common acronym for "where you at." One minute later (4:00 p.m.), the agents intercepted an incoming text message from Jones to Kendrick, stating "Da Crib. I need 1," and within seconds, Kendrick replied via text message, "[c]oming."

• June 22: The DEA agents intercepted an incoming 9:06 p.m. text message from Jones to Kendrick, asking "U around", and at 9:12 p.m., Kendrick sent outgoing text message replying "Yes." At 9:15 p.m., Jones responded (via text message) that he "need[s] 1."

• June 23: The DEA agents intercepted a series of text messages between Jaden "Jordy" Robertson and Kendrick, which included, in relevant part: an incoming 3:25 a.m. text from Robertson stating "Wats man? I will have something today for u," and an outgoing 8:01 p.m. text message from Kendrick to Robertson stating, "Hey I need to buy 1 too."

3. The Search Warrant and Kendrick Arrest.

Given the incriminating wiretap communications and other events (including, inter alia, Jones's drug transactions with the informant and the assault of the informant in March), SA Arseneaux concluded that based on his experience, Kendrick was Jones's supplier. He also believed there was probable cause to search Jones's and Kendrick's adjacent homes for evidence of drug trafficking. A search warrant application was presented to a magistrate judge, and the judge authorized the search.

In executing the warrant on Kendrick's home, the DEA officials located and seized: (1) a digital scale located on Kendrick's person; (2) two bottles of mannitol; (3) scattered cash amounting to roughly $10, 000; (4) one loaded firearm; (5) an invoice listing items commonly used for growing marijuana; (6) packaging material; (7) a money counting machine; (8) a bulletproof vest; and, (9) concealed under the floorboard in the bedroom closet, a compartment that contained four handguns, ammunition, cash, a ski mask, and gloves. No narcotics were seized.

The DEA agents arrested Kendrick (along with his co-defendants Jones, Carter, Michael Sanders, and Reshad Frank), and a grand jury indicted them in a nine-count complaint for offenses related to drug trafficking.

B.

Motion to Suppress

Kendrick moved to suppress the evidence recovered from the Title III wiretaps.4 Kendrick's main argument focused on a discrepancy between SA Arseneaux's affidavit and a SJPSO police report describing the January 2016 transaction involving the informant and Jones. While the informant stated that Jones met with Kendrick during that drug transaction (see, supra, Sect.A.1), this police report stated that "the individual that was present . . . was in fact [codefendant] Travis Carter," not Kendrick. Kendrick claims that the Government deliberately misidentified him. In response, the Government posited that all the wiretaps were supported by probable cause and Kendrick's arguments point to SA Arseneaux's credibility, which is a jury question.

The district court held a hearing to determine whether Kendrick...

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