United States v. Miller

• Decision Date: 27 December 2013
• Docket Number: Nos. 07–3135,07–3139.,s. 07–3135
• Citation: 738 F.3d 361
• Parties: UNITED STATES of America, Appellee v. Frederick MILLER, Timothy R. Thomas, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

738 F.3d 361

UNITED STATES of America, Appellee

v.Frederick MILLER, Timothy R. Thomas, Appellants.

Nos. 07–3135, 07–3139.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 4, 2013.

Decided Dec. 27, 2013.

Appeals from the United States District Court for the District of Columbia (No. 04cr00379–02) (No. 04cr00379–03).

Dennis M. Hart, appointed by the court, argued the cause and filed the joint brief for appellant Frederick Miller.

David B. Smith, appointed by the court, argued the cause and filed the joint brief for appellant Timothy R. Thomas.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him 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 ROGERS.

ROGERS, Circuit Judge:

Frederick Miller, Gerald Eiland, and Timothy R. Thomas appeal their convictions stemming from a narcotics distribution scheme in Southeast, Washington, D.C. between 1999 and 2004. They and six others were indicted, and the district court conducted two trials. Miller and Thomas, along with Corey Moore, were tried first, and this opinion addresses Miller's and Thomas' challenges to their convictions. Miller was also part of the second trial involving Eiland with respect to the counts on which the jury hung at the first trial. Today the court issues simultaneous opinions in these complex cases addressing all of the challenges to the convictions.

Miller and Thomas challenge their convictions on multiple grounds, including that the district court erred in denying their motions to suppress the evidence obtained by the government through wiretaps placed on Miller's and Eiland's cell phones. This opinion incorporates the holding in United States v. Eiland, 738 F.3d 338, 347–51, Nos. 07–3131 & 11–3001, 2013 WL 6818386, *4–7 (D.C.Cir. Dec. 27, 2013), that the district court did not abuse its discretion in denying the defense motions to suppress the wiretap evidence. Miller and Thomas also contend that the district court erred in permitting “overview” and lay opinion testimony by government agents, and testimony of a jailhouse confidant about their coconspirators' statements. Further, they contend the district court erred in limiting the cross-examination of a key cooperating government witness, and in denying Thomas' motion for judgment because there was insufficient evidence to convict him of one of the communication facility counts and a corresponding racketeering act. They contend as well that the district court erred in allowing unredacted tape recordings and tape recordings of their phone calls not played at the trial to go to the jury, and also impermissibly interfered with the jury's deliberations by responding to jury notes in a manner that instructed the jury about the grand jury's intent. In their reply brief, they contend the responses improperly amended the superceding indictment. They have withdrawn their Jencks/ Brady challenge but contend the cumulative effect of the district court's errors requires reversal of their convictions.

We hold that Miller's and Thomas' evidentiary challenges and their contention regarding the submission of unplayed and unredacted phone calls fail to demonstrate that reversal of their convictions is warranted; such errors as occurred were harmless for lack of substantial prejudice. We further hold that the district court's responses to jury notes impermissibly interfered with the jury's independent role as the finder of fact, and we vacate the convictions on the tainted counts. The government concedes that the district court erred in imposing Thomas' sentences of life imprisonment in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and we vacate his life sentences for narcotics conspiracy and RICO conspiracy. Accordingly, we remand the case for resentencing and otherwise affirm the judgments of conviction.

I.

In March 2003, a joint task force of the Federal Bureau of Investigation (“FBI”) and the D.C. Metropolitan Police Department began an investigation into a suspected narcotics distribution operation in Southeast, Washington, D.C. As a result of physical surveillance, use of cooperators, pen registers and toll records, undercover drug purchases, and execution of search warrants, the investigators suspected that Miller and Eiland were partners in drug distribution with at least ten others, among them Thomas. Upon obtaining judicial authorization of wiretaps, the investigators intercepted calls made on the cell phones used by Miller and Eiland between February and June 2004.

The government's evidence, as relevant here, showed that Miller used several individuals as couriers of money and drugs. Between October 2003 and January 2004, Miller recruited his cousin Charles Brown to make five trips to Kansas City, Missouri to carry money. Miller also recruited Brown to make a similar trip to Los Angeles, California to carry money to Robert Bryant, whom investigators suspected of supplying Miller with PCP. On March 10, 2004, when Brown was scheduled to go to Los Angeles for Miller, he was stopped at the airport by Drug Enforcement Administration agents who seized $30,775 in cash from his person. In April 2004, Miller again recruited Brown, arranging for a package of heroin to be sent to Brown's residence; the package was intercepted by law enforcement officials who arranged a controlled delivery of the package to Brown's residence.

Tyrone Thomas (hereinafter “Tyrone,” and no relation to Timothy R. Thomas) also acted as a courier for Miller. He was introduced to Miller by Thomas in 2000. In May or June 2003, Tyrone drove from Atlanta, Georgia to Los Angeles to meet with Miller and Bryant, who were planning to purchase PCP. After Tyrone returned to Atlanta, Bryant sent him a package of PCP to take to Miller in the District of Columbia. In March 2004, Tyrone transported a batch of “no good” PCP from the District of Columbia to Bryant in Kansas City. In March 2004 Miller also recruited Tyrone to act as a courier in regard to a purchase of four kilograms of powder cocaine in Phoenix, Arizona. Tyrone drove from Atlanta to meet with Miller and Thomas to discuss the new venture. Thomas then drove Tyrone to Eiland's apartment in Alexandria, Virginia, where Eiland instructed Tyrone to take $50,000 to Phoenix where he would meet Eiland. In Phoenix, Eiland retrieved the funds and purchased four kilograms of powder cocaine, and then gave the drugs to Tyrone to transport to the District of Columbia. Wary of law enforcement, Tyrone put the drugs in a bag that he checked onto a Greyhound bus bound for Richmond, Virginia. When he arrived in Richmond three days later, Tyrone learned the bag had not arrived. The bag arrived two days later, on March 23, 2004, and Tyrone called to let Miller, Eiland, and Thomas know that he would be arriving shortly in the District of Columbia. Within thirty minutes of leaving Richmond, law enforcement officials stopped Tyrone's car and seized the four kilograms of cocaine in the trunk.

Tyrone spoke that day with the FBI and agreed to cooperate with law enforcement by making recorded phone calls to Thomas regarding the four kilograms of cocaine. During these calls, Tyrone communicated a law-enforcement improvised ruse. He initially told Thomas that the bag had been delayed and then lost in the Greyhound baggage system. Thomas expressed his anger that Tyrone allowed the bag out of his sight, suggested the bag had been stolen by Greyhound employees or seized by law enforcement, and warned Tyrone that he would have to pay for the lost drugs. Tyrone, as instructed by the FBI, also arranged to send Thomas a facsimile copy of his baggage claim ticket. On May 3, 2004, the FBI intercepted a call in which Tyrone told Thomas that he had located the bag in Spartanburg, South Carolina but the cocaine was missing. When other intercepted calls indicated that Miller, Eiland, and Thomas suspected that Tyrone had stolen the cocaine, the investigators told Tyrone to confirm his cohorts' suspicions. In a May 4, 2004 call, Tyrone admitted to Thomas that he had stolen the cocaine but offered to return one kilogram in recognition of their past friendship. Thomas agreed to have Tyrone leave the cocaine at a hotel room where he could retrieve it. Investigators set up a reverse sting on May 19, 2004, planting the kilogram in a hotel room in Alexandria. When one of Thomas' associates, Greta Frank, came to the room and retrieved the cocaine, she was arrested.

Search warrants were executed between May and July 2004. Recovered from Miller's house and his aunt's house (which Miller frequently used) were tools of the drug trade, including drug packaging materials and two bulletproof vests. Recovered from Thomas' apartment were a digital scale, counterweights, small empty ziploc bags and ziploc bags containing 0.41 grams of cocaine, a “Cocaine Handbook,” and a telephone “bug” detector.

On March 20, 2006, the grand jury returned a superceding 71–count indictment against Miller, Eiland, Thomas, and six codefendants. Miller and Thomas were charged with conspiracy to distribute and possess with intent to distribute narcotics, 21 U.S.C. § 846; conspiracy to violate the RICO Act, 18 U.S.C. § 1962(d); distribution, possession, and attempted possession with intent to distribute (“PWID”) narcotics, 21 U.S.C. §§ 841(a)(1), 841(b)(1), 846; unlawfully using a communication facility, 21 U.S.C. § 843(b); conspiracy to commit murder, D.C. CODE §§ 22–1805a, 22–2101; and conspiracy to murder in aid of racketeering activity, 18 U.S.C. § 1959(a)(5). Miller was also charged with engaging in a continuing criminal enterprise (“CCE”), 21 U.S.C. § 848(a)-(b). See also Eiland, 738 F.3d...