United States v. Mosley

• Decision Date: 18 November 2022
• Docket Number: s. 21-1136/1404/1408/2730
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Anthony MOSLEY (21-1136); Stacey Parcell Gibson (21-1404); Troy Edward Bush (21-1408); Ricardo Mercado-Lozano (21-2730), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

53 F.4th 947

UNITED STATES of America, Plaintiff-Appellee,

v.Mark Anthony MOSLEY (21-1136); Stacey Parcell Gibson (21-1404); Troy Edward Bush (21-1408); Ricardo Mercado-Lozano (21-2730), Defendants-Appellants.

Nos. 21-1136/1404/1408/2730

United States Court of Appeals, Sixth Circuit.

Argued: July 21, 2022

Decided and Filed: November 18, 2022

ARGUED: Stephenie Lape Wolfinbarger, STEPHENIE LAPE WOLFINBARGER, PLLC, Cincinnati, Ohio, for Appellant in 21-1136. Timothy F. Sweeney, LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland, Ohio, for Appellant in 21-1404. Paul L. Mitchell, PAUL L. MITCHELL, P.L.L.C., Grand Rapids, Michigan, for Appellant in 21-2730. Vito S. Solitro, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Stephenie Lape Wolfinbarger, STEPHENIE LAPE WOLFINBARGER, PLLC, Cincinnati, Ohio, for Appellant in 21-1136. Timothy F. Sweeney, LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland, Ohio, for Appellant in 21-1404. Paul L. Mitchell, PAUL L. MITCHELL, P.L.L.C., Grand Rapids, Michigan, for Appellant in 21-2730. Lawrence J. Phelan, Walker, Michigan for Appellant in 21-1408. Daniel T. McGraw, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: SUTTON, Chief Judge; KETHLEDGE and READLER, Circuit Judges.

READLER, J., delivered the opinion of the court in which SUTTON, C.J., joined in full, and KETHLEDGE, J., joined in part. KETHLEDGE, J. (pp. 967 – 68), delivered a separate opinion concurring in part and dissenting in part.

CHAD A. READLER, Circuit Judge.

Troy Bush, Stacey Gibson, Ricardo Mercado-Lozano, and Mark Mosley challenge their respective convictions and sentences arising from a cocaine, fentanyl, heroin, marijuana, and methamphetamine drug distribution conspiracy. We agree with Gibson that his post-conviction letter to the district court asserting a perfunctory denial of guilt was an improper basis to impose a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Otherwise, we reject defendants’ arguments and affirm their convictions and sentences.

I.

A few years ago, federal, state, and local law enforcement agencies began investigating Andrew Bravo for drug trafficking. Over time, those investigatory efforts revealed that Bravo sat at the head of an interstate drug trafficking organization. The organization operated as follows: a contact in Mexico connected Bravo to drug suppliers, one of whom was Mercado-Lozano. When Bravo received drugs from those suppliers, he would route them to associates for distribution. Those associates included Bush, Gibson, and Mosley.

Each man played a different role within Bravo's organization. Bush maintained one of Bravo's stash houses, tended to a marijuana grow on the property, and occasionally distributed drugs on Bravo's behalf. Gibson was a street-level drug dealer who bought distribution quantities of cocaine from Bravo on five or six occasions. Mercado-Lozano, a 14-year veteran of the Sinaloa Cartel, was one of Bravo's methamphetamine suppliers. Mosley bought distribution quantities of cocaine, fentanyl, heroin, and marijuana from Bravo and sold them. After a two-year investigation, a federal grand jury indicted Bravo, Bush, Gibson, Mercado-Lozano, and Mosley for violating federal drug laws. From there, defendants’ prosecutions diverged. We take them in turn.

II. Bush

Bush's appeal takes aim at the second reauthorization of a wiretap used to collect evidence against Bravo's coconspirators, including Bush.

The grand jury charged Bush with three violations of federal criminal drug laws. Much of the evidence the government relied on in pursuing those charges derived from a twice-reauthorized wiretap of Bravo's telephonic communications that captured conversations with and about Bush as well as other coconspirators. Bush moved to suppress the wiretap evidence. When that motion was denied, Bush agreed to plead guilty to a drug conspiracy count in exchange for dismissal of the other two counts. In so doing, Bush preserved his right to appeal the suppression issue.

Consistent with his plea agreement, Bush asks us to answer one question: did the district court abuse its discretion in reauthorizing the wiretap of Bravo's phone for the second time? See United States v. Gardner , 32 F.4th 504, 514 (6th Cir. 2022). In our view, it did not.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 – 2520, regulates the government's use of wiretaps. An application to intercept wire communications must, among other things, "include ... a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1)(c). To satisfy this "necessity" requirement, the government must show (1) the wiretap is not the investigation's "initial step," (2) traditional techniques would not suffice, and (3) if investigators rely on prior experiences in explaining the inadequacy of traditional techniques, those experiences relate "to the particular facts of the investigation at hand." Gardner , 32 F.4th at 515–17 (citation omitted). And as the application here was a second request to extend a previously issued wiretap, a fourth mandatory showing applied: the government's application needed to include any fruit borne by the initial wiretap or have reasonably explained why those efforts came up barren. 18 U.S.C. § 2518(1)(f).

In deeming the reauthorized wiretap necessary, the reauthorizing judge did not act outside of his "considerable" discretion in granting the government's request. United States v. Young , 847 F.3d 328, 343 (6th Cir. 2017) (quoting United States v. Stewart , 306 F.3d 295, 304 (6th Cir. 2002) ). To begin, the reauthorization was not the investigators’ "initial step." Gardner , 32 F.4th at 515. Before seeking this wiretap, law enforcement agents had investigated Bravo and his cohort for over two years through physical surveillance, cooperating sources, telephone toll records, and GPS tracking devices, in addition to the deployment of two other previously approved wiretaps.

Despite using these timeless tools of policework, the team of investigators had more work to do. Their goal was "to obtain evidence to fully prosecute all the members of" Bravo's organization. The probe had identified several coconspirators. Still, investigators had not yet sussed out all members of the conspiracy, identified Bravo's sources of supply and customers, or unearthed how Bravo was laundering drug money.

And traditional methods would not fill the gap. The application detailed twelve categories of customary tools that law enforcement had considered and rejected as deficient. Throughout, investigators connected their experience to the facts of the case they were building. Physical surveillance would not suffice, for example, because of the likelihood of detection, difficulty in trailing Bravo's car, and isolated locations of some stash houses. Bravo had also engaged in "cleaning," an evasive tactic known to investigators from previous work. Making matters worse, confidential and cooperating sources had dried up. Even where those sources had been interviewed, the information uncovered proved inadequate. And undercover officers were a non-starter because Bravo kept a tight circle. In short, the application drew upon specific factual elements of the investigation at hand in determining that traditional methods would not meet the investigation's unfulfilled goals. Taking all of this together, the reauthorizing judge acted within his discretion in finding that the government had satisfied § 2518(1)(c) ’s necessity and extension requirements. See id. at 517–18.

Bush disagrees. To his mind, necessity was lacking because, at the time of the second extension, the government had "largely achieved" or "arguably already acquired sufficient admissible evidence" to achieve its objectives. This argument, however, effectively concedes the point. The necessity yardstick does not measure how much of the government's investigatory goals have been achieved. It instead asks whether, as a binary matter, the government has met its investigatory goals. See id. at 515 & n.1 (collecting "a litany of cases" rejecting arguments like Bush's). And by Bush's own characterization, it had not.

Bush points to § 2518(5) ’s requirement that the wiretap terminate "upon attainment of the authorized objective[.]" Bush asserts that neither the government nor the district court abided by that limitation. Yet the record tells a different tale. The government explained in its wiretap application that its goal was "to obtain evidence to fully prosecute all the members of the BRAVO [organization]." The district court's wiretap authorization, in turn, aligned with that objective and accordingly with § 2518(5) by authorizing intercepts to continue "after the first interception" and "until all communications are intercepted" that "reveal fully the manner" of the conspiracy. We thus see no conflict between § 2518(5) and the wiretap reauthorization.

Finally, Bush asks that we construe § 2518 to require heightened scrutiny when the government seeks reauthorization of an existing wiretap. Yet Bush identifies no legal authority suggesting as much. Nor does he identify a textual basis for doing so. True enough, to satisfy § 2518 by its terms, the government's extension application must apprise the reviewing judge of the initial wiretap's fruits. See 18 U.S.C. § 2518(1)(f), (5). Here, however, there is no dispute that the government did so.

III. Gibson

A. In his appeal, Gibson disputes both the sufficiency of the evidence supporting his conviction as well as his ensuing sentence.

The grand jury charged Gibson with one count each of conspiring to manufacture, distribute, and possess with intent to distribute controlled substances; and possessing cocaine with intent to distribute it. See 21 U.S.C. §§ 846, 841(a)(1). He pleaded not...