United States v. Thompson

• Decision Date: 28 August 2012
• Docket Number: Nos. 11–1765,11–2604.,11–2124,11–1813,s. 11–1765
• Citation: 690 F.3d 977
• Parties: UNITED STATES of America, Plaintiff–Appellee v. George Wylie THOMPSON, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Ralph Francis Deleo, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Samuel Gaylon Baggett, Defendant–Appellant. United States of America, Plaintiff–Appellee v. George Wylie Thompson, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

690 F.3d 977

UNITED STATES of America, Plaintiff–Appellee

v.George Wylie THOMPSON, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Ralph Francis Deleo, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Samuel Gaylon Baggett, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.George Wylie Thompson, Defendant–Appellant.

Nos. 11–1765, 11–1813, 11–2124, 11–2604.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 14, 2012.

Filed: Aug. 28, 2012.

Jason Files, Joseph B. Hendrix, argued, Little Rock, AR, for appellant George Thompson.

Timothy Cullen, argued, Little Rock, AR, for appellant Ralph Deleo.

John W. Hall, Jr., argued, Little Rock, AR, for appellant Samuel Baggett.

Patrick C. Harris, AUSA, argued, Little Rock, AR, for appellee in No. 11–1765 and 11–1813.

Karen Whatley, AUSA, argued, Little Rock, AR, for appellee in No. 11–2124 and 11–2604.

Before LOKEN, BYE, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

George Thompson, Samuel Baggett, and Ralph Deleo appeal their criminal convictions for offenses connected to illegal gambling, drug trafficking, firearms, and marriage fraud. On appeal, Thompson, Baggett, and Deleo assert error from lack of suppression of wiretap evidence, error from improper joinder of Baggett's and Thompson's cases, erroneous refusal to exclude evidence of Thompson's criminal history and travel to China, and error from a determination that federal officers acted within the scope of a search warrant when searching Deleo's apartment. Deleo also argues that we should consider his ineffective assistance of counsel claim on direct appeal, and Thompson argues that his right to be free of double jeopardy was violated when the district court first granted, then reversed and denied, Thompson's motion for judgment of acquittal on one count. We deny these claims and affirm on each issue, with the exception of Thompson's double jeopardy claim. On that issue, we find a double jeopardy violation and reverse Thompson's conviction on the one count implicated by the double jeopardy issue.

I. Facts

In December 2008, the government began to surveil George Thompson pursuant to an authorized wiretap. The government supported the wiretap application with a sixty-eight-page affidavit setting out evidence supporting probable cause that five or more people were participating in an illegal gambling business. This affidavit was based on evidence obtained through undercover observation from confidential witnesses (“CW”s), toll record analyses, surveillance photos, and trash pulls. The affidavit described meetings between George Allen Thompson (the son of appellant George Thompson), Gene Baker, and Dana Kuykendall, all alleged to be members of the illegal gambling business; surveillance of Baker's “runs” to exchange money and betting slips; and calls between Baker, Thompson, and other members of the business. The affidavit also explained why wiretaps were necessary: it noted concerns that CWs were passing information not only to law enforcement, but also back to members of the business and the fact that George Thompson burned betting slips weekly instead of just throwing them away.

Through this wiretap, police overheard evidence about illegal drug trafficking across state lines and the sale of firearms from Samuel Baggett to convicted felon George Thompson. On the basis of the original affidavit, as well as information obtained through the wiretap, the district court reauthorized the wiretap twice, expanding its scope from calls relating to an illegal gambling enterprise, to those relating to possible firearms, narcotics, extortion, visa fraud, and immigration offenses.

After surveilling Thompson and his associates on the expanded wiretap for several months, police executed search warrants for Thompson's property in May and for Baggett's property in June. At the time they searched Baggett's property, police also questioned Baggett about his relationship with Thompson and whether Baggett had illegally sold him firearms and ammunition. Baggett denied having sold Thompson firearms and ammunition.

In November 2009, police stopped Tri Cam Le (who is not a party to this case) and found a significant amount of cocaine in his possession. After being arrested, Le called Thompson, who in turn called Ralph Deleo to discuss the arrest. On the basis of this call and an ensuing investigation, the government executed a search warrant on Deleo's apartment. In the course of executing that search warrant, police searched a storage room across the hall from the apartment, found a significant amount of cocaine, and arrested Deleo. On the basis of the evidence described above, the government moved to indict and arrest Thompson, Baggett, and Deleo. It jointly indicted Thompson and Baggett ¹ and also jointly indicted Thompson and Deleo for various gambling, drug, and firearms offenses. Two cases proceeded to trial: one against Thompson and Baggett and one against Thompson and Deleo.

Before each trial, the defendants made several motions relevant to this appeal. In the trial of Baggett and Thompson, Thompson moved to suppress evidence obtained by the wiretap and also to sever the individual charges against him. Baggett moved to sever his trial from Thompson's. The district court denied each of these motions.

At the Baggett and Thompson trial, the government introduced several pieces of evidence relevant to Baggett's knowledge of Thompson's felony status to support its claim that Baggett aided and abetted a felon in possession of firearms: (1) a letter to a state trial judge stating that Baggett had known Thompson for twenty years and asking for the judge to show mercy to Thompson, (2) a telephone call between Baggett and Thompson discussing options for getting Thompson a gun without having to register, and (3) the fact that Thompson had told Baggett about time he served in jail. During this trial, Baggett filed a conditional motion to sever if Thompson chose not to testify. After it became apparent that Thompson would indeed not testify, the district court denied the motion to sever. At the close of the government's case, Thompson moved for a judgment of acquittal. The district court took this motion under advisement, then denied it on all counts except count five, felon in possession of a firearm. At this point, Thompson rested his case without putting on any evidence, and Baggett began to call witnesses. After several witnesses testified, the court, during a recess, expressed doubt as to the judgment of acquittal on count five, and asked the parties for case law on whether it could reverse itself. The following morning, the court determined it could reverse the motion, denied Thompson's motion for a judgment of acquittal on count five, and resumed the trial. After that trial, the jury found Thompson guilty of all counts, including count five. Thompson was thus convicted of two counts being a felon in possession of a firearm, one count of being a felon in possession of ammunition, one count of conspiracy, one count of illegal silencers, two counts of conspiracy to conduct an illegal gambling ring, and one count of marriage fraud. Baggett was found guilty of one count each of aiding and abetting a felon in possession of a firearm, false statements, and conspiracy.

Before the trial of Thompson and Deleo, both Thompson and Deleo moved to suppress evidence obtained by the wiretap. Thompson also moved to suppress evidence concerning a prior arrest for drug trafficking activity and evidence of his travel to China immediately after federal agents searched several of his properties. Deleo moved to suppress evidence found in a storage room that agents searched ostensibly under the authority of a search warrant of his apartment. The district court denied these motions.

At Thompson's and Deleo's trial, the government introduced evidence of the telephone call between Thompson and Deleo discussing Tri Cam Le's arrest. It also put on evidence of Thompson's withdrawal of money and travel to China following a search of Thompson's home and another property he owned. After the trial, a jury found Thompson guilty of (1) conspiracy to possess with intent to distribute cocaine, (2) aiding and abetting possession with intent to distribute cocaine, and (3) use of a communication device to facilitate a drug transaction. The jury found Deleo guilty of (1) conspiracy to possess with intent to distribute cocaine, (2) use of a communication device to facilitate a drug transaction, and (3) aiding and abetting possession with intent to distribute cocaine.

II. Discussion

A. Suppression of Wiretap Evidence

The district courts did not err in refusing to suppress evidence police acquired from the wiretap.² “We review the denial of a motion to suppress de novo but review underlying factual determinations for clear error, giving due weight to the inferences of the district court and law enforcement officials.” United States v. Nichols, 574 F.3d 633, 636 (8th Cir.2009) (internal quotation marks omitted). Thompson and Deleo assert three errors in both district courts' decisions to admit the wiretap evidence. We address each asserted error below.

1. Probable Cause

Among other things, the federal wiretap statute requires judges granting applications for wiretaps to find that “there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter.” 18 U.S.C. § 2518(3)(a). The probable cause requirement in this statute is linked to the Fourth Amendment. Thus, to grant an application for a wiretap, district courts must make a “practical, common-sense decision whether,” considering the “totality-of-the-circumstances ... 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).

One of the...