United States v. Thompson, 10-13653
| Decision Date | 16 April 2012 |
| Docket Number | D.C. Docket No. 1:09-cr-20264-JLK-3,No. 10-13653,10-13653 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NIKO THOMPSON, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Appeal from the United States District Court
for the Southern District of Florida
Before DUBINA, Chief Judge, MARCUS and FAY, Circuit Judges.
Niko Thompson appeals his convictions for conspiracy to possess with intent to distribute 500 or more grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii)(II), 846, and for possession of a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). Thompson contests the sufficiency of the evidence on both counts and further argues that three trial errors merit reversal of the convictions: (1) a DEA agent's testimony at trial that Thompson was the "source of supply" for an indicted co-conspirator; (2) testimony at trial concerning the procedures used by the government to obtain legal authorization to conduct wiretaps and procure search warrants; and (3) allegedly improper comments by the prosecution during its closing argument. After thorough review, we affirm Thompson's convictions on both counts.
Since Thompson challenges the sufficiency of the evidence against him, we consider the record in the light most favorable to the verdicts, drawing all reasonable inferences and resolving all credibility determinations in their favor. See United States v. White, 663 F.3d 1207, 1213 (11th Cir. 2011).
The essential facts are these. The case against Niko Thompson was the byproduct of a long-term investigation of the drug-related activities of Emmanuel Othello and Junior Sylvin by federal and state authorities. During the course of theinvestigation, the defendant Thompson was released from prison in mid-November 2008, and his mother, Dakota Thompson, activated an iPhone around that time. The address listed in public records for Dakota Thompson was the same address as the one on Niko Thompson's driver's license.
On November 18, 2008, the DEA began a court-ordered wiretap interception of Junior Sylvin's cell phone calls. Law enforcement officials monitored some 10,000 calls on Sylvin's phone during the course of the wiretap, which lasted less than two months. Of particular note for our purposes is that approximately 123 of these calls were linked to the Thompson iPhone. On the first several days of the wiretap, Sylvin and Othello had at least two conversations in which they referred to "shit" or "shits" (apparently referencing drugs), including one in which they mentioned that the "shits" had been opened, that not all of them had been used, and that two were left. In a later call during the wiretap, Sylvin and Othello compared the "shit" they had received from both "Coach" and "Cut." Othello additionally stated that "Coach" had "just got out" and could not take certain chances.
On November 28, 2008, what appears to have been a drug transaction involving Sylvin, Othello, and Thompson occurred. Sylvin instructed Othello to buy "shit" and "keys" from "Coy." Notably, Sylvin told Othello that the number to call was the number registered to the Thompson iPhone. Several phone calls betweenSylvin and Thompson followed in which the defendant Thompson said that "Monk" -- a nickname for Othello, according to a DEA agent's testimony at trial -- had not yet come to see him. Sylvin eventually said that he would meet Thompson and that he would get the "shit" in exchange for "bread." Thompson told Sylvin to meet him where Sylvin had gone "yesterday," seemingly referring to a house on N.W. 139th Street in Miami to which Thompson had given Sylvin directions the day before. The trial testimony of government agents described the residence on N.W. 139th Street as a "stash house" in which several documents linked to Gordon Louis, an indicted co-conspirator, had been found.
On December 5, 2008, another ostensible drug transaction took place. This time, Sylvin told Othello that what he was "finna get from [Coach] today" was "out of there" and that he was "gon' make $1800." An intercepted phone call shortly thereafter showed that Sylvin agreed to "see what was up" for Ziv Bythol, an individual whom Sylvin supplied with drugs. An hour later, Sylvin called the defendant Thompson and told Thompson that he was outside the N.W. 139th Street house. A DEA agent observed Sylvin enter the home, remain inside for fifteen minutes, and then depart for Othello's home. Sylvin and Othello traveled in separate vehicles to Bythol's home, where they stopped for approximately ten minutes. Upon arriving back at Othello's residence, Sylvin told Bythol on the phone that he didn't"know about the 18" but that he would "probably get half of the 18." Sylvin called Thompson immediately thereafter and asked, "half of that what I just hauled ass with, right?" A few minutes later, Thompson told Sylvin that he would "give [Sylvin] what [Sylvin] left with tomorrow."
A member of the Miami Police Department's narcotics squad stopped Sylvin's vehicle on December 8, 2008. The officer called a K-9 unit; upon arrival, the dog alerted vigorously to the vehicle. A search revealed twenty-one individually wrapped bags of cocaine and a firearm. The officers seized 581 grams of cocaine and the firearm but did not arrest Sylvin. Sylvin and Thompson had still another conversation three days later where Sylvin mentioned "the shit [I] just lost."
On January 10, 2009, law enforcement agents executed a court-ordered search warrant at Emmanuel Othello's residence. Othello, along with his brother and another woman, were present during the search. Inside the main house, the authorities found $4,000 in cash, a gun holster, a strobe light similar to those used by unmarked police vehicles, and a digital scale. A separate court-ordered search warrant of another structure in the back of that property revealed $37,790 in cash bound with rubber bands, orange baggies, a heat sealer, rubber bands, ammunition, a kilogram press, a room deodorizer, and a large white bag containing a substance used to dilute cocaine.
On April 6, 2009, law enforcement officials executed an arrest warrant for the defendant Thompson and a court-ordered search warrant at the house where he was staying. At approximately 6:40 A.M., an ATF team forcibly entered the residence and arrested Thompson in a back bedroom. The search of the house revealed a Beretta firearm underneath the right side of the mattress and a loaded magazine in the nightstand in the same bedroom. Next to the nightstand was the iPhone with the phone number registered to Dakota Thompson. Billing statements from several companies (FP&L, AT&T, and ADT) were addressed to Niko Thompson at the address being searched. Several children and April Walker, Thompson's fiancée, were also present at the scene.
Thompson was tried individually in May 2010. The only witness called by the defense was Walker. She said that the gun was underneath her side of the bed and that she slept closest to the nightstand. She added that "two or three days prior" to the raid she had found the gun in the glove compartment of a rental car that Gordon Louis had borrowed from Walker. Walker claimed that she told Louis to retrieve the firearm and that she then hid it from the children. She offered that Thompson had been out of town for approximately one week "doing music" in Tampa and did not know about the firearm because he returned at 3:00 or 4:00 A.M. on the morning of the raid. Walker also claimed that the authorities at the scene were trying to coerceher to say that the gun belonged to Thompson.
The Government sought to rebut Walker's testimony by calling ATF Agent Stefani Stankiewicz. According to Stankiewicz, Walker said on the the morning of Thompson's arrest that she had found the gun in one of Thompson's rental vehicles approximately three weeks before the raid, called Thompson to find out what to do with it, and then placed the firearm inside the house pursuant to Thompson's instructions. Walker observed on the morning the search warrant was executed that the firearm could have belonged to "G," a nickname for Gordon Louis, since Louis and Thompson would go shooting at a gun range together.
The defendant was convicted on the felon in possession charge and the conspiracy to possess with the intent to distribute 500 or more grams of cocaine involving Sylvin and Othello, but he was acquitted on a separate charge of conspiracy to possess with intent to distribute 500 or more grams of cocaine involving alleged co-conspirator Gordon Louis. Thompson was sentenced to a total of twenty years imprisonment and eight years of supervised release, in addition to being assessed $200. This timely appeal followed.
Several standards of review govern this appeal. Thompson's challenges to thesufficiency of the evidence are reviewed de novo. United States v. White, 663 F.3d 1207, 1213 (11th Cir. 2011). In reviewing the sufficiency of the evidence, "we look at the record in the light most favorable to the verdict and draw all reasonable inferences and resolve all questions of credibility in its favor." Id. (internal quotation marks omitted). A jury's guilty verdict will not be disturbed unless no reasonable trier of fact could have found guilt beyond a reasonable doubt. Id. All of the purported trial errors cited by Thompson are reviewed for plain error because none of them was accompanied by a contemporaneous objection. See United States v. Hoffman-Vaile, 568 F.3d 1335, 1340 (11th Cir. 2009) (evidentiary issues); United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002) (improper closing argument); United States v. DeJean, 613 F.2d 1356, 1360 (5th Cir. 1980) ().1 "Plain error occurs where (1) there is an error; (2) that is plain or obvious; (3) affecting the defendant's substantial rights in that it was prejudicial and not...
To continue reading
Request your trial