United States v. Wheeler
| Decision Date | 10 September 2021 |
| Docket Number | 16-3780 |
| Parties | UNITED STATES OF AMERICA v. WILLIS WHEELER, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Submitted on Remand: August 24, 2021
On Remand from the Supreme Court of the United States on June 3 2019
Lisa B. Freeland Renee Pietropaolo (ARGUED) Office of Federal Public Defender Counsel for Appellant
Adam N. Hallowell Laura S. Irwin Donovan J. Cocas (ARGUED) Office of United States Attorney Counsel for Appellees
Before: CHAGARES, MATEY, Circuit Judges, and BOLTON, District Judge [*]
Willis Wheeler appeals from his conviction after a jury trial of conspiracy to distribute one kilogram or more of heroin, possession with intent to distribute 100 grams of heroin, and possessing a firearm despite being a convicted felon. Wheeler raises a myriad of challenges to the admissibility of a number of statements made by case agents and Government experts; the sufficiency of the evidence; the admissibility of evidence acquired after an allegedly warrantless search of an apartment Wheeler used; the District Court's refusal to give a multiple-conspiracies instruction; and the admission of evidence seized from an alleged co-conspirator nearly a year after the termination of the conspiracy. We affirmed the District Court's judgment in 2018. Thereafter, the First Step Act of 2018 (the "First Step Act"), Pub. L. No. 115-391, 132 Stat. 5194, was enacted. The Supreme Court subsequently vacated our decision and remanded so that we could consider the effect of the newly enacted First Step Act. While this case was on remand, the Court decided Rehaif v. United States, 139 S.Ct. 2191 (2019). As explained below, the First Step Act does not apply to Wheeler, and we will not vacate his conviction for plain error under Rehaif. Because we also conclude, as we did earlier, that his other arguments lack merit, we will affirm.
The investigation culminating in Wheeler's conviction began with the FBI's Safe Streets Gang Task Force investigation, beginning in March 2011, of heroin distribution by gang members in the East Hills Housing Project in Pittsburgh. Through undercover agents and wiretaps, the investigators determined that Richard Bush was one of the group's drug makers and that Bush procured his drug-making material (other than the heroin itself) from Mayank Mishra. Mishra owned Rock America, a store that ostensibly sold concert "swag," but whose real profit came from the sale of stamp bags (used to package heroin for individual sale), diluents (cutting agents), and other drug paraphernalia to Pittsburgh drug dealers. Investigators intercepted calls between Bush and Mishra, in which, for instance, Bush ordered diluents and cases of colored and personalized stamp bags and discussed his heroin recipe.
In these conversations, Bush described his heroin-processing lab and how even breathing in the fumes there made him "high as a motherf****r." Supplemental Appendix ("Supp. App.") 12. He repeatedly referenced his "dude," "man," or "guy" who advanced the money to make purchases from Mishra, who warned him that he thought Mishra's shop had been raided, and to whom Bush would recount drug-testers' one-to-ten ratings of the quality of the heroin that Bush produced. Id. Further investigation revealed that Bush's lab was in his 10-by-10-foot basement, accessible from his attached garage. In January 2012, officers set up a pole camera overlooking the garage. From the footage, they identified Wheeler, who would arrive at Bush's home, use a remote in his car to open the garage door, and would often stay for seven or more hours.
Wheeler would text Bush that he was on his way over, but based on a comparison of the expected travel time between Wheeler's home and Bush's with Wheeler's actual arrival time, investigators believed that Wheeler was making a stop before reaching Bush. Allegheny County Sheriff's Deputy Richard Barrett - a lead investigator - believed that Wheeler was stopping at a stash house to pick up raw heroin. Few calls were intercepted between Bush and Wheeler. However, in one call between Bush's wife Sylvia and Bush, Sylvia told Bush that Wheeler was "downstairs in the basement," to which Bush replied, "Alright, tell him I'll be there." Supp. App. 88. Other calls appeared to show Wheeler asking Bush what stamp bags to buy (the "joints" call) and Wheeler telling Bush that he thought he was being surveilled by police (the "weird" call). Given this information, investigators believed that Wheeler was Bush's heroin supplier.
Police executed simultaneous search warrants on Bush and Wheeler (as well as their homes and cars) on March 14, 2012. Given the investigators' belief that Wheeler had in the past spotted their surveillance, they followed Wheeler's car by airplane to ascertain where he stopped before going to Bush's. Wheeler led investigators to a multiunit complex at 500 Mills Avenue, where he spent thirty minutes before continuing towards Bush's, at which point officers arrested him. The search of his car turned up 186 4 grams of 86 percent pure heroin in his glove compartment; $28, 000 in cash, rubber bands, bill-wraps for thousand-dollar bills, and a loaded handgun were found at his home. At the direction of the Assistant United States Attorney ("AUSA") on the case, officers used keys seized from Wheeler to enter the Mills Avenue complex. Unsure of which unit Wheeler had accessed, police - again on the AUSA's instructions - tested the keys on various doors until they found a lock that the keys opened. Officers did a protective sweep of the apartment, pending a search warrant. After obtaining the warrant, a search revealed drug paraphernalia and a locked safe containing 761.2 grams of heroin.
During the simultaneous search of Bush's home, police discovered Bush's heroin lab, guns, drug paraphernalia, and a large amount of heroin of varying purities (that is, at different stages of the cutting or diluting process, in preparation for sale). Specifically, officers discovered 287.1 grams of 43.2 percent pure heroin, nearly 8, 900 stamp bags containing 26.4 percent pure heroin, and 700 stamp bags containing 28 percent pure heroin. An officer testified that the odor of the heroin and diluents in the basement was so strong that he and other officers experienced headaches that night and the next day. Nearly a year later, in February 2013, a search of Mishra's home uncovered more than $900, 000 in cash, cases of stamp bags (including gold, clear, and white bags), and drugmaking paraphernalia. More stamp bags and paraphernalia were found at Rock America.
A superseding indictment was issued in March 2013 against Bush, Mishra, and Wheeler. As relevant here, Count One charged all three with conspiracy to distribute one kilogram or more of heroin from August 2011 to March 2012, in violation of 21 U.S.C. § 846. Count Three charged just Wheeler with possession with intent to distribute 100 grams of heroin, in violation of 21 U.S.C. § 841. Count Seven charged just Wheeler with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922. All three defendants pleaded not guilty, but Wheeler's trial was severed after his counsel died. On December 18, 2015, a jury convicted Bush and Mishra on all counts they faced.[1]
Wheeler's trial began in April 2016. The Government offered the testimony of the chemist who tested the drugs and the case agents involved in the investigation and arrests, and the expert testimony of Pennsylvania State Police Trooper Michael Warfield concerning illegal drug trafficking. Wheeler's defense conceded that Bush and Mishra conspired with each other, but argued that Wheeler and Bush were merely friends and that Wheeler had never met or spoken with Mishra, and so denied participation in the Bush-Mishra conspiracy. Wheeler advanced an alternative theory that the conspiracy's supplier was a Detroit-based man named Dean Floyd, with whom Bush had several conversations. The jury convicted Wheeler on all three counts, and he timely appealed.[2]
We affirmed the District Court's judgment on July 12, 2018. United States v. Wheeler, 742 Fed.Appx. 646 (3d Cir. 2018). Approximately five months later in December 2018, Congress amended the Controlled Substances Act with the First Step Act, which Wheeler relied upon in his briefing before the Supreme Court. The Supreme Court of the United States subsequently vacated our decision and remanded with instructions to consider the effect of the newly enacted First Step Act. Wheeler v. United States, 139 S.Ct. 2664 (2019) (Mem.). We held this case curia advisari vult pending our decision in United States v. Aviles, 938 F.3d 503 (3d Cir. 2019). After the Supreme Court decided Rehaif v. United States, 139 S.Ct. 2191 (2019), we stayed this case pending our decision in United States v. Nasir, 982 F.3d 144 (3d Cir. 2020) (en banc). The Supreme Court in Greer v. United States, 141 S.Ct. 2090 (2021), concluded that an appellate court conducting plain-error review may consider the entire record, abrogating our holding in Nasir that we were limited to the trial record on plain-error review. 141 S.Ct. at 2098. Having reviewed the parties' additional briefing and requests for supplemental briefing, we address Wheeler's appeal again in light of these decisions.
We turn first to whether the First Step Act applies to Wheeler. We conclude that it does not. The First Step Act reduced the mandatory minimum sentence from twenty years to fifteen years of imprisonment for a person who was convicted of an offense under 21 U.S.C. § 841 after previously having been convicted of a serious drug felony or serious violent felony. Pub. L. No. 115-391, § 401(a)(2)(A)(i), 132 Stat. at 5220. The Act provides that...
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