United States v. Wiggins

• Decision Date: 15 May 2014
• Docket Number: No. 12–4007.,12–4007.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Theodore S. WIGGINS, also known as Theo, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

747 F.3d 959

UNITED STATES of America, Plaintiff–Appellee
v.
Theodore S. WIGGINS, also known as Theo, Defendant–Appellant.

No. 12–4007.

United States Court of Appeals,
Eighth Circuit.

Submitted: Nov. 20, 2013.
Filed: April 3, 2014.
Rehearing and Rehearing En Banc Denied May 15, 2014.

[747 F.3d 961]

Michael W. Walker, Duchardt & Walker, L.L.P., Kansas City, MO, argued, for appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., Brent B. Venneman, Asst. U.S. Atty., on the brief), for appellee.

Before BENTON, BEAM, and SHEPHERD, Circuit Judges.

BEAM, Circuit Judge.

Theodore Wiggins appeals his conviction by jury and sentence for conspiracy to distribute more than five kilograms of cocaine and more than 50 grams of cocaine base. The district court ¹ sentenced him to life imprisonment pursuant to the sentencing enhancement provisions of 21 U.S.C. §§ 841 and 851. We affirm.

I. BACKGROUND

Police in Kansas City, Missouri, began looking into Wiggins as part of a cocaine distribution conspiracy after police utilized court-approved wiretaps in February 2010 on the phones of Shawn Hampton. Through use of these wiretaps, authorities learned that Wiggins was primarily a street level distributor for Hampton in a large-scale cocaine conspiracy. On wiretap calls heard by the jury at trial, Wiggins and Hampton discussed cooking, purchasing and distributing the cocaine base. Based upon the wiretap evidence, Wiggins was charged with two counts in a multi-count indictment, and he was arrested in June 2010. Prior to Wiggins' trial, the government filed its notice of intent to seek to enhance Wiggins' punishment under 21 U.S.C. §§ 841 and 851, due to Wiggins' two previous felony drug convictions.

Because Wiggins does not challenge the sufficiency of the evidence on appeal, we briefly recount the evidence presented at trial, as relevant to the issues on appeal. Several police detectives testified about their surveillance and undercover activities, including an officer's account of his undercover controlled purchase of cocaine base from Wiggins. The wiretap evidence (twenty-two selected calls from a pool of thousands of possible wiretaps) was played for the jury, while the transcript was displayed on an overhead projector. At the time that this evidence was presented, the jury was instructed that the contents of the calls, and not the transcripts, were the evidence. Hampton, who had reached a plea agreement with the government, testified about the extent of the conspiracy, including the fact that Wiggins purchased cocaine from him on numerous occasions. Another co-conspirator who had pleaded guilty, Terrance Blewett, testified that

[747 F.3d 962]

Wiggins purchased cocaine from him, via Hampton, on at least two occasions. Finally, the jury heard evidence, pursuant to Rule 404(b), of Wiggins' prior convictions for sale and possession of cocaine base. The jury convicted Wiggins of count one for the conspiracy, and count eight for distribution, based upon his sale of cocaine to the undercover officer during the controlled buy.

At sentencing, the district court adopted the findings in the presentence investigation report (PSR) to establish the drug quantities of cocaine and crack cocaine attributable to the conspiracy, at least 840 grams. The court further noted that the government had properly given notice of its intent to enhance Wiggins' sentence based on prior convictions pursuant to 21 U.S.C. § 851, and that a Guidelines career offender status was also appropriate. The court sentenced Wiggins to life imprisonment on count one as required by statute, 21 U.S.C. § 841(b)(1)(A). On count eight, the distribution count, Wiggins received a concurrent sentence of 360 months, also the statutory maximum.

On appeal, Wiggins challenges (1) the use of transcripts from the wiretaps at trial, because the transcripts identified the speakers involved in the telephone calls; (2) the admission of Wiggins' prior convictions for distribution of cocaine base and possession of cocaine as Rule 404(b) evidence; (3) the PSR's calculation of the appropriate drug amount attributable to Wiggins; (4) the use of his prior conviction for simple possession of cocaine as a qualifying conviction for a statutory sentencing enhancement; and (5) the imposition of a life sentence. Wiggins also raises a claim of cumulative error.

II. DISCUSSIONA. Wiretap transcripts

We review the district court's admission of transcripts to aid in evaluating the wiretap evidence for an abuse of discretion. United States v. Frazier, 280 F.3d 835, 849 (8th Cir.2002). Wiggins argues that the district court abused its discretion by allowing the government to use transcripts of wiretapped telephone conversations that identified Wiggins as the individual who referred to himself as “Theo” during the tape-recorded calls. Wiggins points to the fact that the name “Wiggins” was not used during the calls. However, two government witnesses, Hampton and Blewett, identified Wiggins' voice as belonging to the person who used the name Theo during the phone calls. Further, the district court issued a cautionary instruction that the tapes, not the transcripts, were evidence.

While Wiggins challenges the credibility of the two witnesses who provided the foundational identifications, this was an issue for the jury. United States v. Hodge, 594 F.3d 614, 618 (8th Cir.2010). Further, the government agents who testified at trial also identified Wiggins as the person they observed meeting with...