United States v. Wolcott, 11-5693
| Decision Date | 08 June 2012 |
| Docket Number | No. 11-5693,11-5693 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH WOLCOTT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
File Name: 12a0600n.06
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE
OPINIONBefore: MOORE, SUTTON, and STRANCH, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Following his conviction for drug trafficking, money laundering, unlawful gambling, and animal fighting, Defendant-Appellant Joseph Wolcott appeals the district court's denial of his motion to suppress evidence discovered as the result of a wiretap. Wolcott also appeals various aspects of his 276-month sentence, including the application of a mandatory-minimum sentence based on a prior felony drug conviction and a sentencing enhancement for a leadership role in the charged offense. Finally, Wolcott contends that his sentence was procedurally and substantively unreasonable. We AFFIRM the denial of the motion to suppress. We also hold that the district court did not err in applying the mandatory-minimum sentence and the leadership-role enhancement and AFFIRM Wolcott's sentence.
In early 2008, after several years of receiving tips from confidential sources, the federal Drug Enforcement Agency ("DEA"), Tennessee Bureau of Investigation, and Kentucky State Police began investigating a suspected drug-trafficking, money-laundering, illegal-gambling, and cockfighting operation in central Kentucky and middle Tennessee. The investigation focused on three individuals—Wolcott, Jeffery Copas, and Jerry Glass—and their associates.
Because previous informants either were incarcerated or refused to cooperate further, law-enforcement officials began working with an individual identified as CS-12 in an attempt to infiltrate the operation. CS-12 and a fellow informant, CS-11, attended a series of cockfights in Kentucky, where they arranged to purchase marijuana from Bruce Ferguson, a suspected participant in the drug-trafficking operation. The two informants travelled to Ferguson's house for the transaction, which was recorded by CS-12; law-enforcement officials established surveillance at the house during the controlled buy. Ferguson subsequently contacted CS-12 to discuss the possibility of future transactions. CS-12 later met Jeffery Copas, who invited CS-12 to an invitation-only cockfight in eastern Kentucky, which would also be attended by Ferguson, Glass, and Wolcott. At the invitation-only fight, Copas invited CS-12 "to come and stay at [Copas's] residence sometime so that Jeffery Copas could show CS-12 some chickens and different grades/types of marijuana." R.522-2 (DEA Aff.) at 28, ¶ 60 (Page ID# 1649). The affidavit does not state whether CS-12 ever accepted this invitation. Over the next several months, CS-12 had a series of telephone conversations with Ferguson related to the possibility of additional marijuana purchases. During this same period, the government received pen register data from Ferguson's cell phone, which revealed hundreds of callsto and from phone numbers associated with Glass, Copas, and Wolcott. On July 11, 2008, CS-12 participated in a second controlled buy at Ferguson's house.
On July 14, 2008, DEA officials requested authorization to engage in electronic surveillance of Ferguson's cell phone. Pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the officials submitted an application and accompanying affidavit to the district court explaining why non-wiretap techniques were unlikely to succeed and thus why wiretap authority was necessary. See 18 U.S.C. § 2518. Specifically, the affidavit described why continued reliance on the informants would be an inadequate means of meeting the investigation's ultimate objective of discovering and dismantling the full scope of the operation. The informants had been unable to gather information regarding "the identities and roles of the sources of supply for the drugs[,] . . . the distribution of the funds, the location and existence of records, or the resources used to finance the Wolcott Organization's drug business[, and] . . . how the Wolcott Organization moves and launders the proceeds generated from the sale of cocaine and marijuana." R.522-2 at 43, ¶ 92 (Page ID# 1663). In addition, CS-11 and CS-12 had not had the opportunity to meet Glass or Wolcott and had not purchased drugs directly from Copas. Finally, CS-11 refused to testify and was thus of limited utility.
The district court authorized the wiretap of Ferguson's cell phone for 30 days, and subsequently authorized additional wiretaps of cell phones belonging to Wolcott and KevinWolcott.1 Based on information gleaned from these wiretaps, the government executed search warrants at Wolcott's home in Crossville, Tennessee and his farm in Sparta, Tennessee, seizing drugs, drug paraphernalia, and cash. The wiretaps also revealed conversations related to a sports-betting operation and an arrangement between Wolcott and Darrell Tommy Jones in which Jones would buy used vehicles with Wolcott's money, resell the vehicles, and return the proceeds to Wolcott.
In December 2008, a federal grand jury indicted Wolcott and twelve others on charges related to drug trafficking and unlawful gambling. Superseding indictments added charges for money laundering and animal fighting.2 Prior to trial, Wolcott filed a motion to suppress the evidence derived from the wiretap as the fruit of illegal surveillance, arguing that the government had failed to show why electronic surveillance was necessary. The district court denied this motion, and the case proceeded to trial.
The jury found Wolcott guilty on all counts. The district court calculated Wolcott's sentencing range under the United States Sentencing Guidelines ("U.S.S.G.") as 262-327 months of imprisonment. This range included a 240-month mandatory-minimum sentence for the drug charge based on the district court's finding that Wolcott had a previous felony drug conviction, see21 U.S.C. § 841(b)(1)(A), and a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a) based on Wolcott's role as an organizer or leader of the drug-trafficking operation. After considering the government's request for a 300-month sentence, the court sentenced Wolcott to 240 months of imprisonment for the drug conviction and 36 months of imprisonment for the money-laundering, gambling, and animal-fighting convictions, with the sentences running consecutively for a total of 276 months of imprisonment.3 The court also imposed ten years of supervised release.
Wolcott timely appealed, arguing that the district court erred in denying his motion to suppress and in imposing the 276-month sentence. As to the sentence, Wolcott argues that the district court should not have imposed the mandatory minimum because the government did not prove beyond a reasonable doubt that he had a prior felony drug conviction and that his Sixth Amendment rights were violated when the court, rather than a jury, found that he had such a conviction. In addition, Wolcott argues that the four-level leadership-role enhancement was improper. Finally, Wolcott contends that the sentence was procedurally and substantively unreasonable because the district court did not explain its reasons for selecting 276 months or for ordering that the 240-month mandatory minimum and the additional 36 months run consecutively.
Wolcott argues that the district court should have suppressed all evidence derived from the three wiretaps because the government's initial affidavit requesting wiretap authority failed to meet the "necessity requirement" of 18 U.S.C. § 2518. When evaluating a district court's denial of a motion to suppress evidence derived from a wiretap, we review findings of fact for clear error and questions of law de novo. United States v. Rice, 478 F.3d 704, 709 (6th Cir. 2007) (citing United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002)). We generally "'accord great deference to the determinations of the issuing judge.'" Id. (quoting United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000)). Because "suppression is the appropriate remedy for a violation under Title III," the government cannot use evidence at trial that was discovered by means of a wiretap that fails to satisfy the necessity requirement. Id. at 710.
Under § 2518, a law-enforcement official's application for wiretap authority must contain "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). The necessity requirement ensures that a wiretap is not used as "the 'initial step in [a] criminal investigation,'" Rice, 478 F.3d at 710 (quoting United States v. Giordano, 416 U.S. 505, 515 (1974)), or is otherwise "'resorted to in situations where traditional investigative techniques would suffice to expose the crime,'" id. (quoting United States v. Alfano, 838 F.2d 158, 163 (6th Cir. 1988)). Accordingly, the application must demonstrate that the government gave "'serious consideration to the non-wiretap techniques prior to applying for wiretap authority'" andexplain why, under the particular circumstances at hand, such techniques would be, or had already proven to be, inadequate. Stewart, 306 F.3d at 305 (quoting United States v. Lambert, 771 F.2d 83, 91 (6th Cir. 1985)). Nonetheless, the government "need not prove the impossibility of other means of obtaining information," and, relatedly, "the mere fact that some investigative techniques were successful in uncovering evidence of wrongdoing does not mandate that a court negate the need for wiretap surveillance." Id.
Wolcott chiefly contends that the wiretap was unnecessary because the government was already enjoying significant investigatory success through the use of a...
To continue reading
Request your trial