US v. Iiland, 00-5012

• Decision Date: 03 July 2001
• Docket Number: No. 00-5012,00-5012
• Citation: 254 F.3d 1264
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SIDNEY RONNELL IILAND, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1264

254 F.3d 1264 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SIDNEY RONNELL IILAND, Defendant-Appellant.

No. 00-5012

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 3, 2001

Appeal from the United States District Court for the NorthernDistrict of Oklahoma (D.C. No. 99-CR-20-K) [Copyrighted Material Omitted] Submitted on the Briefs: W. Creekmore Wallace, II, Sapulpa, Oklahoma, for Defendant-Appellant.

Stephen C. Lewis, United States Attorney, and Allen J. Litchfield, Assistant United States Attorney, for Plaintiff-Appellee.

Before SEYMOUR and McWILLIAMS, Circuit Judges, and RICHARD MILLS,^* District Judge.

SEYMOUR, Circuit Judge.

Sidney Ronnell Iiland and sixteen others were named in a multicount indictment charging numerous offenses involving drug trafficking. Mr. Iiland was convicted after a jury trial of distributing various controlled substances, possessing a firearm after a former felony conviction, possessing a firearm in furtherance of a drug trafficking offense, and maintaining a location for the purpose of distributing cocaine. On appeal, Mr. Iiland asserts (1) the trial court erred in failing to suppress wiretap evidence and evidence derived therefrom; (2) the court erroneously allowed the admission of evidence discovered as a result of a stale search warrant; (3) he was prejudiced by going to trial with three other codefendants; and (4) the evidence was insufficient to sustain his conviction for possessing a firearm in furtherance of a drug trafficking crime. We affirm in part and reverse in part.

I. Wiretap Evidence

During the investigation of the criminal activity underlying the indictment, the district court issued wiretap orders authorizing electronic eavesdropping on the telephone at Mr. Iiland's apartment for a sixty-day period. Before trial, Mr. Iiland and other codefendants moved to suppress the audiotapes derived from these wiretaps. After a hearing on the matter, the district court held defendants had failed to rebut the presumption that the wiretap orders were proper. Recordings of intercepted calls obtained through these wiretaps were played for the jury at trial. Mr. Iiland contends on appeal that the court committed reversible error in failing to suppress these materials. We disagree.

Electronic eavesdropping by law enforcement officials is governed by the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. See 18 U.S.C. 2510-22. The statute establishes a three-part procedure for obtaining a wiretap order, under which an officer must obtain administrative approval before applying to a federal judge for a wiretap, the officer must present a written application to the judge, and the judge must make certain findings and issue an order containing specified elements. See United States v. Castillo-Garcia, 117 F.3d 1179, 1184-85 (10th Cir. 1997). The statute contains a "necessity" requirement, under which the officer must establish and the court must find that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. 2518(3)(c). This requirement is intended "to ensure that the relatively intrusive device of wiretapping 'is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.'" United States v. Edwards, 69 F.3d 419, 429 (10th Cir. 1995) (quoting United States v. Kahn, 415 U.S. 143, 153 n.12 (1974)). "If an application was granted without meeting the necessity requirement, the wiretap evidence must be suppressed." United States v. Green, 175 F.3d 822, 828 (10th Cir. 1999). Mr. Iiland contends the district court erred in ruling that the necessity requirement was satisfied.¹

On appeal from a motion to suppress evidence obtained pursuant to a wiretap we accept the district court's factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favorable to the prevailing party. The question of whether the government demonstrated sufficient "necessity" . . . to support the issuance of a wiretapping order is a question of law which we review de novo.

Castillo-Garcia, 117 F.3d at 1186 (citations omitted). A wiretap order is presumed proper and the defendant must bear the burden of overcoming this presumption. Green, 175 F.3d at 829-30.

In examining necessity challenges to wiretap orders, we have repeatedly held that law enforcement officials are not required "to exhaust all other conceivable procedures before resorting to wiretapping." Consequently, we have upheld applications for wiretap orders where the application indicated: (1) several investigatory methods had been utilized prior to resort to wiretapping; (2) normal investigative techniques had been frustrated "by various problems local police were unable to overcome;" (3) increased visual surveillance would have increased the possibility of detection; and (4) potential witnesses were unwilling to testify in court because of fear of reprisal.

Edwards, 69 F.3d at 429-30 (citations omitted).

We have carefully reviewed the applications for the wiretaps and the supporting affidavits, as well as the transcript of the pretrial hearing on defense motions to suppress the evidence derived from the taps, and we agree with the district court that Mr. Iiland failed to rebut the presumption that the orders were proper. The district court found that several investigatory methods had been tried with little if any success, and supported this determination with specific evidence presented by the government showing that the wiretaps were necessary to develop the full scope and breadth of any conspiracy. Accordingly, the court did not err in rejecting Mr. Iiland's necessity challenge.

II. Search Warrants

On March 8, 1999, FBI agents obtained a warrant to search Mr. Iiland's residence and a mini storage unit he had rented. The search of the residence uncovered weapons, ammunition and scales, and the search of the storage unit revealed a substantial amount of powdered cocaine. Mr. Iiland moved to suppress the results of these searches on the ground that the information in the affidavit supporting the warrants was stale and therefore not sufficient to support a probable cause determination. The district court denied the motion to suppress, stating that adequate probable cause existed in view of the ongoing nature of the criminal activity alleged. We agree.

Upon review of the denial of a motion to suppress, we view the evidence in the light most favorable to the government and accept the district court's factual findings unless clearly erroneous. United States v. Le, 173 F.3d 1258, 1264 (10th Cir. 1999). The ultimate determination of reasonableness, however, "is a question of law which we review de novo, considering the totality of the circumstances." Id. Although we give the magistrate's probable cause determination "great deference," we will not defer "if the affidavit does not provide a substantial basis for concluding that probable cause existed." Id. (internal quotations omitted).

Probable cause to search cannot be based on stale information that no longer suggests that the items sought will be found in the place to be searched. The determination of timeliness, however, does not depend on simply the number of days that have elapsed between the facts relied on and the issuance of the warrant; instead, whether the information is too stale to establish probable cause depends on "the nature of the criminal activity, the length of the activity, and the nature of the property to be seized."

United States v. Snow, 919 F.2d 1458, 1459-60 (10th Cir. 1990) (citations omitted).

Mr. Iiland contends the facts recited in the affidavit supporting the search warrants at issue were too remote in time to justify a finding that probable cause existed at the time of issuance. It is true that many of the circumstances set out in the affidavit concerned activities by Mr. Iiland and codefendants that occurred in October and November of 1998, some three months before the warrant was obtained. However, the affidavit also contains facts demonstrating that the alleged drug trafficking activity was ongoing over a considerable period of time. In these circumstances the passage of time between the suspected illegal activities and issuance of the warrant diminishes in significance. See Le, 173 F.3d at 1266-67 ("passage of time is not of critical importance" where offense ongoing); United States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986) (not stale where "repeated drug offenses at several month intervals"); United States v. Sherman, 576 F.2d 292, 295-96 (10th Cir. 1978) (affidavit valid where activities "continuous in nature"). In addition, the affidavit tended to show that Mr. Iiland kept the drugs he sold in the storage unit, and that he was still renting and visiting the unit a few days before the warrant was issued. Considering the totality of the circumstances, we conclude that the information upon which probable cause was based was not impermissibly stale.

III. Joint Trial

Mr. Iiland argues he was denied due process when made to stand trial with three codefendants. He points out that he was not linked to the acts of his codefendants, and that most of the evidence of criminal activity presented at trial was directed to his codefendants' involvement in the drug conspiracy. Although Mr. Iiland was originally charged with conspiracy, the trial court granted his motion for acquittal on that charge before the case was submitted to the jury.

Mr. Iiland did not seek a severance prior to trial. His argument on appeal appears to be grounded on the fact that the trial court granted his motion for acquittal on the conspiracy count, but he did not move for severance or a mistrial at that time. We therefore review his claim for plain error, which must be "both 'obvious and...