United States v. Bishop Capers
2013 U.S. App. LEXIS 3218
| 11th Cir. | 2013Background
- Two-year Coconut Grove cocaine network investigated; Frederick led the operation with Burke; Capers and Little were buyers/dealers upstairs in the distribution chain.
- Indictment charged conspiracy to distribute five kilograms cocaine and fifty grams crack, plus multiple distribution counts; Counts 42–43 additional firearm offenses for Frederick.
- Trial: Frederick described as leader; Capers and Little testified via cooperating witnesses; wiretap evidence from Burke/Frederick phones central to case.
- Capers and Little argued they were retail purchasers with no intent to distribute; defense emphasized personal use.
- Judgments: Frederick convicted on most counts; Capers/Little convicted on conspiracy (with lesser counts for Capers) but sentenced prior to Fair Sentencing Act (FSA) with later remands for FSA resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wiretap suppression and Franks hearing | Frederick – misrepresentations in affidavit require suppression or Franks hearing. | Capers – district court erred in rejecting Franks/ suppression; material misstatements critical to probable cause. | Franks hearing not required; probable cause remained; suppression denied. |
| Sufficiency of evidence for Frederick's drug/gun convictions | Frederick – evidence insufficient to prove conspiracy and possession with intent to distribute. | Capers/Little – not applicable to Frederick; evidence supports conviction. | Evidence sufficient; convictions affirmed for substantive counts and firearms. |
| Capers’ conspiracy and possession with intent to distribute | Capers – insufficient evidence to prove conspiracy and intent to distribute for Counts 16, 17, 18, 20. | Capers – substantial juggling evidence shows lack of distribution involvement or intent. | Conspiracy conviction supported; Counts 16,17,18,20 affirmed; new-trial challenges rejected. |
| Capers/Little 404(b) and new-trial arguments | Capers/Little – improper Rule 404(b) or trial conduct merits reversal or new trial. | Capers/Little – 404(b) evidence and arguments unfairly prejudicial. | District court did not abuse discretion; 404(b) evidence and trial rulings upheld; new-trial denials affirmed. |
| SENTENCING: Fair Sentencing Act retroactivity for Capers and Little | Capers/Little – FSA retroactive; apply to pre-enactment offenses should be reconsidered. | Capers/Little – FSA not retroactive; arguments rejected by district court. | FSA retroactivity recognized; remand for resentencing under FSA. |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (false statements in warrant affidavits require a Franks hearing when necessary for probable cause)
- Caporale, 806 F.2d 1487 (11th Cir. 1986) (qualified journalists’ privilege; test for compelling subpoena)
- Sarro, 742 F.2d 1286 (11th Cir. 1984) (authentication of taped recordings; corroboration required)
- Biggins, 551 F.2d 64 (5th Cir. 1977) (recording admissibility; no reversal where independent evidence exists)
- Poole, 878 F.2d 1389 (11th Cir. 1989) (possession and intent to distribute can be proven circumstantially)
- Cochran, 683 F.3d 1314 (11th Cir. 2012) (elements of possession with intent to distribute; circumstantial proof permitted)
- United States v. Simpson, 228 F.3d 1294 (11th Cir. 2000) (conspiracy elements: agreement, knowledge of general purpose, participation)