United States v. Foy
641 F.3d 455
| 10th Cir. | 2011Background
- Foy was convicted in 2009 by jury of conspiracy to manufacture/possess with intent to distribute cocaine base and/or cocaine and of attempting to possess with intent to distribute 500g–<5kg; district court sentenced to concurrent 360 months for each count.
- The conspiracy spanned Jan 2006–Nov 2007 in Kansas City, KS and KS City, MO, with DEA wiretap investigation beginning in 2006.
- Wiretap applications referenced an outdated AG Order; new AG Order expanded authority, but all applications were approved by an authorized official.
- Evidence against Foy largely came from wiretaps and co-conspirator Wesley’s phone, plus surveillance showing Foy at drug-transaction scenes.
- Pretrial suppression motion argued improper authority reference and necessity; district court denied suppression; trial produced substantial wiretap evidence against Foy.
- At sentencing, the court held Foy accountable for at least 150 kilograms of cocaine, applied a firearm enhancement, and imposed 360-month sentences; conviction for conspiracy affirmed, but an attempt conviction was vacated for improper venue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wiretap authority misidentification | Government argues authority was properly delegated despite outdated order | Foy argues suppression due to defective authorization identity | Suppression not required; clerical defect tolerated |
| Wiretap necessity | Affidavits sufficiently show necessity given traditional techniques failed | Affidavits were too generic and goals too broad | No abuse of discretion; necessity satisfied |
| Sufficiency of evidence for conspiracy | Interdependence shown via pooled resources with Wesley | Interdependence with others not shown | Sufficient interdependence; conspiracy conviction upheld |
| Venue for attempt charge | Venue proper via Wesley's acts in KS | No acts by Foy in KS; venue improper for attempt | Vacated conviction and sentence for attempt; venue improper |
| Juror misconduct—new trial | Misconduct potentially affected verdict | No impact on Foy’s charges; no prejudice shown | No abuse of discretion; new trial denied |
| Drug quantity and firearm enhancement at sentencing | Quantity established via Humphrey and Santa-Anna; firearm possession foreseeable | Challenge to reliance on non-charged conspiracy quantities and foreseeability | Drug quantity and firearm enhancement upheld; sentence affirmed |
Key Cases Cited
- Chavez v. United States, 416 U.S. 562 (1974) (failure to report identity of authorizing official not grounds for suppression)
- Giordano, 416 U.S. 505 (1974) (necessity of wiretaps to be narrowly tailored to circumstances)
- Zapata, 546 F.3d 1179 (10th Cir. 2008) (necessity and scope of wiretaps in complex conspiracies)
- Ramirez-Encarnacion, 291 F.3d 1219 (10th Cir. 2002) (necessity and scope of wiretaps; identification of conspirators)
- United States v. Iiland, 254 F.3d 1264 (10th Cir. 2001) (procedure for wiretap authorization)