United States v. George Thompson, 690 F.3d 977

December 2008 government surveilled Thompson under a wiretap based on a 68-page affidavit alleging a multi-person illegal gambling enterprise; evidence included CWs, toll records, surveillance, and trash pulls; wiretap expanded to possible firearms, narcotics, extortion, visa fraud, and immigration offenses; searches of Thompson's and Baggett's properties followed the wiretap; November 2009 arrest of Tri Cam Le led to DeLeo's apartment search and storage-room discovery; two joint trials proceeded with multiple suppression and severance motions; Thompson ultimately challenged double jeopardy after a midtrial suppression ruling.
Evidence and trial posture included challenging suppression of wiretap, severance issues, and various evidentiary rulings; Court addressed Franks hearing request and necessity finding; Thompson and DeLeo separately challenged search and travel evidence; Baggett challenged sufficiency and joint trial dynamics.
Thompson and DeLeo sought suppression of wiretap evidence; motions denied; Thompson separately challenged prior arrest evidence and travel to China as flight; DeLeo challenged storage-room search; Thompson and Baggett faced jury verdicts with various convictions; Thompson's count five acquittal was reversed due to double jeopardy, resulting in vacating that conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Wiretap suppression: probable cause and necessity	Thompson, DeLeo: lack of probable cause; necessity not shown	State failed to show five or more participants; necessity insufficient	Probable cause and necessity upheld; wiretap admissible
Franks hearing necessity	Omission of CWs' criminal histories; warrant invalid without Franks hearing	Omissions not clearly critical; probable cause remained	No Franks error; no abuse of discretion
Joinder and severance of Thompson and Baggett	Joinder improper; severance required to avoid prejudice	Joint trial proper due to overlap in conspiracy and evidence	No abuse of discretion; joinder affirmed and severance denied
Evidence: Thompson's prior arrest and flight	Prior arrest and China travel unlawfully admitted as improper character evidence and improper flight evidence	Evidence admissible to show knowledge/intent and consciousness of guilt	Admissible under proper purpose and limiting instructions; not error
Storage-room search outside DeLeo's apartment	Search exceeded scope of warrant/consent	Storage room appurtenant to apartment; lawful scope	Search permissible; storage room within scope of warrant/consent

Illinois v. Gates, 462 U.S. 213 (1983) (totality-of-the-circumstances probable cause standard)
United States v. Bennett, 563 F.2d 879 (7th Cir. 1977) (definition of five-or-more persons in gambling offenses excludes customers)
United States v. West, 589 F.3d 936 (8th Cir. 2009) (necessity in wiretap analyses supported by other techniques)
United States v. Daly, 535 F.2d 434 (7th Cir. 1976) (necessity not exhausted; common-sense standard)
United States v. Macklin, 902 F.2d 1320 (8th Cir. 1990) (necessity finding reviewable for clear error)
United States v. Liveoak, 377 F.3d 859 (8th Cir. 2004) (co-conspirator joinder depends on overarching scheme)
United States v. Pou, 953 F.2d 363 (8th Cir. 1992) (overlap in evidence supports joinder)
United States v. Hyles, 521 F.3d 946 (8th Cir. 2008) (knowledge of felon status; constructive possession framework)
Smith v. Massachusetts, 543 U.S. 462 (2005) (double jeopardy when midtrial acquittal reversed after defense rested)
Smalis v. Pennsylvania, 476 U.S. 140 (1986) (Double Jeopardy context in midtrial rulings)
United States v. Brekke, 97 F.3d 1043 (8th Cir. 1996) (de novo review of legal questions on appeal)