609 F. App'x 597
11th Cir.2015Background
- Six defendants (Hyppolite, Bonita, Ductant, Wilmane Jean, Rick Jean, Sereme) were convicted after a multi‑year FBI/Florida investigation into a Fort Myers crack‑cocaine conspiracy that sourced powder cocaine from Miami and ran distribution apartments locally.
- Investigators used confidential informants, controlled buys, physical surveillance, Title III wiretaps (targeting phones of several participants), and court‑authorized cell‑site location tracking to map the conspiracy.
- On Dec. 20, 2010, police stopped a rental SUV tied via cell‑site data to Sereme; officers smelled marijuana, searched the vehicle and occupants, and Detective Kirkby conducted a further search of Sereme that revealed three baggies of cocaine hidden in his buttocks.
- Wiretap evidence and controlled purchases led to arrests and execution of search warrants at multiple apartments recovering drugs, scales, cash, a firearm, and production equipment; defendants were charged in a second‑superseding indictment and convicted after trial.
- On appeal, the Eleventh Circuit affirmed most trial and sentencing rulings but vacated Sereme’s enhanced life sentence under 21 U.S.C. § 841/§ 851 for defective § 851 notice and remanded for resentencing; it also ordered a clerical correction to Bonita’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suppression of cocaine found on Sereme after second search | Gov't: search was supported by probable cause (cell‑site, traffic violations, strong marijuana odor, Sereme's dealer status) | Sereme: second search lacked legal justification and exceeded permissible scope; evidence and derivative jail calls should be suppressed | Search was lawful; probable cause existed (collective investigative facts, odor, traffic stop); denial of suppression affirmed |
| Necessity of wiretaps (Ductant) | Gov't: wiretaps were necessary because informants yielded mainly historical info, subjects suspected informants, and surveillance could not penetrate interiors | Ductant: gov't failed to show conventional techniques were tried/likely to fail | District court properly found necessity; denial of suppression affirmed |
| Juror removal for cause (Bonita) | Bonita: striking Juror 8 and in‑camera interview violated Sixth Amendment, deprivation of fair trial | Gov't: juror admitted inability to separate prior knowledge; in‑camera interview was agreed and appropriate to protect HIPAA | Court did not abuse discretion; juror incapable of impartiality; removal affirmed |
| § 851 notice adequacy for sentence enhancements (Sereme; Hyppolite) | Sereme: gov't failed strict § 851 pretrial notice—notice misidentified prior conviction (marijuana v. cocaine base); amended judgment entered after trial; enhancement invalid | Gov't: errors were clerical; initial notices gave adequate warning; amended notice corrected clerical errors | For Sereme, § 851 notice defective—vacated life enhancement and remanded for resentencing; for Hyppolite, notice adequate and enhancements affirmed |
| Clerical discrepancy in Bonita’s sentence | Bonita: oral sentence referenced § 841(b)(1)(C) (30‑yr) vs. written judgment reflecting life under § 841(b)(1)(A)(iii); confusion over supervised release | Gov't: written judgment and sentencing intent were to impose life under enhancement; clerical error in judgment | Court concluded intent was life under § 841(b)(1)(A)(iii); affirmed sentence but remanded to correct clerical error in judgment |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (Sup. Ct. 1966) (Miranda warning requirement)
- Illinois v. Gates, 462 U.S. 213 (Sup. Ct. 1983) (probable cause under totality of the circumstances)
- Watson v. United States, 423 U.S. 411 (Sup. Ct. 1976) (warrantless public felony arrests on probable cause)
- Apprendi v. New Jersey, 530 U.S. 466 (Sup. Ct. 2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury except prior convictions)
- United States v. Lueck, 678 F.2d 895 (11th Cir. 1982) (odor of marijuana can supply probable cause for warrantless search)
- United States v. Perez, 249 F.3d 1261 (11th Cir. 2001) (clerical errors in § 851 context may be curable)