*1 1187 Cir.1989). 427, (4th circumstances, We also these F.2d 433 district court’s finding Vasquez standard. adopt choose to this had not sustained his showing burden that he was a minor standard, applicable Applying participant clearly is not erroneous. See reasonably Vasquez believe could have we Garcia, 153, United States v. 920 F.2d 154 possessed firearms would be foreseen that (2d Cir.1990). crack-packaging ac in connection with his apartment. As this Court tivities observed, much tools
has “firearms are as CONCLUSION recognized commonly trade as are of the foregoing, Based on the paraphernalia.” articles of narcotics Unit the district court is affirmed. 267, (2d Crespo, F.2d 271 ed v. 834 States Cir.1987), denied, 1007, cert. 485 U.S. 108 (1988). 1471, 99 Given
S.Ct. L.Ed.2d large quantity of narcotics and narcot paraphernalia apartment
ics where arrested, given
Vasquez was and the fact types
that three
of various caliber ammuni
apartment in
tion were strewn about the
UNITED STATES of America
view,
plain
we do not believe that
dis
possession
determination that
trict court’s
PHILLIPS, Appellant.
Darnell
reasonably
foreseeable was
er
See, e.g.,
roneous.
v. Bian
United States
No. 91-3252.
913-14;
co, 922 F.2d at
States v.
United
Appeals,
United States Court of
Garcia,
a two-level downward 3B1.2(b), 3, provides Opinion to U.S.S.G. which Amended March 1992. adjustment such an when a defendant is a Rehearing Rehearing En Banc Denied participant” in A “minor an offense. de 11, May participation fendant who claims minor preponderance must establish
evidence that he or she is entitled to a
reduction due to his or her reduced level of See,
culpability. e.g., United States v..
Garcia, (2d Cir.1990). 920 F.2d A
district court’s as to a defendant’s activity
role in a criminal deter is a factual
mination that will not unless be overturned
“clearly erroneous.” States v. United Garcia, (2d Cir.1991), — denied, U.S. -,
cert. 112 S.Ct. (1991).
Vasquez argues completely that he was everyone
subordinate else at the time agents apartment, entered the However, participant.”
therefore a “minor ample presented
there was trial evidence
indicating Vasquez co-equal was a drug organization
member of the who was large quantities
entrusted with of narcotics packaged for distribution. Under *2 Jr., Carpenter, Atty.,
William C. U.S. Andrews, Atty., Richard G. First Asst. U.S. Prettyman, Robert J. Atty., Asst. U.S. Wil- Del., mington, appellee. for Murphy, Murphy, William H. William H. Associates, Baltimore, Md., Jr. & appel- lant. MANSMANN,
Before: HUTCHINSON ROSENN, Judges. Circuit OPINION OF THE COURT MANSMANN, Judge. Circuit appeal In this from a of sen- trial, jury tence after a we are faced with questions of whether the district court by failing suppress erred evidence ob- through tained wiretap, court ordered failing grant acquittal on Count II of jeop- the indictment on basis double II. ardy, failing adequately charge We question review de novo the and, multiple conspiracies, by enhancing complete whether a full and statement of Sentencing the offense level under the necessity wiretap was made in the *3 any Guidelines. Because we do find application. Once it is determined that the legal error or abuse of discretion on the made, statement was we will review the court, part of the district we will affirm the necessity determination of for an
judgment of conviction and order of sen- abuse of discretion. We plenary have re- tence. question view of the of the district court’s
refusal to enter a acquittal as to Count II on the basis of jeopardy double I. question since it involves a of law. We Phillips’ challenge review to the instruc- 1990, February In Grand federal multiple conspiracies tions on given to the Jury for the District of Delaware indicted jury by the district court under an abuse of Phillips multiple ranging Darnell on counts discretion respect standard. With to sen- conspiracy to distribute cocaine tencing Sentencing Guidelines, under the (Count I); conspiracy telephone to use a we will not reverse district court’s deci- (Count felony drug II); facilitate a offense sion to enhance the offense level unless we telephone use of a felony facilitate determine that the factual support- (Counts IV, VIII, drug X, XV, XVI, offense ing the enhancement erroneous. XVIII, XX) possession and and with intent (Count XXI). to distribute cocaine III. The investiga- indictment arose out of an Phillips contends that the district by tion Delaware State Police detectives suppressed have should the contents including electronic by surveillance a court wiretapped conversations because wiretap. ordered The dis- investigation government failed to make a full and closed that travelled Philadel- complete as to statement whether tradition
phia approximately three to times four investigative al techniques had been tried purchase month to four to six ounces of dangerous. and failed would too or be The cocaine which he then Darryl sold to Jar- necessity statement which mon co-conspirators. and his statutory requirement refers is a of 18 2518(1), provides U.S.C. which that an § arraignment, After his Phillips, with his application authorizing order co-defendants, filed several motions with interception of communications be “shall particular, In district court. writing upon made oath or affirmation” raised issue government that the had and complete shall include “a full and investigative failed to exhaust all means statement to whether or as not other inves obtaining before the court for the order tigative procedures have been and tried wiretap placed which was co-defen- his why they reasonably appear failed or telephone. dant’s The district court denied unlikely to succeed if tried or to too be the defendants’ motions. co-de- dangerous.” 2518(1). 18 U.S.C. § later guilty pleas. fendants entered Phillips argues if other investi- trial, After a many which of gative methods have been or exhausted Phillips’ co-defendants against testified dangerous impractical, would be too him, Phillips was guilty found on all wiretap granted. should a order be counts. He was sentenced the district government contends that this is newa 16, 1991, April court on months 188 theory not advanced before district incarceration, years five supervised release court. Our review of the record reveals special and a $500 assessment. Darryl suppress Jarmon’s motion to timely appeal filed a from the wiretap August conviction the evidence was denied on sentence. along 1990 sup- motion to 1190 Anderson, Law and 1 Wharton’s Criminal police search at
press
evidence of the
(1957).
Wharton’s
his arrest. The district court Procedure
the time of
deny
wiretap
involving
such
in cases
crimes
treated the motion
Rule arose
were
though
adultery
dueling
both defendants
where
bigamy,
evidence as
as
Therefore,
arguments.
advancing
consequences
of the crimes were
immediate
issue as
purposes, we will treat the
review
States
felt
those involved. United
placed
(2d
before the district
having
Bommarito,
been
n. 3
one
F.2d
Cir.1975).
court.
interpre-
place
as strict an
We refuse
inapplicable to
Rule is
Wharton’s
wiretap
statute as
tation on
count two for two
Phillips’ conviction on
*4
Moreover,
reviewed the
we have
wishes.
First,
Rule does not
reasons.
Wharton’s
by
govern-
application
in the
the
statement
persons than are neces
apply where more
normal investi-
regarding
ment
the use of
complete the substantive offense
sary to
the
gative procedures and note that
Iannelli,
conspiracy.
are involved
use of an
government believed that
the
15,
15;
at 1292 n.
was a small
telephone
facilitate the distri
to use the
to
have
acquainted and outsiders would
cocaine in violation of 21 U.S.C.
bution of
suspect. Appendix at
immediately
been
supported this
846. The evidence at trial
§
Thus, we conclude that the district
785-86.
charge
respect to the involvement of
with
by
court did not abuse its discretion
consid-
Thus,
participants.
while
more than two
a
ering
government’s
the
affidavit to be
necessary
complete
only
persons are
to
two
necessity.
complete statement of
full and
using
of
the tele
the substantive offense
facilitate the distribution of co
phone to
argues
judg
next
that a
caine,
persons were involved
more than two
acquittal
ment of
should have been entered
conspiracy to commit the substantive
by
II
with
the district court as to Count
because
II,
App. at 805.
conspiracy
telephone
to use the
offense.
Count
felony drug
a
offense was includ
facilitate
Second,
Rule “has cur
Wharton’s
I, conspiracy
ed in Count
to distribute co
vitality only
judicial presumption,
rent
as a
caine.
reasons that because two
legislative
in the absence of
applied
to be
people
necessary
telephone
are
to have a
Iannelli, 420
contrary.”
intent to the
U.S.
necessary
people
conversation and two
are
782,
at 1292. At least two
at
95 S.Ct.
conspiracy,
a
then Count II is du
to have
Appeals have held
United States Courts of
plicitous
general conspiracy
the
Count
Congress
did not intend Wharton’s
Furthermore, Phillips argues,
I.
under
846,
conspiracy
apply
Rule to
to section
the
Rule,
people may
Wharton’s
two
not be
charged Phillips
that the indictment
section
conspiracy
convicted of
to commit a crime
violating,
consequences
the
of
with
because
requires
people
if
to commit
the crime
two
by society
large.
conspiracy
are felt
States,
770,
it. Iannelli v. United
420 U.S.
Bommarito,
jury,
would have confused them its ref-
tual determination
sentencing
only
erence to numerous defendants when
which we can reverse
if we find the
Moreover,
one co-defendant was on trial.
clearly
decision to be
erroneous. 878 F.2d
charge given by
the district court did
at 127. We consider a
important
include the
Phil-
most
element of
when, although
erroneous
there is evidence
Indeed,
lips’ requested charge.
it,
support
left,
reviewing
we are
after
instructed that it could find
evidence,
all the
with a firm conviction that
*5
guilty
conspiracies alleged
of the
in Counts
a mistake has been made. Ciba-Geigy
conspiracy
I and II
if a
existed be- Corp.
Co., Inc.,
v. Bolar Pharmaceutical
if
Phillips
person
tween
and one other
and
(3d Cir.1984).
747 F.2d
850
conspiracy
of
he was a member
the
background
comment to Guideline
charged in the indictment and not some
provides
3B1.1 notes: “This section
§
conspiracy. Clearly,
other
the district
range
adjustments
to increase offense
court’s instruction to the
contained the
upon
level
the
based
size of the criminal
charge
unduly
essentials of the
without
(i.e.,
organization
partici-
the number of
confusing
jury.
the
We find that the dis-
offense)
pants
degree
in the
and the
in
trict
did not abuse its discretion
responsible
the defendant
which
was
for
failing
give
requested charge.
the
committing
Sentencing
the offense.”
Manual,
3B1.1, commentary.
Guidelines
§
IY.
apply
is
Clearly,
3B1.1
intended
§
Finally, Phillips’
argument
last
ad
activity engaged
by
criminal
in more than
Phillips
dresses the sentence itself.
con
Moreover,
participant.
one
because
upward
tends
departure
that the
of four
apply
3B1.1 does not
when a defendant
§
by
levels
the district court was a violation engages
activity
in criminal
that -is exe-
Sentencing
of the
Guidelines because the
others,
for
3B1.1
cuted without
aid of
§
allegedly
district court made an
erroneous
apply, “the defendant must have exer-
finding
Phillips
that
was a leader or an
degree
cised some
of control over others
3Bl.l(a)
organizer under
of the Guide
in
§
involved
the commission of the offense.”
government correctly
lines. The
notes that
Fuller,
v.
United States
upward
the district court did not make an
(1st Cir.1990).
1220
See also United
Guidelines,
rather,
departure from the
but
Mares-Molina,
F.2d
States v.
enhanced
offense level due to his
(9th Cir.1990) (“in distinguishing ‘leaders
organization.
role in the
‘managers
super-
organizers’
and
from
and
visors’,
degree
orga-
... some
control
Ortiz,
In United
the exercise of
times when he would travel to
chose the
participation
Philadelphia
people
the nature of the
in
to travel
and recruited
offense,
cocaine,
commission of the
the recruit- with him. Once he obtained
storing
Phillips’ possession
it at
in
responsible
much cash
would
was
that he was able
receive
until it was needed
bear out
different
locations
two
profits
Moreover,
larger share of the
than others in
to distribute.
Jarmon
organization.
Phillips’ supply
court found that when
was
Darryl
gone, he directed others to
Jarmon.
that
We conclude
there is sufficient
finding
that
The court concluded with
record evidence
which the district
culpable
Darryl
equally
court could conclude that
in
acted
organizer
Jarmon as an
of the distribution
organizer
role of
or leader. Conse-
(Guidelines
scheme.
3B1.1 allows for a
quently,
that,
say
determining
we cannot
in
finding
person
that more than one
held an
role,
that
acted
that
the district
aggravating
organization
and
role
erroneous.
provides
sentencing accordingly.) App.
Y.
at 682-84.
We will affirm the
of convic-
independent
Our
review discloses that
tion and order of sentence entered
record,
testimony by
which includes
district court.
co-conspirators
transcripts
and
wiretaps, supports
findings
of the
ROSENN,
Judge, concurring
Circuit
district court. Derrick Powell
testified
dissenting.
Phillips’ possession
he
cocaine in
saw
I, II,
join
parts
majori-
I
III
occasions,
separate
on two
once in Philadel-
ty’s opinion,
respectfully
but
dissent from
phia
County
Darryl
and once in Sussex
part
affirming Phillips’
IV
sentence.
I can-
App.
Jarmon’s house.
at 290-92. More-
agree
majority
with the
there is
over,
he testified that
if
did not
sufficient record evidence from
which
Philadelphia,
travel to
there would not be
*6
district court could
Phillips
conclude that
any
App.
cocaine to sell.
at 298.
in
organiz-
acted
the role of a leader or an
example,
evening
For
on the
of Decem-
er.
27, 1989,
placed
ber
Jarmon
more than ten
majority
indepen-
The
concludes that an
Phillips’
attempting
calls to
house
to con-
supports
dent review of the record
the dis-
tact his source.
attempted
While Jarmon
finding
Phillips
trict court's
that
acted as a
Phillips,
to reach
Jarmon received calls
“organizer”
“leader” or an
of criminal ac-
people
from several
who wanted to
if
know
tivity.
Phillips
There is evidence that
re-
anything yet
Jarmon had heard
about the
persons
accompany
cruited one or two
to
App.
status of the cocaine.
at 509-512.
picked up drugs
him when he
in Philadel-
previous evening,
theOn
Jarmon had asked
phia
Phillips
principal
and that
was a
Phillips
going
Philadelphia
if he was
to
However,
source of cocaine to Jarmon.
in
cocaine,
get
supply
a
of
but Jarmon was
mind,
my
this limited
in-
evidence alone is
Phillips go.
not able to demand that
App.
support
sufficient
the severe four-level
Clearly, Phillips
at 501.
was able to set his
leadership
organiza-
enhancement
or
purchasing
own timetable and manner of
under United States v. Or-
activity
tional
recruiting
the cocaine as well as
others to
tiz,
(3rd Cir.1989).
See
accompany him.
Maj. Opinion at 1191.
At
liquor
the time of his arrest at a
store
principal
One of the
considerations deter-
Phillips
on December
was found mining leadership
organizational
or
charac-
$3,410
pocket.
to have
in cash in his
This
Ortiz
degree
teristics under
is
“the
of con-
day
was less than a
after he had returned
authority
trol and
exercised over others.”
purchasing
in Philadelphia.
cocaine
Ortiz,
Here,
lant se par- who judges to the
ing submitted been of this court and decision
ticipated in the judges of the circuit all available other service, and no regular active circuit having in the decision concurred
judge who majority of the rehearing, and a
asked regular ac- circuit in judges circuit rehearing having voted
tive service banc, petition for re-
by the court
hearing is denied. COMPANY, ELECTRIC
MARITIME
INC., Corporation, A York New *8 BANK, Jersey A New JERSEY
UNITED Gill; Banking Corporation; Michael Inc., Company, Maritime Electric Jersey Corporation.
A New Plaintiff, GILL, Third-Party
Michael COMPANY, ELECTRIC
MARITIME
INC., Corporation; Thom A New York Capacity Gill, Individually and in his
as Com Maritime Electric
as President of (N.Y.), Third-Party Inc.,
pany, Defen
dants, rehearing. panel
*Judge as to Rosenn voted