United States v. William Demetro HoldenUnited States v. William Demetro Holden
AFFIRMED.
Bruce Alan Gardner, Law Office of Bruce Alan Gardner, Huntsville, AL, James Kendrick, Attorney at Law, Birmingham, AL, Bruce Steven Harvey, Law Office of Bruce Harvey, Atlanta, GA, Kevin L. Butler, Melanie S. Keiper, Rick Burgess, Allison Case, James Tobia Gibson, Federal Public Defender, Birmingham, AL, for Defendants-Appellant/s.
Before MARTIN and ANDERSON, Circuit Judges, and COTE,* District Judge.
PER CURIAM:
This is a consolidated direct appeal of final judgments entered against four criminal defendants. For the reasons that follow we affirm the convictions.
I. BACKGROUND
On December 29, 2011, a twenty-six count superseding indictment was filed in the U.S. District Court for the Northern
Count Eleven charged Kingy with being a felon in possession of a firearm. Count Eighteen charged Tibbs with being a felon in possession of a firearm. Counts Twenty-Three through Twenty-Six charged Kingy and one of the non-appellants with money laundering.
The remaining counts variously charged certain of the non-appellant defendants with, among other things, possessing with intent to distribute cocaine and crack, distributing cocaine, distributing marijuana, possessing a firearm with intent to distribute narcotics, and being a felon in possession of a firearm. Each of the eleven non-appellants named in the indictment either pled guilty or had the charges against him or her dismissed. The four appellants jointly proceeded to trial.
Prior to trial, three of the appellants—Kingy, Tibbs, and Brown—moved to suppress recordings of calls, and any evidence derived from those calls, intercepted by wiretaps on Kingy‘s telephone. On July 5, 2012, their motions to suppress were denied.
Also prior to trial, on July 18, at the Government‘s request, Count Eighteen, charging Tibbs with being a felon in possession of a firearm, was dismissed without prejudice. The record reveals that the dismissal was based on the Government‘s realization that it had failed to present the grand jury with evidence to support the charge. After the dismissal of Count Eighteen, a separate, one count indictment was filed against Tibbs on July 31, 2012 in the U.S. District Court for the Northern District of Alabama in case number 12cr329 (KOB), charging him with being a felon in possession of a firearm. It is undisputed that the new indictment was based on the same facts underlying the dismissed count in case number 11cr399 (KOB).
Trial commenced in case number 11cr399 (KOB) on July 23, 2012. The Government‘s evidence largely consisted of the testimony of several of the non-appellants named in the indictment, who cooperated with the Government, the testimony of federal agents, and recordings of wiretapped calls made from and to Kingy‘s telephone. In general terms, the evidence established that Kingy was at the center of a marijuana-distribution scheme, supplying marijuana to several of the other defendants for resale.
The evidence against Kingy included recordings of numerous drug-related conversations he had with others. The evidence against Tibbs consisted of the testimony of agent Patrick Boyd (“Boyd“), the testimony of a cooperating co-defendant, and twelve recorded telephone calls between Kingy and Tibbs. The evidence against
On August 1, before the Government rested, it was granted a motion to dismiss one of the four money-laundering counts against Kingy, and it announced that, as to the Cocaine Conspiracy count, which referred to both cocaine and crack, the Government would proceed only with respect to the cocaine and not with respect to the crack. After the Government rested on August 1, each defendant moved for a judgment of acquittal under
On August 3, the jury returned special verdicts. On the Cocaine Conspiracy count, Kingy and Tibbs were found not guilty; Kingy was also found not guilty on the three remaining money-laundering counts, but was found guilty on the four counts of distributing marijuana and on the one count of being a felon in possession of a firearm. On the Marijuana Conspiracy count, Kingy was found guilty of conspiring to possess with intent to distribute, and to distribute, marijuana weighing one thousand kilograms or more—the amount charged in the indictment; Tibbs, Brown, and William were found guilty of the lesser included offense of conspiring to possess with intent to distribute, and to distribute, marijuana weighing less than one hundred kilograms—the smallest quantity for which the jury could find them responsible.1
In case number 12cr329 (KOB), on September 6, Tibbs again moved to suppress the evidence derived from the wiretaps on Kingy‘s telephone. Based on the intercepted conversations between Kingy and Tibbs, agents had obtained a search warrant for Tibbs‘s home and had discovered the firearm that formed the basis of the felon-in-possession charge ultimately brought in case number 12cr329 (KOB). Tibbs‘s motion to suppress was denied. On October 17, Tibbs moved to dismiss the indictment in case number 12cr329 (KOB) based on an alleged violation of the Speedy Trial Act. This motion to dismiss was denied. On December 17, Tibbs pled guilty to the felon-in-possession charge in case number 12cr329 (KOB), reserving his right to appeal the denial of these motions.
Judgment entered against William on January 9, 2013; he was sentenced principally to thirteen months’ imprisonment. Judgment entered against Brown on January 24; he was sentenced principally to twenty-four months’ imprisonment. Judgment entered against Kingy on April 15; he was sentenced principally to 365 months’ imprisonment on the Marijuana Conspiracy count, and to 120 months’ imprisonment on the marijuana distribution counts and felon-in-possession count, to
II. DISCUSSION
Appellants raise a number of issues.2 Kingy and Tibbs argue that the district court erred in denying the motions to suppress the wiretaps. Tibbs, Brown, and William claim that the district court erred in denying the Rule 29(a) motions for a judgment of acquittal. Tibbs and Brown further assert that there was a material variance between what was charged in the indictment with respect to the Marijuana Conspiracy and what was proved at trial. Tibbs additionally contends that the district court erred in denying his motion to dismiss in case number 12cr329 (KOB) based on the Speedy Trial Act.
A. Suppression of Evidence
Two applications were made and granted for wiretaps on Kingy‘s telephone. The first was made and granted on July 20, 2011. After the interception period associated with the July 20 application had expired, a subsequent application was made and granted on August 22, 2011. Neither application was accompanied by a Department of Justice (“DOJ“) authorization memo. Additionally, while the August 22 application identified the authorizing official as Deputy Assistant Attorney General Jason M. Weinstein (“Weinstein“), it turned out that the application was authorized not by Weinstein but by Deputy Assistant Attorney General Kenneth Blanco (“Blanco“). It is undisputed that both Weinstein and Blanco had the appropriate authority to authorize a wiretap application.
Appellants make several arguments as to why the district court erred in denying the motions to suppress. Kingy argues that the wiretap evidence should have been suppressed both because the wiretap applications were not accompanied by DOJ authorization memos and because the August 22 application misidentified the authorizing official. Tibbs makes the separate argument that the applications failed to establish the necessity of the wiretaps. These arguments are addressed in turn.
“In reviewing a district court‘s denial of a motion to suppress, we review the findings of fact for clear error and the application of law to those facts de novo.” United States v. Lee, 586 F.3d 859, 864 (11th Cir.2009) (citation omitted). “When considering a ruling on a motion to suppress, we construe all facts in the light most favorable to the party prevailing in the district court—here, the government.” United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.2008).
1. Absence of DOJ authorization memo and misidentification of authorizing official
By statute, both a wiretap application and a court order approving that application must specify the identity of the DOJ official who authorized the application—the “authorizing official.” See
Here, Kingy points to no authority, and we have found none, holding that the absence of a DOJ authorization memo, standing alone, justifies suppression. The First Circuit recently rejected an argument similar to Kingy‘s. See United States v. Lyons, 740 F.3d 702, 722-23 & n. 6 (1st Cir.2014).3
We turn next to the argument based on the misidentification of the authorizing official in the August 22 application. Wiretap evidence may be suppressed if, among other things, it was unlawfully intercepted or the court approval order was insufficient on its face. See
In Giordano, the wiretap application identified as the authorizing official a DOJ officer with the requisite statutory authority. 416 U.S. at 508-09. In other words, the application and ensuing approval order were facially sufficient. It turned out, however, that the application had in fact putatively been authorized by a different DOJ officer, who lacked the necessary authority. Id. at 509-10. Reasoning that “the provision for pre-application approval was intended to play a central role in the statutory scheme,” the Court held that the evidence had been unlawfully intercepted and that suppression was appropriate. Id. at 528.
In Chavez, like in Giordano, the wiretap application identified as the authorizing official a DOJ officer with the requisite statutory authority, such that the application and ensuing approval order were facially sufficient. 416 U.S. at 566. And like in Giordano, it turned out that the person identified on the application was not, in fact, the person who had provided authorization. Id. at 570. Unlike Giordano, however, the person who had actually provided authorization in Chavez in fact possessed the necessary statutory authority. Id. at 574. Because the statutory requirement of pre-application approval by an appropriate officer had not been violated, the Court held that suppression was not necessary. Id. at 568-69.
Here, with respect to the August 22 application‘s misidentification of the authorizing official, Kingy‘s argument is foreclosed by Chavez. Like in Chavez, the August 22 application identified an appro-
The case on which Kingy principally relies, United States v. Lomeli, 676 F.3d 734 (8th Cir.2012), is distinguishable in at least two ways. First, there, unlike here, the application was deemed facially insufficient in that it did not specify the name or position of the authorizing official; instead, the application merely said that authorization had been provided by “an appropriate official of the Criminal Division [of the DOJ].” Id. at 740. Second, there, unlike here, the Government offered no indication that the identity of the authorizing official was ever revealed. Id. at 741.
2. Necessity
Tibbs contends that the motion to suppress should have been granted because the Government failed to make the requisite showing of necessity. This argument fails as well.
By statute, “[e]ach [wiretap] application shall include ... a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”
The “necessity” requirement in
Here, the necessity requirement was satisfied. The affidavit in support of the wiretap applications sufficiently explained why “investigative techniques that reasonably suggest themselves” were insufficient in this case. United States v. De La Cruz Suarez, 601 F.3d 1202, 1214 (11th Cir.2010) (citation omitted). That affidavit outlined in detail the traditional investigative techniques that either had been employed or had not been attempted based on dangerousness or a lack of probability of success. As detailed in the affidavit, alternative investigative measures such as Government informants and physical surveillance, while successful in obtaining some information, were insufficient for agents to determine all the methods, patterns, and members—in short, the full scope—of the drug distribution conspiracies.
The district court did not err in denying the motions to suppress evidence derived from the wiretaps on Kingy‘s telephone.
B. Sufficiency of the Evidence
Tibbs, Brown, and William argue that the district court erred in denying the Rule 29(a) motions for a judgment of acquittal on the ground that the evidence was insufficient to support a conviction on all counts. We address this argument as to each of them. While each of the three defendants argued in their Rule 29 motions that there was insufficient evidence that they were engaged in the conspiracy
“We review the denial of a motion for judgment of acquittal de novo, but viewing the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government‘s favor.” United States v. Barsoum, 763 F.3d 1321, 1329-30 (11th Cir.2014) (citation omitted). “A jury‘s verdict cannot be overturned if any reasonable construction of the evidence would have allowed the jury to find the defendant guilty beyond a reasonable doubt. The evidence need not be inconsistent with every reasonable hypothesis except guilt, and the jury is free to choose between or among the reasonable conclusions to be drawn from the evidence presented at trial.” United States v. Capers, 708 F.3d 1286, 1297 (11th Cir.2013) (citation omitted).
1. Tibbs
Tibbs argues that his conviction on the Marijuana Conspiracy count was not supported by sufficient evidence, because it was substantially premised on the testimony of Boyd, which Tibbs claims was inadmissible in two ways. Without this testimony, Tibbs says there would have been insufficient evidence to convict. “We review for an abuse of discretion evidentiary rulings of the district court to which a timely objection is made....” United States v. Joseph, 709 F.3d 1082, 1093 (11th Cir.2013).
First, Tibbs argues that Boyd should not have been permitted to testify as an expert on drug trafficking slang. “The operations of narcotics dealers, including drug codes and jargon, are proper subjects of expert testimony.” United States v. Emmanuel, 565 F.3d 1324, 1335 (11th Cir.2009). Pursuant to
At the time of trial, Boyd had served in the FBI for seven years. For the two years before trial, he had been based in Alabama, focusing primarily on drug violations and drug-related organized crime. Prior to that, he had served in San Diego, dealing exclusively with drug-related organized crime. He had received extensive training on narcotics and narcotics trafficking, including specific training on drug slang and codes. At the time of trial, Boyd had participated in forty to fifty drug distribution investigations, and all of the cases in his seven-year career had involved marijuana to some extent. He had been involved with at least a dozen wiretaps and had previously heard slang and code words for marijuana. One of the ways that he learned the meaning of such words was through interactions with other law-enforcement officers and with numerous cooperating drug informants. The district court acted well within its discretion in determining that Boyd‘s experience rises to the level of “extensive.”
Second, Tibbs argues that the district court erroneously allowed Boyd to make a voice identification without an adequate foundation.4 According to
Such an opinion was offered here. Boyd testified that he had previously spoken with Tibbs in person, and that, in his opinion, it was Tibbs‘s voice on the recordings. We perceive no abuse of discretion in the district court‘s permitting Boyd to make a voice identification of Tibbs.
The district court did not abuse its discretion in admitting Boyd‘s testimony, and, in light of that testimony, there was sufficient evidence to find Tibbs guilty of conspiring to distribute, or to possess with intent to distribute, marijuana.5
2. Brown
Brown argues that, while the recordings played at trial fairly indicate that both he and Kingy were involved in the distribution of marijuana, those recordings do not show that the two men sold marijuana as part of the same conspiracy. This argument is easily dismissed.
3. William
William argues that the evidence was insufficient because the testimony of his ex-girlfriend was vague, as she testified that she brought marijuana to William at Kingy‘s request “ten to twenty” times, but was unable to specify any exact dates or times. William cites no authority to support the proposition that such specificity was required.
To sustain the conviction for conspiracy to possess with intent to distribute and to distribute marijuana, the Government was required to offer sufficient evidence to prove beyond a reasonable doubt that: (1) an illegal agreement existed to possess with intent to distribute or to distribute marijuana; (2) William knew of the agreement; and (3) William knowingly and voluntarily joined the agreement. United States v. Isnadin, 742 F.3d 1278, 1305 (11th Cir.2014). Although the Government was not required to prove that William knew every detail or participated in every stage of the conspiracy, it must have established that he knew the essential nature of the conspiracy. Id.
Here, that showing was made. William‘s ex-girlfriend testified that she held marijuana for Kingy from 2010 to 2011 and that, during this time, at Kingy‘s request she would bring marijuana to William, who would then contact someone to come pick it up. She additionally testified that she would hold drug proceeds for Kingy, and that, on several occasions, it was William who brought the money to her on Kingy‘s behalf.
C. Material Variance
Tibbs and Brown contend that there was a material variance between what was charged in the indictment and what was proved at trial.6 The indictment, in the Marijuana Conspiracy count, charged that nine individuals, including all four appellants, conspired to possess with intent to distribute, and to distribute, one thousand kilograms or more of marijuana from 2002 to 2011. Tibbs and Brown say that, in contrast to this single conspiracy consisting of nine individuals, the proof at trial showed, at most, multiple, independent conspiracies, each consisting of Kingy and one other individual.
“We will not reverse a conviction because a single conspiracy is charged in the indictment yet multiple conspiracies were proved at trial unless the variance ... (1) [is] material and (2) substantially preju-
They cannot make this showing. Had the jury found either of Tibbs or Brown (or William, who joins the arguments of the others) responsible for a drug quantity greater than the smallest possible amount, there might be cause to wonder whether the jury had transferred to that individual proof of another of the conspiracies. But the jury found each of Tibbs, Brown, and William guilty of conspiring to possess with intent to distribute, or to distribute, marijuana weighing less than one hundred kilograms, which was the smallest possible quantity that the jury could have attributed to each defendant. The jury found Kingy guilty of conspiring to possess with intent to distribute, or to distribute, marijuana weighing one thousand kilograms or more. Since, as discussed above, there was sufficient evidence for the jury to find that, at the very least, each of Tibbs, Brown, and William independently participated in a distinct conspiracy with Kingy to distribute, or to possess with intent to distribute, marijuana, they cannot show they were prejudiced by any material variance between the indictment and the proof at trial.
D. Speedy Trial Act
Tibbs argues that the district court erred in denying his motion to dismiss the felon-in-possession charge in case number 12cr329 (KOB) based on the Speedy Trial Act (“STA“),
According to Tibbs‘s calculations, seventy-five unexcluded days elapsed on the felon-in-possession charge, five more than the seventy days permitted by
As it turns out, however, the date on which this indictment was filed does not matter for purposes of the STA calculation. Section (h)(5) of the STA provides that “[i]f the ... indictment is dismissed upon motion of the attorney for the Government and thereafter a charge is filed against the defendant for the same offense, ... any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the
In support of his position that the clock restarts upon reindictment, not rearraignment, Tibbs directs us to two cases. In United States v. Young, we said:
[The STA] provides that the time between the dismissal of an indictment and any subsequent charge for the same offense ... is excluded from the speedy-trial calculation. Thus, if the government indicts a defendant for a particular crime, dismisses that charge, and indicts the defendant once again for the same offense, the speedy-trial calculation begins with the initial indictment or arraignment but excludes the time between the dismissal and subsequent indictment.
528 F.3d 1294, 1295-96 (11th Cir.2008) (emphasis in original). And in United States v. Broadwater, we said that “[i]f the government moves to dismiss a count following a mistrial, it does not get a ‘fresh clock’ on reindictment; rather, the time is tolled from the dismissal of the original count until the reindictment.” 151 F.3d 1359, 1360 (11th Cir.1998).
Neither case held, however, that, notwithstanding the statutory language of the STA, the date of rearraignment is irrelevant. Rather, because the difference between reindictment and rearraignment was immaterial in these cases, they simply used “reindictment” as a shorthand. Young offered the above-quoted, simplified description of the STA‘s rules surrounding dismissal and reindictment only as dicta in support of its holding that the filing of a superseding indictment does not reset the speedy trial clock. 528 F.3d at 1295-96. Similarly, Broadwater offered the above-quoted loose dictum on its way to holding that an oral motion made on the record can constitute a “motion” for purposes of the STA. 151 F.3d at 1360-61.
Indeed, our conclusion here is supported by cases where the difference between reindictment and rearraignment was material. In United States v. Feldman, for example, the Ninth Circuit explained that, “if a government motion prompts dismissal of the indictment, and the defendant is later reindicted for the same offense, the original seventy day period is tolled only for the period between dismissal and reindictment or rearraignment, whichever is later.” 788 F.2d 544, 548 (9th Cir.1986). In fact, the Feldman court noted the loose language prevalent in opinions like the ones Tibbs cites. Feldman referred to another Ninth Circuit opinion “where the court held that the speedy trial clock was tolled from the date of dismissal on the government‘s motion until reindictment, rather than rearraignment,” but, as Feldman pointed out, that opinion “was not explicit in choosing reindictment over rearraignment,” and, in that opinion, “the
In short, the district court did not err in denying Tibbs‘s motion to dismiss based on the STA.7
III. CONCLUSION
We have considered the remaining arguments presented in appellants’ briefs and find them to be without merit. For the reasons stated above, the judgments are AFFIRMED.