United States v. Albert Terrill Jones

149 F. App'x 954
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 20, 2005
Docket03-15131; D.C. Docket 02-00122-CR-T-24-EAJ
StatusUnpublished
Cited by14 cases

This text of 149 F. App'x 954 (United States v. Albert Terrill Jones) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Albert Terrill Jones, 149 F. App'x 954 (11th Cir. 2005).

Opinions

PER CURIAM:

In this appeal, five defendants, each convicted of conspiracy to possess with intent to distribute various illegal drugs, assert numerous challenges to their convictions and sentences. Because the testimony at trial amply supported their convictions, the defendants did not have a legitimate expectation of privacy in text messages sent to or from another that precluded that other person from testifying, and the district court did not err when it applied the Sentencing Guidelines, we affirm each conviction and sentence.

I. BACKGROUND

Albert Terrill Jones, Elgin Ray Lofton, Luther Ford, Ronald Ray Langdon, and Michael Wayne Cobb were indicted on charges of conspiracy to possess with intent to distribute five kilograms of cocaine, fifty grams of crack cocaine, and 100 kilograms of marijuana, in violation of section 841(a)(1) of Title 21 of the United States Code. The conspiracy involved participants in California, Nevada, Tennessee, and Florida who shipped drugs and money across the county by parcel services. The conspirators used text message pagers to communicate with each other.

After the conspiracy was discovered, government agents identified Marquette McCalebb as the leader or a major part of the conspiracy. Special Agent Kevin McLaughlin of the Drug Enforcement Agency learned from a former conspirator that the conspirators communicated through text message pagers. McLaughin contacted Skytel Communications, the service provider for the pagers. McLaughlin also contacted Federal Express, the Unit[958]*958ed States Postal Service, Airborne Express, and DHL regarding shipments of drugs by mail.

McCalebb was arrested in California, and his home was searched. Agents discovered a large conspiracy ring that involved numerous participants: Jones, Langdon, Lofton, Ford, Cobb, and others. Each defendant had a different role in the conspiracy. Ford mailed packages containing drugs to Octavius Henderson and Jones in Florida. Ford received $50 to $100 for each package shipped. [Rd. Br. 4]. Langdon supplied McCalebb with five to ten kilograms of cocaine per week. [Rd. Br. 4]. Lofton, in Las Vegas, received drug proceeds on behalf of McCalebb. [Rd. Br. 7]. Cobb and Jones, in Florida, received packages containing drugs. [Rd. Br. 8-9].

Skytel informed McLaughlin that it maintained records of the actual text messages sent by pager, and Skytel would disclose the records if it received an administrative subpoena. [Rd. Br. 18], McLaughlin, therefore, served Skytel with a subpoena for records of text messages sent on the defendants’ pagers. [Rd. Br. 18]. McLaughlin did not obtain a warrant. McCalebb, Jones, Cobb, and Langdon moved to suppress the text message records, [Rd. Br. 17], and the district court determined that the defendants established a subjective expectation of privacy in the text messages and suppressed the records. [Rd. Br. 19-20].

McCalebb pleaded guilty to conspiring to possess with intent to distribute five kilograms or more of cocaine in accordance with a written plea agreement, and agreed to cooperate with the government. [Rd. Br. 21]. At the request of the government, McCalebb’s attorney obtained records pertaining to McCalebb’s pager from Skytel, which were forwarded to the government. Over the other defendants’ objections, the district court ruled that McCalebb would be permitted to testify regarding text messages he had sent to and received from his co-defendants. [Rd. Br. 21]. McCalebb was the star witness of the government.

A jury found Jones, Ford, Cobb, Lang-don, and Lofton guilty of the charged conspiracy. The district court sentenced Jones to 300 months, Ford to the mandatory minimum sentence of 120 months, Cobb to 151 months, Langdon to 360 months, and Lofton to 188 months. Each defendant appealed.

II. STANDARD OF REVIEW

We review for abuse of discretion the evidentiary rulings of the district court. Chrysler Intern. Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir.2002). We review de novo the denial of a motion for judgment of acquittal. United States v. Peters, 403 F.3d 1263, 1268 (11th Cir.2005). We review for abuse of discretion the denial of a motion for new trial. United States v. Day, 405 F.3d 1293, 1297 (11th Cir. 2005).

Whether the evidence presented at trial is sufficient to support the criminal conviction is a question of law subject to de novo review. United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir.2001). “The evidence is viewed in the light most favorable to the government and all reasonable inferences and credibility choices are made in the government’s favor.” Id.

We review de novo the application of the Sentencing Guidelines by the district court, and review for clear error its findings of fact. United States v. Crawford, 407 F.3d 1174, 1177-78 (11th Cir.2005). We review de novo a preserved error regarding the constitutionality of a sentence, United States v. Paz, 405 F.3d 946, 948 (11th Cir.2005), but review for plain error [959]*959an error raised for the first time on appeal. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005).

III. DISCUSSION

The five defendants each raise a number of issues on appeal. One issue is common to Jones, Langdon, and Cobb: the admission of testimony by McCalebb regarding text messages. We will first consider that common issue, and we will then address the unique arguments of each defendant in turn.

A. The District Court Did Not Abuse Its Discretion When It Admitted Testimony By McCalebb Regarding Text Messages He Received.

Jones, Langdon, and Cobb argue that the district court abused its discretion when it admitted testimony regarding the text messages from McCalebb’s pager. The district court initially suppressed the text message records, which the government had obtained by administrative subpoena from Skytel. The district court nevertheless allowed testimony regarding the text messages when McCalebb pleaded guilty and agreed to testify at trial. The district court concluded that McCalebb could waive any privacy right he had with regard to the messages.

“A person has an expectation of privacy protected by the Fourth Amendment if he has a subjective expectation of privacy, and if society is prepared to recognize that expectation as objectively reasonable.” United States v. Miravalles, 280 F.3d 1328, 1331 (11th Cir.2002) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516,19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). An individual’s right to privacy is limited, however.

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149 F. App'x 954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-albert-terrill-jones-ca11-2005.