United States v. Bovie

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 29 1997 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 96-1326 v. (D.C. No. 95-CR-87) (D. Colo.) KIRK BOVIE,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

This case arises out of a federal investigation into a multi-kilogram cocaine

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. distribution organization. In early 1994, the Federal Bureau of Investigation

(FBI) identified several individuals as persons selling large quantities of cocaine

in the Denver area.

In February 1995, the district court authorized a wiretap on three phone

numbers believed to be used by one of the primary targets of this drug

organization. The wiretap revealed a number of telephone conversations

involving Mr. Kirk Bovie and implicating him in the conspiracy.

On March 7, 1995, the grand jury returned a forty-four count indictment

against multiple persons. Mr. Bovie was named in Counts One and Two. Count

One charged Mr. Bovie with conspiracy to possess with the intent to distribute a

mixture or substance containing a detectable amount of cocaine from January 1,

1992 through March 3, 1995, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(ii) and 846 (1994), and 18 U.S.C. § 2 (1994). Count Two charged him

with possession with intent to distribute and distribution of approximately two

kilograms of a mixture or substance containing a detectable amount of cocaine

from February 24, 1995 through March 1, 1995, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(ii) and 18 U.S.C. § 2.

-2- On April 7, 1995, the grand jury returned the First Superseding Indictment,

which merely added two alleged coconspirators to Count One. On May 5, 1995, a

Second Superseding Indictment added another alleged coconspirator to Count

One. The remaining forty-three counts were unchanged from the original

indictment.

On October 16, 1995, the district court denied Mr. Bovie's Motion to

Suppress Intercepted Wire Communications. 1 United States v. Sorapuru, 902 F.

Supp. 1322, 1330 (D. Colo. 1995) (order denying motion to suppress). The

district court determined the wiretap application and the accompanying affidavit

contained the information required by 18 U.S.C. § 2518(1). Id. at 1326, 1330.

Therefore, the district court concluded the wiretap order complied with the

requirements of 18 U.S.C. § 2518(3) and was facially sufficient. Id.

On January 25, 1996, the grand jury returned a Third Superseding

Indictment. 2 This indictment contained only twelve counts and named Mr. Bovie

1 On September 21, 1995, Mr. Bovie joined his co-defendants' motions to suppress.

2 This indictment was returned two business days before trial. However, trial did not commence until April 1, 1996.

-3- in all twelve. In Count One, the conspiracy dates were changed to February 1,

1994 through March 3, 1995, and only two alleged co-conspirators were named

along with Mr. Bovie. Counts Two through Ten charged Mr. Bovie with

possession with intent to distribute and distribution of a mixture and substance

containing a detectable amount of cocaine on various dates between March 1994

and March 1995, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii) and

(b)(1)(C), and 18 U.S.C. § 2. Counts Eleven and Twelve charged Mr. Bovie with

knowingly and intentionally conducting and attempting to conduct a financial

transaction by use of Western Union money transfers knowing and intending the

financial transaction would promote the carrying on of specified unlawful activity

on June 19, 1994 through June 21, 1994, and June 26, 1994, respectively, in

violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2. Mr. Bovie moved to dismiss the

Third Superseding Indictment on the grounds of procedural unfairness, extreme

prejudice, vindictiveness, and violation of his right to due process. The district

court denied his motion after a hearing on February 1, 1996.

In April 1996, Mr. Bovie was tried on the charges in the Third Superseding

Indictment. On April 12, 1996, the jury found him guilty on Counts One, Three,

Four, Five, Six, Eight, Ten, Eleven, and Twelve, and not guilty on Counts Two,

Seven and Nine. On July 11, 1996, the district court sentenced Mr. Bovie to 156

-4- months imprisonment on each count of conviction to be served concurrently.

On appeal, Mr. Bovie challenges the district court's rulings regarding his

motion to suppress the wiretap evidence, his motion to dismiss the Third

Superseding Indictment, and the district court's jury instructions. Mr. Bovie

contends: the district court erroneously failed to suppress the evidence obtained

from the wiretap because the government failed to meet the mandatory

requirement of necessity under 18 U.S.C. § 2518(1)(c) (1994); the Third

Superseding Indictment was the result of prosecutorial vindictiveness in violation

of his constitutional right to due process; and the jury instructions violated his

constitutional right to the presumption of innocence and the requirement the

government establish guilt beyond a reasonable doubt.

I. Motion to Suppress Wiretap Evidence

Mr. Bovie contends the FBI's failure to establish the wiretap's "necessity"

as mandated by 18 U.S.C. § 2518(1)(c) requires the suppression of all the

evidence obtained from the wiretap. Mr. Bovie argues there was no necessity to

resort to a wiretap because the FBI had the ability to infiltrate the alleged

conspiracy by means of a confidential informant, and because the FBI had met

with "nothing but success" with its use of traditional investigative methods.

-5- "On appeal from a motion to suppress evidence obtained pursuant to a

wiretap, we accept the district court's factual findings unless clearly erroneous,

review questions of law de novo, and view the evidence in the light most

favorable to the prevailing party." United States v. Castillo-Garcia, ___ F.3d

___, ___, 1997 WL 358649, *5 (10th Cir. 1997). "[W]hether the government

demonstrated sufficient 'necessity' under 18 U.S.C. § 2518(1)(c) (1994) to support

the issuance of a wiretapping order is a question of law which we review de

novo." Id. (footnote omitted). However, "a wiretap authorization order is

presumed proper, and a defendant carries the burden of overcoming this

presumption." United States v. Quintana, 70 F.3d 1167, 1169 (10th Cir. 1995).

Among other provisions, the government must make a full and complete

showing that a wiretap is necessary. 18 U.S.C. § 2518(1)(c). Under the

"necessity requirement," an application for a wiretap authorization must contain

"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." Quintana, 70 F.3d at 1169 (internal

quotation marks omitted). In addition, the judge authorizing the wiretap must

find that "normal investigative procedures have been tried and have failed or

reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18

-6- U.S.C. § 2518(3)(c).

In Castillo-Garcia, we held there are four categories of normal

investigative procedures the government must address fully in its application:

"(1) standard visual and aural surveillance; (2) questioning and interrogation of

witnesses or participants (including the use of grand juries and the grant of

immunity if necessary); (3) use of search warrants; and (4) infiltration of

conspiratorial groups by undercover agents or informants." Castillo-Garcia, 1997

___ F.3d at ___, WL 358649, at *7. In addition, the government must address the

use of pen registers or trap and trace devices. Id. In its application, the

government must explain fully and with particularity what investigative

techniques have been tried against the target of the wiretap and why any untried

techniques would be either unsuccessful or too dangerous. Id. "However, the

government need not exhaust or explain its failure to exhaust every conceivable

normal type investigative procedure before resorting to wiretapping." Id. at 8.

Nor is the government's failure to explicitly explain its failure to utilize one or

more specified categories of normal investigative techniques fatal to the wiretap

application "if it is clear, under the government's recitation of the facts of the

case, that requiring the government to attempt the unexhausted and unexplained

normal investigative techniques would be unreasonable." Id.

-7- With these guidelines in mind and after reviewing the government's

application for the wiretap and FBI Special Agent Todd C. Wilcox's affidavit in

support thereof, we hold the government's application and the district court's

authorization satisfy the requirements of 18 U.S.C. § 2518(1)(c) and (3)(c),

respectively. Special Agent Wilcox's affidavit explains in detail why normal

investigative techniques, which had been attempted, had failed to reveal the full

scope of this drug organization or failed to develop sufficient evidence against the

key participants such tat a wiretap was necessary.

First, as the government explained, physical surveillance of the primary

targets failed to reveal the scope of the drug organization. In fact, the primary

targets of the investigation closed their front business, Hardbodies Paint and Body

Shop, because they feared the police were watching them; one of the primary

targets changed two of his home phone numbers and disconnected his pager

shortly after closing their front business; and the government could not make

direct contact with the primary targets of the investigation because the primary

targets insulated themselves from the actual distribution and acquisition of the

cocaine.

Second, the wiretap application revealed the government’s questioning and

-8- interviewing of participants-turned-informants was of limited use. The

participant-turned-informant witnesses available to the government lacked

significant information regarding the scope of the conspiracy. Many of these

witnesses were already in custody or were arrested on drug charges themselves.

In addition, the application discussed the possibility of expanding the limited

grand jury investigation already underway. An Assistant United States Attorney

concluded subpoenaing of persons believed to be involved in the conspiracy

would not be completely successful because the subjects of the investigation

would most likely invoke the Fifth Amendment, it would be unwise to grant

immunity to these subjects because it may preclude prosecution of the most

culpable persons, and it would alert other conspirators of the investigation, which

would jeopardize the on-going investigation.

Third, the government explained search warrants were of limited value in

this case since the primary targets of the investigation "have insulated themselves

in their residences in such a way that rarely would a person get into a position to

develop information upon which probable cause for a search warrant could be

developed." Additionally, it was unlikely a successful search and possible drug

seizure would be useful against persons not present at the time of the search or

that information would be obtained that would reveal the scope of the drug

-9- dealing activities.

Fourth, the confidential sources used in this operation were of limited use

since none were able to make a drug purchase from one of the primary targets or

to introduce undercover officers for the purpose of making a drug purchase. In

addition, the confidential sources reasonably feared reprisal for their direct

testimony against any of the primary targets. This fear stemmed from the murder

of a confidential informant in another investigation who was supposed to testify

against one of the primary targets of this investigation. Even if the confidential

sources would testify, the government points out their testimony would be of

limited value based on their limited roles in the organization.

Fifth, the government disclosed its extensive use of pen registers, clone

pagers, trap and trace, and toll information. However, this information was of

limited use since it could not reveal the identities of the parties or the subject

matter of the calls. In this case, the true identities of the participants was

particularly difficult to ascertain because the suspects frequently used aliases or

other people as fronts when obtaining pagers and phones.

We believe the government's explanations in its application comprise "a

-10- 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." See 18 U.S.C. § 2518(c)(1).

Additionally, it is clear from the application that requiring the government to

further attempt normal investigative techniques would not be reasonable under

these circumstances. Thus, Mr. Bovie fails to overcome the presumption the

order is proper. The district court did not err in finding the government had

satisfied the "necessity requirement" with regard to the wiretap at issue. See

Sorapuru, 902 F. Supp. at 1328-29. 3

II. Third Superseding Indictment

Mr. Bovie contends the procedural nature of this case, wherein the

government obtained the Third Superseding Indictment over ten months after the

original indictment and only two business days before his scheduled trial,

demonstrates a realistic likelihood of vindictive prosecution in violation of his

constitutional right to due process. 4 Mr. Bovie argues the Third Superseding

3 For the first time on appeal, the government asserts the "good faith" exception to the exclusionary rule applies. However, as a general rule, this court will not consider an issue on appeal that was not raised below. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).

4 At the end of his argument, Mr. Bovie adds the contention the procedural nature of this case establishes prosecutorial "vindictiveness in fact." To the

-11- Indictment is the product of prosecutorial vindictiveness because he rejected the

government's offer and exercised his constitutional right to trial. In addition, Mr.

Bovie asserts he was unfairly prejudiced by the increase in the number of charges

from the Second Superseding Indictment to the Third Superseding Indictment on

the eve of trial.

"Vindictive prosecution claims often turn on the facts, and we review a

district court's factual findings under the clearly erroneous standard; our review

of the legal principles which guide the district court is de novo." United States v.

Raymer, 941 F.2d 1031, 1039 (10th Cir. 1991) (footnote omitted).

In order to maintain a claim for prosecutorial vindictiveness, a defendant

has the burden of proof and must establish either (1) actual vindictiveness or (2) a

realistic likelihood of vindictiveness that will give rise to a presumption of

vindictiveness. Raymer, 941 F.2d at 1040; United States v. Wall, 37 F.3d 1443,

extent this is an allegation of "actual vindictiveness," see discussion supra, we decline to address it as Mr. Bovie failed to raise this in the district court and failed to support the statement with any argument or analysis. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (perfunctory complaints that fail to frame and develop an issue are insufficient to invoke appellate review); Walker, 959 F.2d at 896 (as a general rule, we will not consider on appeal an issue not raised in the district court).

-12- 1447 (10th Cir. 1994). "If the defendant successfully bears that burden, the

prosecution must 'justify its decision with legitimate, articulate, objective reasons'

for its actions." Wall, 37 F.3d at 1447 (quoting Raymer, 941 F.2d at 1040).

However, if the defendant does not meet that burden, the district court need not

reach the issue of the government's justification. Raymer, 941 F.2d at 1040.

"While a prosecutor may penalize a defendant for violating the law, a

prosecutor may not punish a defendant for 'exercising a protected statutory or

constitutional right.'" United States v. Contreras, 108 F.3d 1255, 1262 (10th Cir.

1997) (quoting United States v. Goodwin, 457 U.S. 368, 372 (1982)), petition for

cert. filed, __ U.S.L.W. ____ (U.S. Jun. 7, 1997) (No. 96-9286). However, a

prosecutor's offer to a defendant to plead guilty or face more serious charges does

not present a "realistic likelihood of vindictiveness" provided, of course, the

prosecutor has probable cause on the more serious charges and the defendant is

free to accept or reject the offer. Raymer, 941 F.2d at 1040 (citing Bordenkircher

v. Hayes, 434 U.S. 357, 363-64 (1978)). The critical question is whether Mr.

Bovie has shown that all of the circumstances, when taken together, support a

realistic likelihood of vindictiveness and therefore give rise to the presumption.

United States v. Doran, 882 F.2d 1511, 1521 (10th Cir. 1989).

-13- After careful review of the district court's decision and the circumstances

surrounding the Third Superseding Indictment, we hold Mr. Bovie fails to show a

realistic likelihood of vindictiveness. Mr. Bovie's arguments for prosecutorial

vindictiveness rely solely on the procedural nature of the case and the differences

between the Second and Third Superseding Indictments. In this case, the district

court found Mr. Bovie knew his failure to accept a plea agreement would result in

the prosecution obtaining a third superseding indictment to narrowly tailor the

charges against him as the sole remaining defendant. In a colloquy with Mr.

Bovie's counsel, the court stated, "Your client made a choice. Could have pled

guilty to the second superseding indictment. He didn't elect to do so. They

warned him if he did -- if he didn't -- they were going to reindict." Mr. Bovie's

counsel responded and admitted, "There was a warning that there would be a third

superseding indictment, absolutely." In closing, the district court recognized that

"[w]hile confronting a defendant with a risk of more severe punishment clearly

may have a discouraging effect on the defendant's choice of the trial rights, the

imposition of these choices is inevitable and permissible." We agree with the

district court. Mr. Bovie elected to proceed to trial rather than negotiate a

disposition of this case; therefore, he must endure the consequences of his

decision.

-14- Additionally, Mr. Bovie's unfair prejudice argument is unpersuasive. "In

the absence of procedural unfairness to the defendant, the government may

increase charges or make them more precise based upon new information or

further evaluation." Raymer, 941 F.3d 1042. Since Mr. Bovie was the sole

remaining defendant in this case, the government obtained the Third Superseding

Indictment, which made the charges more precise and more narrowly tailored to

Mr. Bovie's conduct. In addition, the district court continued Mr. Bovie's trial

date two and one-half months. 5 Therefore, we hold Mr. Bovie was not unfairly

prejudiced by the government's obtaining the Third Superseding Indictment and,

in any event, the continuance cured any prejudice he may have incurred.

III. Jury Instructions

Mr. Bovie contends the jury instructions violated his right to the

presumption of innocence and his right to require the government to establish

guilt beyond a reasonable doubt. Mr. Bovie argues Jury Instruction No. 1

improperly reduced the government's burden of proof by instructing the jury they

could make essential factual determinations based merely on probabilities rather

than beyond a reasonable doubt and misstated the presumption of innocence by

5 Due to the court's schedule, the trial date was moved to April 1, 1996 on February 29, 1996 without objection by Mr. Bovie.

-15- instructing the jury to presume the defendant "not guilty" rather than "innocent."

Jury Instruction No. 1 is a lengthy general instruction outlining the duties

and responsibilities of the jurors. In pertinent part, Jury Instruction No. 1

provides:

Any finding of fact you make must be based on probabilities, not possibilities. It may not be based on surmise, speculation, or conjecture. You must not be influenced by sympathy or by prejudice for or against any party in this case. Keep constantly in mind that it would be a violation of your sworn duty to base a verdict upon anything other than the evidence in the case and the instructions of the Court.

....

The Defendant, Kirk Bovie, has pleaded "not guilty" to this indictment and, therefore, denied that he is guilty of the charges.

You must presume a defendant in a criminal case to be not guilty of the crimes charged. Thus a defendant, although accused of a crime in the indictment, begins the trial with a "clean slate" -- with no evidence against him or her.

It is sufficient if the government has proven one or more of the alternative definitions of the offense beyond a reasonable doubt. The government does not have to prove more than one alternative theory of the offense beyond a reasonable doubt. Proof beyond a reasonable doubt on one theory is enough. But in order for you to return a guilty verdict, all twelve of you must agree that the same alternative theory has been proven beyond a reasonable doubt.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant,

-16- for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. A defendant is not even obligated to produce any evidence by cross- examining the witnesses for the government. The presumption of innocence alone is sufficient to acquit a defendant.

It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense -- the kind of doubt that would make a reasonable person hesitate to act in the most important of his or her own affairs. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it.

Unless the government proves, beyond a reasonable doubt, that the Defendant has committed each and every element of the offense charged, you must find the Defendant not guilty of the offense. If a juror views the evidence in the case as reasonably permitting either of two conclusions -- one of not guilty, the other of guilty -- the juror must, of course, adopt the conclusion of not guilty.

We review challenges to a specific jury instruction objected to at trial de

novo. United States v. Smith, 13 F.3d 1421, 1424 (10th Cir.), cert. denied, 513

U.S. 878 (1994); United States v. Mullins, 4 F.3d 898, 900 (10th Cir. 1993). We

must determine whether the jury, considering the instructions as a whole, was

misled and will disturb the judgment only where we have substantial doubt as to

whether the jury was fairly guided. Smith, 13 F.3d at 1424; Mullins, 4 F.3d at

900. Specifically, we must determine whether the jury instructions, taken as a

whole, adequately convey the concept of reasonable doubt; we must examine

whether a reasonable likelihood exists the jury understood the instructions to

-17- allow conviction based on proof insufficient to meet the beyond a reasonable

doubt standard. United States v. Miller, 84 F.3d 1244, 1252 (10th Cir.), cert.

denied, 117 S. Ct. 443 (1996).

Considering Jury Instruction No. 1 in its entirety, we hold the jury was not

improperly instructed on the government's burden of proof of beyond a reasonable

doubt, nor misled as to the presumption of innocence. In Miller, we noted the

Supreme Court has "'repeatedly approved' the definition of a reasonable doubt as

'a doubt that would cause a reasonable person to hesitate to act.'" Miller, 84 F.3d

at 1252 (quoting Victor v. Nebraska, 511 U.S. 1 (1994)). This is the exact

language used in Jury Instruction No. 1 to explain the burden of proof to the jury.

In addition, Jury Instruction No. 1 reminds the jury it must find Mr. Bovie guilty

of each element of the offense charged beyond a reasonable doubt, or it must find

him not guilty. The language complained of by Mr. Bovie describes the degree of

certainty with which the jury must determine the underlying factual issues, not the

degree of certainty needed to find him guilty. The inclusion of the "probabilities,

not possibilities" language in no way lessened the beyond a reasonable doubt

standard, especially in view of the fact the instruction specifically caution the jury

not "to single out one instruction alone," but to "consider the instructions as a

whole."

-18- Mr. Bovie's argument regarding the presumption of innocence is equally

without merit. Jury Instruction No. 1 explained to the jury, "You must presume a

defendant in a criminal case to be not guilty of the crimes charged. Thus a

defendant, although accused of a crime in the indictment , begins the trial with a

"clean slate" -- with no evidence against him or her." The court also instructed

the jury "[t]he presumption of innocence alone is sufficient to acquit a

defendant." In light of the instruction as a whole, we hold the jury was not misled

by these instructions on the presumption of innocence. As a practical matter, in

the context of this jury instruction "not guilty" and "innocence" are equivalent.

AFFIRMED.

Entered for the Court

WADE BRORBY United States Circuit Judge

-19-