United States v. Hines

717 F.2d 1481
CourtCourt of Appeals for the Fourth Circuit
DecidedSeptember 9, 1983
DocketNos. 82-5274(L), 82-5275 to 82-5278 and 82-5286
StatusPublished
Cited by87 cases

This text of 717 F.2d 1481 (United States v. Hines) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Hines, 717 F.2d 1481 (4th Cir. 1983).

Opinion

ERVIN, Circuit Judge:

Ronald Doyle Hines, Gary J. Peed, Teresa Eleazar, James “Bubba” Jackson, James Coddington and Jeffrey Bumgardner appeal from the United States District Court for the Eastern District of North Carolina wherein they were tried for conspiracy to [1484]*1484possess with intent to manufacture and distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and of using a communication facility to facilitate the cocaine conspiracy in violation of 21 U.S.C. § 843(b).

Viewing the evidence in the light most favorable to the government, the prosecution’s case at trial established the existence of a two-tier conspiracy. The first tier was headquartered in Apex, North Carolina, under the command of James “Jacques” Provost. Jacques had two investors or partners in the first tier, Gary Peed of Virginia and James Coddington of Orlando, Florida. The first tier had three employees who acted as drug couriers, Jacques’s son Darryl Provost, Peter Stisser, and Bubba Jackson. Darryl and Peter turned government witnesses and provided the crucial trial testimony against their co-conspirators.

The second tier was the smaller and local operation in Jacksonville, Florida, including Ronald Hines, Jeffrey Bumgardner and Teresa Eleazar. Contacts between the two tiers were made by Bubba Jackson, Eleazar’s brother.

The jury found appellants guilty of both counts, except that Eleazar was acquitted on the telephone facilitation count. Peed, Coddington, and Jackson were sentenced to four years imprisonment plus five years probation. Hines, Eleazar and Bumgardner received six months imprisonment with five years probation.

On appeal, the appellants claim nine reversible errors in their trial. Finding no merit to any of the challenges, we affirm.

I.

In September, 1980, a double murder occurred in Jacksonville Beach, Florida. In July, 1981, two Jacksonville Beach police investigators, Officers Dorn and Maxwell, learned that “Bones” Merrill might have acted as a lookout during the murders. Bones was questioned and agreed to act as an informant in the investigation of Jacques Provost, who was suspected of having ordered the murders to avenge a delinquent drug debt and is now deceased.

Beginning on July 27, 1981, Bones made seven or eight consensually recorded phone calls from pay telephones in Jacksonville Beach to Jacques’s home in St. Johns County, Florida, which was outside Dorn’s and Maxwell’s bailiwick. Since most of the information obtained concerned Jacques’s ongoing drug operations, on July 29, 1981, the information was turned over to Agent Alford of the Florida Department of Law Enforcement, an agency with statewide jurisdiction.

On August 29, Alford obtained an electronic surveillance warrant for Jacques’s St. Johns County home. Alford eventually learned that Jacques had moved the center of his drug operations to a house in Apex, North Carolina.

Alford passed the information on to Agent Johannesen of the Federal Drug Enforcement Agency (“DEA”) in Raleigh, North Carolina. Johannesen used the information to obtain a wiretap on Jacques’s telephone in Apex from September 29, 1981 to October 14,1981. Information developed from the wiretap led to the indictments of the appellants.

Appellants complain that the Apex wiretap evidence should have been suppressed because it was the fruit of the Florida consensual monitoring and electronic surveillance, which appellants contend were illegal. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The consensual monitoring allegedly was illegal because officers Maxwell and Dorn were operating outside their jurisdiction. Appellants challenge the electronic surveillance on the grounds that it was issued based on an affidavit that contained intentional, reckless, and material misrepresentations.

Appellants contend that Maxwell and Dorn, Jacksonville Beach police officers, acted outside their jurisdiction by consensually monitoring Bones’s nine pre-August 6, 1981 calls to Jacques’s St. Johns County home. Maxwell and Dorn were not deputized in St. Johns County until August 6, 1981. Appellants rely on Wilson v. Florida, 403 So.2d 982 (Fla.1980), in which Lake [1485]*1485City, Florida, police officers conducted an investigation into Wilson’s possession of drugs outside the municipal limits of Lake City. In conducting the investigation, the officers employed an electronic listening device that was hidden on an informant who purchased drugs from Wilson outside Lake City. The court held that fruits of the electronic surveillance could not form the basis for the issuance of a search warrant because the officers were without authority to conduct the investigation.

Wilson, however, is distinguishable from the present case. In Wilson, the investigation was into the possession of contraband outside Lake City. The Wilson court indicated, 403 So.2d at 984, that it would have reached a different result had the investigation been into Wilson’s illegal acts within Lake City: “a municipal police officer ... may conduct investigations outside the city limits ... where the subject matter of the investigation originated inside the city limits, State v. Chapman, 376 So.2d 262 (Fla. 3d DCA 1979); Parker v. State, 362 So.2d 1033 (Fla. 1st DCA 1978).” Here, the subject matter of the investigations, the 1980 double murder in Jacksonville Beach, did originate within the city limits.

Of the nine pre-August 6 telephone calls, the first seven or eight were made from Jacksonville Beach, so Maxwell and Dorn were within their jurisdiction. Furthermore, since Dorn and Maxwell brought agent Alford, who had statewide jurisdiction, into the investigation on July 29, the monitoring of Bones’s calls from Jacksonville were under the direction of Alford; i.e. the officers acted “under color of law,” 28 U.S.C. § 2511(2)(c), or “under the direction of a law enforcement officer,” Fla.Stat. 934.03(2)(c).1 Thus, the pre-August 6 calls comply with both the federal and state consensual monitoring statutes.2

Appellants contend that the application of agent Alford for the Florida wiretap contained material misrepresentations which were intentionally and recklessly made and which were necessary to the finding of probable cause and, thus, that the Florida wiretap evidence was illegally seized under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The alleged misrepresentations are that (1) Bones was a collector of drug debts for Jacques, (2) Bones revealed that Jacques imported drugs and was putting together an airplane scheme involving 15 kilograms of cocaine, (3) Jacques told Bones that he had some “heavy business”, wanted Bones to work for him, and was meeting with some business associates to plan a large transaction, (4) Bones and Jacques discussed the details of a trip down south, (5) Jacques told Bones that he was waiting for a phone call and would know more after he received it, and (6) Darryl Provost told Bones that [1486]

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