United States v. Lee

339 F. App'x 153
Court of Appeals for the Third Circuit·Decided July 27, 2009·No. Nos. 07-3985, 07-4642, 07-4687·Published·Cited by 5 cases

Opinion

OPINION OF THE COURT

CHAGARES, Circuit Judge.

Defendants David Lee, Teddy Young, and Theodore Young, Sr., appeal from their convictions and sentences for their respective roles in a conspiracy to distribute heroin from approximately November 17, 2000 to June 6, 2002. We will affirm.

[155]*155i.

Because we write solely for the parties, we recite only those facts essential to our determination.

Beginning on approximately November 17, 2000 through approximately June 6, 2002, Teddy Young was the leader of a heroin distribution organization.1 Young and his co-conspirators, including his father, Theodore Young, Sr., received bulk heroin from sources in New York City and other places, and cut, processed, packaged, and stamped the heroin into bundles for resale in Philadelphia. As the leader of the organization, Young directed the activities of the sellers and cuthouse workers. David Lee was a street reseller for the YHO. Lee sold bundled heroin obtained from the YHO to an undercover police officer on seven occasions from November 17, 2000 to March 29, 2001. Lee also assisted the YHO in creating brand names to stamp on the bundled heroin for redistribution in the streets. The YHO processed heroin at two principal locations in Philadelphia, one at 5302 Wayne Avenue (the Wayne Avenue cuthouse) and one at 7665 Washington Lane (the Washington Lane cuthouse).

Authorities began an investigation into Young and the YHO in 1999, after a cooperating witness brought information to the FBI. As part of the investigation, the FBI instructed Marlon Gocking, a confidential informant, to meet with Young, with Gock-ing representing himself as a Ghanian heroin distributor. During this meeting, which the FBI recorded, Young stated that he sold “dope,” and that he distributed almost “one brick” of heroin per week.2 After further investigation, FBI Special Agent Robert M. Parks sought a court order authorizing a wiretap of Young’s eel-lular phone. On September 5, 2001, the court authorized the initial wiretap for interception of electronic communications, pursuant to 18 U.S.C. § 2516(3). The order was extended several times, until June 8, 2002. On June 6, 2002, based on information obtained through the investigation, including the wiretaps, authorities sought and received ten warrants to search, among other locations, Young’s residence, Young Sr.’s residence, the Wayne Avenue cuthouse, and the Washington Lane cut-house.

On February 2, 2005, a federal grand jury returned a 35-count indictment charging Lee, Young, and Young, Sr. (collectively, “Appellants”), along with 16 others, with a variety of drug trafficking-related offenses. The indictment was unsealed on February 4, 2005, and the majority of those charged were arrested.

Each of the appellants was charged in Count 1, a two-object conspiracy, lasting from approximately November 17, 2000, to approximately June 6, 2002. Appellants were charged with conspiracy to distribute more than one kilogram of heroin and with conspiracy to distribute heroin within 1,000 feet of a school. Individually, each of the appellants was charged with additional counts. Young was also charged in Counts 10-25, 28, and 29 with use of a communication device to further drug trafficking, in violation of 21 U.S.C. § 843(b); in Count 30 with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and in Count 31 with possession of more than 100 grams of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1).

Young, Sr. was charged in Count 12 with use of a communication device to further [156]*156drug trafficking, in violation of 21 U.S.C. § 843(b); and in Count 32 with possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Lee was charged in Counts 2 through 8 with distribution of heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); and in Count 28 with use of a communication device to further drug trafficking, in violation of 21 U.S.C. § 843(b).

On April 10, 2006, prior to trial, Young filed a motion to suppress all physical and electronic evidence seized as a result of the wiretaps and search warrants, arguing that the affidavits failed to establish sufficient “necessity” to warrant the wiretaps. Young further moved to suppress any statements made during the search of his residence. Young, Sr. and Lee joined in Young’s motions. On August 16, 2006, 2006 WL 2338259, following a hearing, the District Court denied all of the motions to suppress.

Trial commenced on April 9, 2007. Before proceedings began, the District Court held a hearing outside the presence of the jury regarding Young’s motion to suppress evidence based on the warrantless seizure of his vehicle, and his motion to preclude the Government from playing the May 25, 2000 recording between Gocking, the confidential informant, and Young. The District Court denied both motions. On May 3, 2007, a jury convicted Appellants on all remaining counts,3 with exception of Counts 20, 22, and 30, of which Young was acquitted. On October 1, 2007, Lee was sentenced to 300 months of incarceration and 10 years of supervised release, in addition to a fine and special assessment. On December 6, 2007, Young was sentenced to life imprisonment and 10 years of supervised release, in addition to a fine and special assessment. Also on December 6, 2007, Young Sr. was sentenced to 144 months of imprisonment and 10 years of supervised release, in addition to a fine and special assessment.

The appellants were each remanded after trial, and now appeal from their judgments and sentences. The District Court had subject matter jurisdiction under 18 U.S.C. § 3231, and this Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We will affirm.

II.

Young and Young Sr. appeal a number of the District Court’s evidentiary rulings. Each is without merit.

A.

First, Young and Young Sr. argue that the District Court erred in denying Young’s motion to suppress evidence obtained as a result of the wiretap on the ground that the Government’s affidavit failed to establish necessity. We review the District Court’s determination of necessity in an application for a wiretap for abuse of discretion. United States v. Phillips, 959 F.2d 1187, 1189 (3d Cir.1992).

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