United States v. Macklin

902 F.2d 1320
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 7, 1990
DocketNos. 88-2712—88-2714, 88-2737, 88-2767, 88-2768, 88-2870, 88-2871
StatusPublished
Cited by63 cases

This text of 902 F.2d 1320 (United States v. Macklin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Macklin, 902 F.2d 1320 (8th Cir. 1990).

Opinion

BEAM, Circuit Judge.

Eight defendants appeal from their convictions for conspiracy to possess and distribute cocaine, and for other drug related offenses. On appeal, several of the defendants unite to challenge the authorization of electronic surveillance, the fruits of which were used extensively by the government at trial. The other defendants appeal on a variety of grounds. We affirm.

I. BACKGROUND

On September 30, 1987, a federal grand jury indicted fifteen persons on drug related charges stemming from their alleged involvement in a conspiracy to distribute cocaine in the St. Louis area.1 Count I of the thirty count indictment charged all named defendants with conspiracy to distribute cocaine from March of 1986 to March of 1987 in violation of 21 U.S.C. § 841(a)(1) (1988). Counts II through XXII of the indictment charged individual defendants with specific instances of possession with intent to distribute in violation of section 841(a)(1). In addition, count XXIII charged John Alvin Payne, the principal figure in the conspiracy, with a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1988). Payne was also charged, together with other defendants, with conspiracy to impede the Internal Revenue Service, a violation of 18 U.S.C. § 371 (1988) (count XXIV); conspiracy to launder drug proceeds in violation of 18 U.S.C. §§ 371, [1323]*13231956(a)(1)(A), 1956(a)(2) (1988) (counts XXV through XXVII); and structuring financial transactions in violation of 31 U.S.C. § 5324(3) (1988) (counts XXVIII through XXX).

While John Alvin Payne’s involvement in cocaine trafficking in the St. Louis area allegedly began before 1977, the indictment of September 30 covered, as indicated, only the period from March of 1986 to March of 1987. During that time, Payne was living in Los Angeles where he operated a large-scale drug operation out of the Cache Inn, a hotel he owned with his brother, Thomas E. Payne. Payne used Tarrel Williams as a courier to transport cocaine via commercial carrier from Los Angeles to St. Louis. Once in St. Louis, the cocaine was distributed to defendants Burnes, Woods, Macklin, Robinson, Arnold and Betty Mitchell, and others, for further distribution. Clara Davis, who met Payne socially in November of 1985, first became involved in the conspiracy in March of 1986, when, at Payne’s direction, she met Tarrel Williams at the Northwest Inn in St. Louis following his arrival from Los Angeles with cocaine. As a confidante of Payne, Davis later became responsible for dispersing cocaine to Payne’s St. Louis distributors, for collecting the proceeds from its sale, and for transferring money to Payne in Los Ange-les. Partly because of her position in the conspiracy, Davis became the government’s key witness at trial.

The government’s 1985 and 1986 investigation of the conspiracy led to the applications for electronic surveillance on telephones used by Davis and Lee Autry Wright, who was one of Payne’s biggest distributors in the St. Louis area, and who was also named in the indictment. The government sought wiretaps for three circuits. Two phone numbers were listed to Delois Williams, both for the residence at 2129 Roundtree in St. Louis, where Wright was known to reside with Williams. The government also sought a wiretap on the telephone number listed to Clara Davis, for the residence at 7449 Liberty Avenue in University City, Missouri. Surveillance on the telephones at Wright’s residence began on December 9, 1986, and ended on February 8, 1987. Surveillance on the Davis telephone began on January 13, 1987, and ended on March 25, 1987.2 On March 25, 1987, Davis and Tarrel Williams were arrested at the Northwest Inn in St. Louis, where Williams went to meet Davis after he arrived from Los Angeles with ten kilograms of cocaine.

Following her arrest, Davis entered the federal witness protection program and was the government’s chief witness at trial. Davis testified to the events of the conspiracy, referred to several diaries she had kept, and explained the intercepted telephone conversations, some of which were played to the jury. Because many of these conversations were brief and encoded, the government relied heavily on Davis. The government’s direct examination of Davis lasted for almost three days, and cross-examination lasted another four. None of the defendants testified.3

II. DISCUSSION

A. Electronic Surveillance

Appellants Payne and Burnes, in their joint brief,4 attack the authorization of elec[1324]*1324tronic surveillance. Payne and Burnes argue that: the affidavits in support of the applications for. electronic surveillance do not satisfy the probable cause requirements of 18 U.S.C. § 2518(3)(a), (b) (1988); that the information contained in the affidavits in support of the government’s applications was stale; and that the statutory requirements of 18 U.S.C. § 2518(3)(c), requiring that the government first employ normal investigative techniques before resorting to a wiretap, were not met. Appellant Macklin joins these arguments, arguing in addition that the government failed to minimize its interception of phone conversations pursuant to 18 U.S.C. § 2518(5). We examine each argument in turn.5

1. Probable Cause

The procedures for the authorization of electronic surveillance are found in 18 U.S.C. § 2518. As to probable cause, the statute provides that a judge may authorize a wiretap upon a determination that “there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter,” Id. § 2518(3)(a), and that “there is probable cause for belief that particular communications concerning that offense will be obtained through such interception.” Id. § 2518(3)(b). Appellant Macklin argues that the affidavits in support of the government’s applications for wiretaps do not provide probable cause because they are broad, speculative and conclusory. In statutory terms, Macklin argues that there was no probable cause to conclude either that he was engaged in a conspiracy to distribute cocaine, or that communications relating to the conspiracy would be intercepted. The argument of Payne and Burnes is directed solely to section 2518(3)(b), that there was no probable cause that the wiretaps would record any conversations related to the conspiracy.

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Bluebook (online)
902 F.2d 1320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-macklin-ca8-1990.