United States v. Matthews

431 F.3d 1296, 2005 U.S. App. LEXIS 26557, 2005 WL 3291400
Court of Appeals for the Eleventh Circuit·Decided December 6, 2005·No. No. 03-15528·Published·Cited by 162 cases

Opinions

PER CURIAM:

The United States’s Petition for Rehearing is GRANTED. The opinion issued on June 8, 2005, in United States v. Matthews, 411 F.3d 1210, is VACATED, and we substitute the following as the opinion of the court:

Following a jury trial in the United States District Court for the Middle District of Florida, Terrance Matthews was convicted of one count of conspiracy to distribute five or more kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and two counts of obstruction of justice by intimidation of a witness in violation of 18 U.S.C. § 1512(b)(1). The district court sentenced Matthews to 292 months of imprisonment and ten years of supervised release on the conspiracy count and imposed concurrent sentences of ten years of imprisonment and three years of supervised release on each of the witness intimidation counts. On appeal, Matthews raises four issues:1 (1) whether wiretap evidence should have been excluded because the recordings were not sealed in compliance with 18 U.S.C. § 2518(8)(a); (2) whether evidence of a telephone conversation not involving Matthews should have been excluded because it was hearsay, irrelevant, and unfairly prejudicial; (3) whether there is sufficient evidence to sustain the witness intimidation convictions and a related sentencing enhancement; and (4) whether the district court erred by admitting evidence of Matthews’s 1991 arrest under Federal Rule of Evidence 404(b).

Part I recounts the course of the proceedings in the district court. In Parts IIV we address Matthews’s four claims and find that the district court committed no reversible error. Part VI briefly concludes.

I.

At trial, the Government presented evidence that Matthews was part of a significant, though somewhat informal and irregular, conspiracy to distribute cocaine in Jacksonville and Miami. DEA Agent Frank Orochena testified that the DEA began investigating the conspiracy in July 2000 when Nathaniel King, also known as “Peewee,” offered to cooperate with them. Peewee was involved in the conspiracy as a courier. His job was to take cash from Jacksonville to Miami and then return to Jacksonville with cocaine for distribution there. Peewee’s employer was Linwood [1299]*1299Smith, a major participant in the Jacksonville end of the conspiracy.

In August of 2000, Peewee and an undercover agent bought five kilograms of cocaine in Miami with cash provided by Linwood Smith. On the return trip to Jacksonville, the DEA seized the cocaine in a staged stop. Peewee was allowed to “escape” so that the investigation would not be compromised. The DEA was then able to obtain authorization for wiretaps on Linwood Smith’s cell phone and two cell phones owned by Farrell Alston, a major supplier in Miami. Smith’s phone was monitored for sixty days. During this time more than 6300 calls were intercepted, 319 of which were deemed “pertinent,” 1.e., related to the conspiracy. Matthews was not involved or mentioned in any of the pertinent conversations. Alston’s phones were monitored for thirty days, and more than 2400 calls were intercepted, 106 of which were deemed pertinent. One of the intercepted conversations was between Matthews and Alston; Alston testified that he and Matthews were discussing the sale of a kilogram of cocaine during the call. Matthews’s name was also mentioned briefly in a conversation between Alston and Jason Moore, another member of the conspiracy.

The DEA intercepted the Moore-Alston conversation at 5:21 P.M. on March 20, 2001. Near the end of the short call Moore told Alston that he would call “saous” because he had “the number programmed.” Alston testified that “sa-ous” was one of Matthews’s nicknames; thus, Moore was going to call Matthews because he had Matthews’s phone number programmed on his phone. Moore also told Alston that he would “be on your end ’bout Thursday, Friday” and would “need power pellets.” According to Alston, “power pellets” are ecstasy pills. Alston told Moore that he would “get that set up for [him] then.”

An hour-and-a-half later, the Government intercepted the Matthews-Alston call. During their conversation, Matthews asked Alston whether “J” (Jason Moore) had called him. Alston said that he had. Matthews then asked whether Alston had “put [Moore] on ... twenty-six street.” Alston testified that “twenty-six street” was a code for the price of a kilogram of cocaine; thus, Matthews was really asking whether Alston had quoted Moore a price of $26,000 for a kilogram of cocaine. Alston replied, “[H]ell no I wouldn’t give that to him for that.” Matthews said, “Good. Just give it to me then.” In other words, according to Alston, Matthews wanted Alston to give him the kilogram so that he could then sell it to Jason Moore.2 At [1300]*1300trial, Alston could not recall whether he actually sold Matthews this particular kilogram of cocaine.

In July and October 2001, the DEA arrested a number of members of the conspiracy. Among them were Farrell Alston, Anthony Wells, Shawn Richardson, James Brown, Antonio Austin, Jason Moore, and Rodney Cannon, all of whom eventually pled guilty and, pursuant to their plea agreements, cooperated with the Government and testified against Matthews.

Farrell Alston was the first of the conspirators to testify at trial. Alston testified to having sold more than 400 kilograms of cocaine during the course of the conspiracy. As part of Alston’s plea agreement, the Government filed a § 5K1.1 motion3 on his behalf, which led to a five-level sentence reduction for substantial assistance.4 Alston also received a three-level reduction for acceptance of responsibility. As part of the plea, the Government also declined to pursue any sentencing enhancements based on a firearm found on Alston at the time of his arrest. Alston was sentenced to 135 months in prison for his role in the conspiracy. Without the aforementioned reductions, his applicable guideline range was 324 to 405 months — 235 to 293 months even taking into account the reduction for acceptance of responsibility. The Government also filed a Rule 355 motion on his behalf that was pending at the time of Matthews’s trial; Alston was- hopeful that it would result in a further reduction of his sentence.

At trial, Alston testified to the following facts regarding the conspiracy: Alston and James Brown were partners in Miami, and Alston was introduced to Matthews through Brown. Alston was responsible for getting cocaine, and Brown had connections with buyers in Jacksonville, including Antonio Austin, Jason Moore, and Linwood Smith. At first, Alston and Brown used Peewee as a courier. Peewee would bring cash to Miami, and they would send twenty to forty kilograms of cocaine at a time back to Jacksonville. After Pewee “escaped” from the staged DEA stop, however, the Jacksonville customers began traveling to Miami to purchase the cocaine in person. Alston’s main supplier was George Morales, but he also bought cocaine from Matthews a few times when Morales didn’t have all that he needed.

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United States v. Matthews, 431 F.3d 1296, 2005 U.S. App. LEXIS 26557, 2005 WL 3291400 (11th Cir. 2005).

431 F.3d 1296 (United States v. Matthews) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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