United States v. Michael Smith

395 F. App'x 223
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 31, 2010
Docket08-5913, 08-5929
StatusUnpublished
Cited by2 cases

This text of 395 F. App'x 223 (United States v. Michael Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Michael Smith, 395 F. App'x 223 (6th Cir. 2010).

Opinions

ALICE M. BATCHELDER, Chief Judge.

Joshua Smith (“Joshua”) and Michael Smith (“Michael”) were convicted of various federal offenses for their part in a multi-defendant drug conspiracy in Tennessee and now appeal their convictions and sentences. For the reasons that follow, we affirm the district court’s rulings and defendants’ convictions and sentences.

BACKGROUND

I. THE CONSPIRACY

The conspiracy began in early 2006 with an agreement between Brian Maldonado (“Maldonado”) and Brian Matheny (“Matheny”). Maldonado provided the conspiracy with drugs through his Atlanta-based supplier, Kirk Spence, also known as “Cato.” Once the drugs were obtained from Cato, they were divided equally between Joshua and Matheny who, in turn, distributed the drugs to a number of underlings. Joshua had at least five distributors who reported to him: four individuals known only by their first names — A.G., Shaky, Craig, and Jessie; and his girlfriend, Natasha Thompson (“Thompson”).

In January 2006, Joshua and Matheny made their first trips to Atlanta to obtain drugs from Cato. On each of three trips, they purchased both cocaine and marijuana. After those first three trips, and beginning in February 2006, Matheny began making the trips to Atlanta by himself, but the drugs were still split between Matheny and Joshua upon Matheny’s return. On at least one occasion, the drugs were temporarily stored at Joshua’s house because Matheny considered it a safe location. By April or May, the conspiracy was successful enough that Matheny began making multiple trips to Atlanta every week, sometimes as many as four trips. Each trip typically yielded one kilo of cocaine and approximately 40-50 pounds of marijuana, and those amounts were split evenly between Josh and Matheny.1

Michael entered the conspiracy in March, 2006, when he became one of Matheny’s distributors. Initially, he received 10-15 pounds of marijuana at a time and, at some point in March or April, 2006, he also began receiving small mounts of cocaine each week. His weekly allotment of marijuana increased to twenty pounds of marijuana during the same time period. The marijuana was “fronted” to Michael, allowing Michael to receive the drugs without paying, so long as Michael returned with the money once it was sold. Michael remained a distributor for Matheny until [226]*226January 25, 2007, when Matheny was arrested.

II. THE INVESTIGATION

The government had investigated the conspiracy almost from its inception. On January 21, 2006, Jeff Cessna (“Cessna”), an undercover law enforcement officer, purchased marijuana from Robert Robinson (“Robinson”), who received it from Joshua. On January 30, 2006, Cessna and Robinson met with Joshua, who Robinson said was his “man.” During the January 30 meeting, Joshua sold one ounce of cocaine to Robinson, who then sold it to Cessna. On February 16, 2004, Cessna requested cocaine from Thompson, who indicated that she would have to wait for Joshua to bring the cocaine before the sale could be completed. Once Joshua arrived, the sale occurred. On February 24, 2006, Cessna requested two ounces of cocaine from Thompson, and Joshua again delivered the cocaine in person. Cessna purchased cocaine from Joshua, using Thompson as an intermediary, a number of additional times, including one purchase of five ounces. In March or April 2006, Cessna and Joshua got into an argument, and Joshua told Cessna never to contact him again. Other efforts at investigation were attempted, but without much success.

III. THE WIRETAP

On November 7, 2006, Special Agent Mike Burnette (“Burnette”), of the Tennessee Bureau of Investigation, and Assistant District Attorney Joshua Parsons (“Parsons”), requested and obtained an order from state Judge Leon Burns, authorizing the use of wiretaps to intercept Joshua’s phone calls. As part of that order, a member of the investigative team was “required to appear and report, ex parte, to [Judge Burns] every ten (10) days ... on the progress towards the achievement of the authorized objectives and the need for continued interception.” The order was reauthorized on December 11, 2006. On December 6, 2006, as a result of information obtained from the wiretaps of Joshua’s phone, the government obtained an order from Judge Burns to intercept the phone calls of Maldonado and Matheny.2 On January 4, 2007, Judge Burns signed an order allowing the government to intercept the phone calls of Cato. These subsequent orders also included the requirement that a member of the government’s investigative team appear and report to Judge Burns.

It is undisputed that written reports were submitted, as required, every ten days.3 The reports were hand-delivered to Judge Burns’ office by either Burnette or Parsons. Each time Burnette delivered a report, he also met face-to-face with Judge Burns and discussed the progress of the wiretaps. Parsons, on the other hand, could not recall whether he spoke with Judge Burns each time he delivered a report. He testified, however, that he spoke with Judge Burns at least once every six or seven days, keeping Judge Burns apprised of the progress of the wiretaps. At no time did Judge Burns complain about the form in which the reports were presented, and he authorized additional wiretaps and reauthorized the initial wiretap after a number of reports had been presented.

IV.TRIAL

The wiretapped conversations proved very useful to the prosecution during trial. [227]*227Michael’s identity was revealed in his communications with Matheny and in communications between Matheny and Maldonado. Various drug deals were discussed on the wiretaps. Michael was recorded complaining about his apparent inability to receive product and declared that he had sold “one half million dollars” for the conspiracy during the previous year; the product at issue sold at a price of $625 per pound during the relevant time period. Maldonado complained repeatedly that Matheny owed him money, Matheny complained that Michael owed him money, and Joshua stated that he owed Maldonado and Matheny money, all related to drug transactions. Joshua volunteered to take action against another drug dealer who might have been attempting to sell drugs in their territory.

Evidence at trial indicated that some of these cell-phone calls were relayed through cell towers in the Eastern District of Tennessee, and Burnette testified that cell phones utilize the closest cell tower.

Utilizing the evidence contained in the intercepted communications, law enforcement obtained a search warrant for Joshua’s residence. When officers executed the search warrant, they found marijuana, drug ledgers, and digital scales with marijuana residue. During the initial entry into the residence to execute the search warrant, Joshua briefly pointed a gun at one of the officers.

Prior to trial, the defendants moved to suppress the wiretap communications arguing, among other things, that the police had failed to abide by the wiretap orders’ requirement that the 10-day reports be presented in person. The district court denied the motion to suppress and the case went to trial. At trial, the government called Matheny as a witness to interpret the meaning of the phone calls for the jury. Joshua was convicted of conspiracy to distribute more than 5 kilograms of cocaine and 100 kilograms of marijuana, in violation of 21 U.S.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. John Gray
692 F.3d 514 (Sixth Circuit, 2012)
United States v. Rodriguez
664 F.3d 1032 (Sixth Circuit, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
395 F. App'x 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-smith-ca6-2010.