United States v. Ricardo Wilson

314 F. App'x 239
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 3, 2009
Docket07-11226
StatusUnpublished
Cited by3 cases

This text of 314 F. App'x 239 (United States v. Ricardo Wilson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Ricardo Wilson, 314 F. App'x 239 (11th Cir. 2009).

Opinion

PER CURIAM:

Andrew Jonah, Prosper Coker-Ofori, George Richardson, and Ricardo Wilson (collectively, “Defendants”) were convicted of various drug, firearm, and money laundering offenses. Each defendant appealed his conviction on several grounds. Defendant Prosper Coker-Ofori also appeals his sentence. After a thorough review of the record and having had the benefit of oral argument, we AFFIRM.

I. BACKGROUND

On October 3, 2006, a grand jury in the Northern District of Georgia returned a 16-count superceding indictment against eight defendants, including the four Defendants involved in this appeal. Count One charged all eight defendants with conspiring to possess with the intent to distribute heroin, cocaine, and ecstasy, in violation of 21 U.S.C. § 846. The remaining counts charged individual defendants with possessing and distributing narcotics, possessing firearms during and in relation to the drug offenses, and money laundering in relation to the drug offenses.

Following a 12-day jury trial, the district court granted Jonah’s motion for judgment of acquittal on the money laundering charged in Counts Fifteen and Sixteen. All defendants were found guilty of the conspiracy charged in Count One. Additionally, the jury found Jonah guilty of distributing and possessing with the intent to distribute heroin, attempting to possess with the intent to distribute cocaine, conspiring to import heroin, wiring money in furtherance of drug trafficking, and possessing ecstasy with the intent to distribute. Jonah was acquitted of possessing ecstasy with the intent to distribute and possession of a firearm in furtherance of same. Richardson was acquitted of possessing ecstasy with the intent to distribute and possession of a firearm. In addition to Count One, Wilson was found guilty of attempting to possess with the intent to distribute at least five kilograms of cocaine and being an unlawful user of a controlled substance in possession of a firearm. Defendants filed timely notices of appeal. Defendants appeal their convictions on numerous grounds. Only Coker-Ofori appeals his sentence. Due to the lengthy nature of the facts surrounding this case, the facts pertinent to this appeal are discussed below as they relate to the various issues on appeal.

II. DISCUSSION

A. Wiretap orders

Jonah complains that the fruits of the wiretap orders granted in this case should have been suppressed because the affidavits in support of the wiretap orders did not demonstrate the necessity of the wiretaps. In the course of its investigation from September 2004, until the arrests in August 2005, the Government applied for and was granted thirteen wiretap orders. Claiming that the case agent’s affidavit in support of the wiretap warrant contained a material misstatement, Jonah moved for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). No evidentiary hearing was held. After reviewing the magistrate judge’s report and recommendation to deny the motions to suppress the wiretap evidence and Jonah’s objections to *243 same, the district court denied the motions to suppress the wiretap evidence.

Pursuant to 18 U.S.C. § 2518, court-ordered electronic surveillance is prohibited unless the government demonstrates the necessity of such techniques. See United States v. Carrazana, 921 F.2d 1557 (11th Cir.1991). A judge may authorize a wiretap based upon facts submitted by the applicant that ordinary “investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c). Citing information learned through other investigative techniques, Jonah argues that the Government failed to prove the necessity of the wiretaps. The Government is not required to show that all other investigative methods have been wholly unsuccessful. United States v. Alonso, 740 F.2d 862, 868 (11th Cir.1984).

The district court’s determination that the Government’s application established the requisite necessity is subject to review for clear error. United States v. Weber, 808 F.2d 1422, 1424 (11th Cir.1987). The Government admits that as of July 2004, prior to its application for the wiretap order, the confidential informant (“Cl”) had enabled the Government to “build a solid case against Jonah and [co-defendant] Amoo-Adare.” The DEA’s use of traditional investigative techniques had not, however, enabled it to obtain information regarding Jonah’s drug suppliers, transportation methods, down-line distributors, and financial resources. The Government sought the wiretap orders in an attempt to obtain such information. While Jonah argues that such information could have been obtained using traditional surveillance techniques or the Cl, the Government found these methods unsuccessful due to Jonah’s use of counter-surveillance and the Cl’s inability to continue in the investigation. 1

The judge to whom the wiretap application is made is clothed with broad discretion in considering the application, Alonso, 740 F.2d at 868-69. In the instant case, the district court did not clearly err in granting the wiretap application.

B. Franks hearing

Jonah argues that the district court erred in denying his request for an eviden-tiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), regarding the affidavits submitted in support of the wiretap orders. While this Court has not articulated the precise standard of review of a district court’s denial of a Franks hearing, normally a district court’s decision regarding the need for an evidentiary hearing is reviewed for abuse of discretion. United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.2006). We shall apply that standard here.

“[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The Eleventh Circuit applies the Franks

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Bluebook (online)
314 F. App'x 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ricardo-wilson-ca11-2009.