United States v. Wilson

183 F. App'x 814
Court of Appeals for the Tenth Circuit·Decided June 13, 2006·No. No. 05-1275·Published·Cited by 5 cases

Opinion

ORDER AND JUDGMENT*

STEPHEN H. ANDERSON, Circuit Judge.

Dwayne Wilson was convicted, following a jury trial, of thirteen counts relating to his participation in a drug distribution conspiracy and was sentenced to 240 months’ imprisonment, followed by ten years of supervised release, and assessed a special assessment of $1300. He appeals, challenging the district court’s denial of his motion to suppress wiretap evidence and its refusal to order the government to produce polygraph data, and raising several sentencing issues. For the reasons set forth below, we affirm.

BACKGROUND

Wilson and eighteen alleged coconspirators were first indicted in January 2003. The charges resulted from an investigation initiated by the Denver, Colorado, Metropolitan Gang Task Force, working with agents of the Federal Bureau of Investigation (“FBI”) (collectively referred to as the “Task Force”), in August 2001, after hearing from an informant that members of the Crenshaw Mafia Gangster (“CMG”) Blood street gang, including Donovan Stallings, were involved in the distribution of large quantities of cocaine and crack cocaine. Stallings was the initial focus of the Task Force’s investigation. Beginning in October 2001, the Task Force sought and obtained court authorization to utilize pen registers and trap and trace devices on Stallings’ cellular telephone.1 Through these mechanisms, the Task Force identified and interviewed a second informant in January 2002 who then cooperated with the Task Force in carrying out a number of controlled buys of cocaine from Stallings. The Task Force used these occasions to conduct further surveillance of Stallings’ movements. The second informant also introduced an undercover officer to Stallings. In August 2002, the Task Force also obtained court authorization to place a GPS tracking device on Stallings’ vehicle. When the vehicle was towed for the purpose of installing the GPS device, a dog trained in narcotics detection alerted on the vehicle, a search warrant was obtained, and a search was conducted.

[817] By this time, the Task Force had identified Brian Quintana as another individual involved in the distribution conspiracy. In August 2002, the Task Force obtained court authorization to install a pen register and trap and trace device on Quintana’s cellular telephone, and in October 2002, it obtained court authorization to install a GPS tracking device on Quintana’s vehicle. On three occasions, the Task Force also conducted searches of Quintana’s trash.

On October 24, 2002, the Task Force submitted an application for a court order authorizing a wiretap on Stallings’ cellular telephone. The application stated that there was probable cause to believe that a group which it called the Denver, Colorado CMB Blood Drug Distribution Organization — including Stallings, Quintana, twelve other named individuals and others “as yet unknown” — were engaged in a cocaine distribution conspiracy and that the wire communications occurring through Stallings’ telephone would reveal “the manner and means of distributing and delivering quantities of cocaine and cocaine base for profit.” Application at 5, R. Yol. II ex. 1-A.

In a supporting affidavit, Special Agent Todd Wilcox described the information the Task Force had obtained using other investigative techniques and explained the limitations of those techniques. In regard to GPS tracking, the affidavit stated that “the GPS data does not indicate who is driving the [vehicle] or if the driver actually meets with anyone,” nor could it indicate “the exact address where the vehicle stops.” Aff. in Support of [Wiretap] Application at 129-30, R. Vol. II ex. 1-B. In regard to pen registers and trap and trace devices, the affidavit explained that those methods “do not record the identity of the parties to the conversation, or differentiate between legitimate calls and calls for criminal purposes.” Id. at 144. Moreover, the data that had been obtained indicated that the calls often involved cellular telephones which, in Special Agent Wilcox’s experience, were often registered under false names.

In regard to visual surveillance, the affidavit stated that this method had failed to show “where and how often the delivery of the narcotics occurs or when and where the money ‘pooling’ takes place,” nor had it “identified all of the suppliers of cocaine” to Stallings or other CMG Blood gang members. Id. at 131. Furthermore, the Task Force had not been able to determine through surveillance “where the drug proceeds are being kept, or where the drugs are currently being stored.” Id. at 132. In regard to confidential sources, the affidavit indicated that although the Task Force had used an informant to conduct controlled buys from Stallings, those occasions had not revealed any information about Stallings’ suppliers. The affidavit indicated Special Agent Wilcox’s opinion that the undercover agent introduced to Stallings would also be unlikely to receive any information about suppliers. It also explained that possible witnesses or suspects would likely be unwilling to reveal any useful information during interviews and that such interviews could compromise the ongoing investigation. Similarly, it was considered unlikely that searches of various locations where Stallings was known to spend time could be conducted without alerting Stallings and his coconspirators to the investigation, “thereby possibly causing them to flee, destroy evidence, or halt their business.” Id. at 144.

As for the trash searches, they had confirmed that Quintana was involved in drug distribution but had not provided any further information. The affidavit also indicated that a variety of investigative techniques involving Postal Service checks of names associated with certain addresses [818] and other checks of various types of records, including wages, tax returns, property taxes, and financial wire transfers, had “not provided concrete evidence involving the nature and scope” of the distribution conspiracy. Id. at 147.

The affidavit then listed the information that the Task Force hoped to learn through the requested wiretap, including the identification of members of the distribution organization that were not yet known, the roles played by all members, the identification of the organization’s suppliers, and the identification of when and where meetings and deliveries took place. The application requested that the wiretap be allowed to continue for at least thirty days.

The district court issued an order authorizing a thirty-day wiretap on October 24, 2002. It agreed there was probable cause to believe Stallings and others were engaged in a drug distribution conspiracy and that the interception of his telephone communications would reveal “the specifics” of the conspiracy and related offenses, “including the manner and means of the commission of the offenses.” Order at 3, R. Yol. II ex. 1-C. The court further concluded that “it has been established that normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or are too dangerous to employ.” Id.

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United States v. Wilson, 183 F. App'x 814 (10th Cir. 2006).

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