Petition for Writ of Certiorari — Chaplin v. United States
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Supreme Court of the United States
OCTOBER TERM, 1996
KERRY CHAPLIN,
Petitioner,
V.
THE UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Ap»eals
for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
REUBEN DAVIS *
SHANE M. EGAN
BOONE, SMITH, DAVIS,
Hurst & DICKMAN
500 Oneok Plaza
100 West Fifth Street
Tulsa, Oklahoma 74103-4215
(918) 587-0000
Counsel for Petitioner
* Counsel of Record
WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTION PRESENTED FOR REVIEW
Whether the Court of Appeals, in refusing to allow
a criminal defendant an opportunity to present his argu-
ments on the illegality of a wiretap for the reason that a
prior panel of the Court of Appeals in a separate case
upheld the validity of the same wiretap, impermissibly
applied offensive collateral estoppel to deprive a criminal
defendant of his fundamental right to substantive due
process?
il
LIST OF INTERESTED PARTIES
Milton Edwards, Terry Ratliff, Sr., and William T.
Lawrence, Jr.
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW .................
LIST OF INTERESTED PARTIES ........00..0.000000000000.....
Wiimote OR AU THORE TIS nanan. enc ocnceccensceresseseccee-
Sa Ng eked Suv cdepylterssineceancviane
Na cdi aca cacrodiceoncesspsansivesinbcgunpnansiindanens
CONSTITUTIONAL AND STATUTORY PROVI-
3 ha) Sg > | ER
DIA. OF Thue CASE ..............................
A. Pactual Backrround ................................................
B. The Opinion of the District Court ...... NIDA Soe, oa
C. The Opinion of the Court of Appeals
REASONS FOR GRANTING THE PETITION ......
I. THE DECISION OF THE COURT OF AP-
PEALS DEPRIVES CHAPLIN OF HIS FUN-
DAMENTAL RIGHT OF DUE PROCESS BY
DENYING HIM AN OPPORTUNITY TO LITI-
GATE THE LEGALITY OF THE WIRETAP....
Il. A WRIT OF CERTIORARI SHOULD BE
GRANTED TO RESOLVE THE CONFLICT
AMONG THE COURTS OF APPEALS AS TO
WHETHER COLLATERAL ESTOPPEL MAY
BE APPLIED OFFENSIVELY AGAINST A
CRIMINAL DEFENDANT .....WW0000 oo...
ai sagas nace ts dnsacteeneouetensinesecancereeneve
6
iv
TABLE OF AUTHORITIES
CASES Page
Ashe v. Swenson, 397 U.S. 486, 90 S.Ct. 1189,
ee Tate BE NASD, siciincrcsssiteedciccseccosiceteines _ 9,10
Blonder-Tongue Lab., Inc. v. University of Ill.
Found., 402 U.S. 318, 91 S.Ct. 1434, 28 L.Ed.2d
EEE ols le er ee en ed 8
Catches v. United States, 582 F.2d 453 (8th Cir.
} | f . ) a IRI p eee et eee SRS rea NEARS AO ZON Liees 8
Coppedge v. United States, 369 U.S. 438, go S.Ct.
O27. Bien EE NS KAce nici dei, 8
Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85
Rea Ba Se “RD ie iicnactlias txdecee keene tenia eices 8
Hernadez-Uribe v. United States, 515 F.2d 20
(8th Cir. 1975), cert. denied, 423 U.S. 1057, 96
St. Tet, 46 LBA CST CTS) 6.2 ccs.:.... 9
Martin v. Wilkes, 490 U.S. 755, 109 S.Ct. 2180,
LR ETE Tee BE CEO ocncccsnsedicenthesccetdeenssiscrnsesae 6
Pena-Cabanillas v. United States, 394 F.2d 785
, Bi Me |; eRe ang oC pe mae Nec eres 9
Sealfon v. United States, 332 U.S. 575, 68 S.Ct.
yp a Re Pw) | Se ee 10
United States v. Bonilla Romero, 836 F.2d 39 (1st
Cir. 1987), cert. denied, 488 U.S. 817, 109 S.Ct.
BG, 200 Ee Oe Be Ces ise. 6
United States v. Brittain, 41 F.3d 1409 (10th Cir.
ae eee 7
United States v. Bruno, 333 F. Supp. 570 (E.D.
og SR 5 | SS WORDED SA Oy Be PRO HR WRT tte a 10
United States v. Colacurcio, 514 F.2d 1 (9th Cir.
cg” BIRLA AIR aig alarrc es AU Eee! A. Vell pe tc ae sale IR de, 9
United States v. De Angelo, 138 F.2d 466 (8rd Cir
Ra a Me edaierels coliCel ati Ten, acnlne hae Posh inal 10
United States v. Hamilton, 931 F.2d 1046 (5th Cir
bc RRR EAA URERER Reta oli hs hath e PR nde i I 9
United States v. Harnage, 976 F.2d 633 (11th Cir
Ponca cas ani ideas a ectapaneaaiva aaa kee 10
United States v. MacCollum, 426 U.S. 317, 96 S.Ct.
2086, 46.1. Fa.2a G66 (1976) .....................-:........ : 8
United States v. Pelullo, 14 F.8d 881 (8rd Cir.
BED asentitvecncrvascumrnadeeanasacinalnicid date aemean aoa 10
Vv
TABLE OF AUTHORITIES—Continued
Page
United States v. Rosenberger, 872 F.2d 240 (8th
CAO OMUEE swiccsscoic-thceicenaasahcaeaiianeceee see uma )
United States v. Tavarez, 40 F.3d 11386 (10th Cir.
BOWED -iccctieucpsvacacaoneiqnceneenaas aa ane 5,7
United States v. Thoresen, 428 F.2d 654 (9th Cir.
ROPE junsciatave tite Se ETON ION Crtrrer ars INO T OS 9
STATUTES AND CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. V (Due Process Clause) .......... 2
DO Cec ae i cl hae elec ee ina eee 4
pPBRR oe ES eae ene SR mn ale ae ee 4
AQIS 254 GF CES Tb | nee Lr len eae 2,4
Sa TF A Te OD vciknc ni intencasnn tir cele, 2,4
See Rls I is et edinssses cece ae -.
SF Ae RED 2d hess cc oeeeren vst 2
FG Oe IE aha eel ee ees ea eee 4
OKLA. STAT. tit. 18, §§ 176.1 et seq. ........2....2..-...cee eee 2,3
MISCELLANEOUS AUTHORITIES
Comment, The Use of Collateral Estoppel against
the Accused, 69 Colum. L. Rev. 515, 516 (1969)... 9
1B JAMES W. MOORE ET AL., MOORE’S FEDERAL
PRACTICE {] 0.411[1] (2d ed. 1994) 2.0000. 6
RESTATEMENT OF JUDGMENTS § 93 (1942) .......... 6
Allan D. Vestal, Issue Preclusion and Criminal
Prosecution, 65 Iowa L. Rev. 281 (1980) ......... 9
IN THE
Suprene Court of the United States
OCTOBER TERM, 1996
KERRY CHAPLIN,
Petitioner,
V.
THE UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the court of appeals is reported at 69
F.3d 281. (App. la-37a). The opinion of the district
court is not reported. (App. 38a-40a).
JURISDICTION
The judgment of the court of appeals was entered on
October 24, 1995. On December 1, 1995, the court of
appeals denied the petitioner’s timely joint petition for
rehearing and suggestion for hearing en banc. (App. 4la-
42a). The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. The Due Process Clause of the Fifth Amendment
to the Constitution of the United States, provides in perti-
nent part:
. nor shall any person . . . be deprived of life,
liberty, or property, without due process of law...
2. The pertinent sections of the statutes under which
the petitioner was prosecuted, though the merits of this
petition do not turn upon such sections, were 21 U.S.C.
§ 841(a)(1), 21 U.S.C. § 843(b), and 21 U.S.C. § 846
and are reproduced at App. 43a-44a.
3. The relevant sections of the Oklahoma Security of
Communications Act, OKLA. STAT. tit. 13, §§ 176.1 ef
seq., though the merits of this petition do not turn upon
such sections, are reproduced at App. 44a-46a.
STATEMENT OF THE CASE
A. Factual Background
In the summer of 1990, Milton Edwards (“Edwards”)
and Terry Ratliff, Sr. (“Ratliff’) began purchasing small
quantities of cocaine from Balbino Tavarez (“Tavarez” )
in Houston, Texas for resale near their home in Atoka,
Oklahoma. (App. 3a). In July, 1992, Edwards ap-
proached Jerry Grist (“Grist”) and proposed that Grist
transport the cocaine from Houston to Tulsa. (App.
3a).
On April 19, 1993, J. Tully McCoy (“McCoy”), dis-
trict attorney for Judicial District 21, sought, pursuant
to the Oklahoma Security of Communications Act, OKLA.
STAT. tit. 13, $$ 176.1-.14 (the “Act”), an ex parte order
3
from the Oklahoma Court of Criminal Appeals to wire-
tap Grist’s residence and business phones in Atoka, Okla-
homa. (App. 4a, 8a, 9a). Section 176.9(C) of the Act
authorizes the “interception of wire . . . communications
within the territorial jurisdiction of the judicial district
of the district attorney requesting the order.” OKLA. STAT.
tit. 13, § 176.9(C). Judicial District 21 includes Cleve-
land, McCain, and Garvin counties. Atoka is in Atoka
County which is in Judicial District 19. (App. 9a).
Under the Act, an improper application for a wiretap
will render the resulting order invalid. OKLA. STAT. tit.
13, $ 176.7.
When the April 19, 1993 order was issued, a wiretap
device was placed on telephone lines physically located in
Atoka County near Grist’s phones. (App. 4a, 9a, 38a,
39a). Electronic signals from that device were then routed
by arrangement with the telephone company to a monitor
room in Cleveland County where state agents intercepted
and recorded calls between Grist and several individuals
including the petitioner, Kerry Chaplin (‘“Chaplin’’).
(App. 9a, 38a, 39a). Asa result of that wiretap, Tavarez.
Grist, and others were prosecuted in the Western District
of Oklahoma (the “Tavarez Suit”) and ultimately pled
guilty and agreed to cooperate in the prosecution of
Chaplin, Edwards, Ratliff and William T. Lawrence
(“Lawrence”) (collectively, “Defendants”). (App. 4a).
Prior to the wiretap of Grist’s phones, state agents were
unaware of any drug activities of Chaplin.
On September 21, 1993, as part of his effort to “co-
operate,” Grist contacted Chaplin to see if Chaplin was
interested in dealing with his friend “Joe” (DEA special
agent Joe Leszczynski). (App. 4a-Sa). Through subse-
quent calls and a one face-to-face meeting, Joe arranged
a meeting between Chaplin and Grist’s father, Herb Grist.
(/d.) On November 3, 1993, Chaplin was arrested in
Tulsa where he was videotaped purchasing one kilogram
of cocaine from cooperating witness Herb Grist. (App. 5a).
4
B. The Opinion of the District Court '
On January 26, 1994, Chaplin was indicted in the
United States District Court for the Northern District
of Oklahoma (the “District Court”) for conspiracy to
possess cocaine with intent to distribute and for posses-
sion of cocaine with intent to distribute under 21 U.S.C.
S$ 846, 841(a)(1), respectively, as well as for use of
a communications facility, in facilitating a violation of
federal narcotics laws under 21 U.S.C. § 843(b).° (App.
6a).
Following their indictment, Defendants filed a motion
to suppress asserting that the evidence against them was
derived from an illegal wiretap since McCoy lacked juris-
diction to obtain the wiretap order. (App. 8a, 39a). Spe-
cifically, Defendants argued that the wiretap was facially
invalid because McCoy, as district attorney for Judicial
District 21, was not authorized to seek a wiretap on
phones located in Judicial District 19 which was outside
his territorial jurisdiction. (App. 39a). On April 20,
1994, the District Court, while acknowledging that “[i]t
may be reasonably argued that the Oklahoma legislature
intended to restrict telephones to be intercepted to be
physically located within the jurisdiction of the district
attorney applying for the intercept order”, nevertheless
denied the motion to suppress. (App. 40a).
1The District Court has jurisdiction by virtue of 18 U.S.C.
§ 3251 which grants district courts original jurisdiction of offenses
against the laws of the United States. The United States Court
of Appeals for the Tenth Circuit (the “Court of Appeals’) has
jurisdiction by virtue of 28 U.S.C. § 1291 which grants the courts
of appeals jurisdiction over all final judgment of the district courts
and by virtue of 18 U.S.C. § 3742(a).
* Specifically, Chaplin was charged with one count of conspiracy
to possess cocaine with intent to distribute and to distribute cocaine
(“Count 1’), five counts of use of a communication facility in
furtherance of a narcotics felony (“Counts 2-6’), and one count of
possession of cocaine with intent to distribute (“Count 7’).
(caeieceiniaeeieiaeieaaiie eae
On May 5, 1994, Chaplin was convicted on all of the
above counts. (App. 6a). On December 20, 1994,
Chaplin was sentenced to 151 months imprisonment on
Counts 1 and 7 to run concurrently, forty-eight months
on Counts 2-6 as to each count to run concurrently and
concurrently with Counts | and 7, and fined $5,000.00.
C. The Opinion of the Court of Appeals
On December 22, 1994, Chaplin filed a timely notice
of appeal. On appeal, Chaplin asserted inter alia that
the District Court erred in denying the motion to suppress
because the evidence against Chaplin was derived from
an illegal wiretap. Rather than reach the merits of the
issue, the Court of Appeals relied on its prior decision
in the Tavarez Suit which upheld the validity of the same
wiretap at issue in the instant case. (App. 8a-10a). See
United States v. Tavarez, 40 F.3d 1136 (10th Cir. 1994).
In Tavarez, another panel of the Court of Appeals held
that under the Act, jurisdiction to apply for an order
vests not only in the judicial district where the mechanical
devices are located, but also in the place where the con-
tents of the communication are first heard by law enforce-
ment Officials. (App. 9a-10a). Accordingly, the prior
panel concluded that because McCoy resided in the judi-
cial district where the phone conversations were first heard
by DEA agents, McCoy properly had jurisdiction. (App.
10a). The Court of Appeals then concluded that it was
bound by its construction of the Act in Tavarez absent an
intervening Supreme Court precedent or en banc recon-
sideration. (App. 10a). The Court of Appeals so held
even though Chaplin was not a party to the Tavarez Suit
and did not have an opportunity to present his arguments
on the invalidity of the wiretap.
6
REASONS FOR GRANTING THE PETITION
A writ of certiorari should be granted for several rea-
sons. First, in refusing to allow Chaplin an opportunity
to present his arguments concerning the illegality of the
wiretap, the Court of Appeals impermissibly applied
offensive collateral estoppel to deprive Chaplin of his
fundamental right to substantive due process. As more
fully demonstrated below, such decision was in derogation
of the Due Process Clause of the Fifth Amendment of the
United States Constitution and conflicts with prior deci-
sions of this Court. In addition to the forgoing reason,
the Court should grant the petition for certiorari to re-
solve a conflict among the circuits as to whether collateral
estoppel can be applied offensively against criminal
defendants.
I. THE DECISION OF THE COURT OF APPEALS
DEPRIVES CHAPLIN OF HIS FUNDAMENTAL
RIGHT OF DUE PROCESS BY DENYING HIM AN
OPPORTUNITY TU LITIGATE THE LEGALITY OF
THE WIRETAP.
As a preliminary matter, it must be recognized that
the decision of the Court of Appeal completely ignores
the well-established rule that in the case of both res judi-
cata and collateral estoppel a judgment is conclusive only
against a party of the action in which it was rendered.
See 1B JAMES W. Moore ET AL., MOORE’S FEDERAL
PRACTICE € 0.411[1] (2d ed. 1994); RESTATEMENT OF
JUDGMENTS § 93 (1942) (“[A] person who is not a
party ... is not bound by or entitled to claim the bene-
fits of an adjudication”). In other words, the party to be
precluded from relitigating an issue decided in a previous
litigation, must have been either a party or in privity with
a party to that litigation. United States v. Bonilla Ro-
mero, 836 F.2d 39, 43 (1st Cir. 1987), cert. denied,
488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988). In-
deed, this Court has referred to the foregoing as a prin-
ciple with which “all agree.” Martin v. Wilkes, 490 U.S.
755, 761, 109 S.Ct. 2180, 2184, 104 L.Ed.2d 835
J
(1989). In the instant case, it is uncontested that Chap-
lin was neither a party nor in privity with a party to the
Tavarez Suit. Accordingly, Chaplin cannot be bound by
determinations rendered in the Tavarez Suit and cannot
be precluded from litigating the illegality of the wiretap.
Ignoring the above well-established principle, the Court
of Appeals held that Chaplin was bound by a prior panel's
decision in a separate case to which Chaplin was not a
party. Indeed, after citing the prior panel’s rejection of
a “similar challenge” to the same wiretap in Tavarez, the
Court of Appeals stated:
Defendants concede that our decision in Tavarez
upheld the validity of the wiretap in question. De-
fendants' contend, however, that they were not a
party to that case and that we should reconsider
the issue and reach a different result. We disagree.
We are bound by our authoritative construction of
the Oklahoma wiretap statute in Tavarez absent an
intervening Supreme Court precedent or en banc
reconsideration. United States v. Brittain, 41 F.3d
1409, 1415 (10th Cir. 1994). Accordingly, we must
follow the Tavarez panel’s construction of the Okla-
homa wiretap statute in the instant case.
(App. 10a).
Whatever considerations of policy may bear on matters
of stare decisis, the Tavarez panel’s decision adjudicated
a legal claim regarding a specific, discrete, historical
event—the lawfulness of wiretaps on an_ individual’s
phones. Chaplin was not a party to the Tavarez case and
had no standing there to make his arguments regarding
the lawfulness of the wiretap. But he was, nevertheless,
prosecuted based on evidence obtained from that wiretap
and sought on appeal to be heard on the issue of its law-
fulness. Under such circumstances, the Court of Appeal’s
refusal to consider Chaplin’s arguments is tantamount to
collaterally estopping him from litigating the issue.
That Chaplin has due process protection to be heard
on the lawfulness of a dispositive adjudicative fact in-
is
volved in his case is demonstrated in Blonder-Tongue
Lab., Inc. v. University of Ill. Found., 402 U.S. 313, 91
S.Ct. 1434, 28 L.Ed.2d 788 (1971), a patent-infringe-
ment case, where the Court said:
Some litigants—those who never appeared in a prior
action—may not be collaterally estopped without
relitigating the issue. They have never had a chance
to present their evidence and arguments on the claim.
Due process prohibits estopping them despite one or
more existing adjudications of the identical issue
which stands squarely against their position. Hans-
berry v. Lee, 311 U.S. 32, 40 (1940).
Blonder-Tongue, supra, 402 U.S. at 329. A direct appeal
from a district court judgment in a criminal case is a
matter of right, Coppedge v. United States, 369 U.S. 438,
441, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962), a right
that has been described as a “fundamentai right of due
process,” Catches v. United States, 582 F.2d 453, 458
(8th Cir. 1978). Compare United States v. MacCollum,
426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976)
(dictum, plurality opinion). In refusing to hear Chap-
lin’s arguments on the illegality of the wiretap, the Court
of Appeals deprived Chaplin of his fundamental right
to due process of law.
Il. A WRIT OF CERTIORARI SHOULD BE GRANTED
TO RESOLVE THE CONFLICT AMONG THE
COURTS OF APPEALS AS TO WHETHER COL-
LATERAL ESTOPPEL MAY BE APPLIED OFFEN-
SIVELY AGAINST A CRIMINAL DEFENDANT
Even if one were to assume arguendo that collateral
estoppel could be invoked against Chaplin (which it can-
not since he was not a party to the prior litigation), the
Court should grant a writ of certiorari to resolve the
conflict among the courts of appeals as to whether col-
lateral estoppel may even be invoked by the government
against a criminal defendant. Although originally devel-
oped in civil cases, collateral estoppel has been applied
by this Court in criminal cases for the benefit of the de-
9
fendant. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct.
1189, 1194, 25 L.Ed.2d 469 (1970). This Court has not
addressed directly whether collateral estoppel can be ap-
plied against the defendant in a criminal case. However,
courts as well as commentators have noted that the appli-
cation of collateral estoppel to criminal defendants raises
difficult due process questions. See e.g., United States v.
Hamilton, 931 F.2d 1046, 1053 n.1 (Sth Cir. 1991);
Allan D. Vestal, Zssue Preclusion and Criminal Prosecu-
tion, 65 lowa L.Rev. 281, 312-21 (1980) (expressing
concern that application of collateral estoppel against
criminal defendants might infringe due process and jury
trial rights ,
Citing “wise public policy and common sense judicial
administration”, the Court of Appeals for Ninth Circuit
has allowed collateral estoppel to be invoked against a
criminal defendant. Pena-Cabanillas v. United States, 394
F.2d 785, 786-88 (9th Cir. 1968); accord United States
v. Colacurcio, 514 F.2d 1, 6-7 (9th Cir. 1975); see also
United States v. Thoresen, 428 F.2d 654, 666-67 (9th
Cir. 1970). The Court of Appeals for the Eighth Circuit
has likewise adotped this rule. See Hernadez-Uribe v.
United States, 515 F.2d 20, 21-22 (8th Cir. 1975}, cert.
denied, 423 U.S. 1057, 96 S.Ct. 791, 46 L.Ed.2d 647
(1976): United States v. Rosenberger, 872 F.2d 240,
241-42 (8th Cir. 1989) (defendant collaterally estopped
from moving to suppress evidence previously found to be
legally obtained). The rationale supporting such decisions
has been severely criticized for not paying sufficient atten-
tion to the constitutional objections. See Comment, The
Use of Collateral Estoppel against the Accused, 69 Colum.
L.Rev. 515, 516 (1969) (“[t]his practice [of applying
collateral estoppel against a criminal defendant] raises
serious policy and constitutional issues which have not
been adequately dealt with by the courts”).
Despite the above cases, “there has been a strong, un-
elaborated assumption that the doctrine of collateral
estoppel cannot be invoked in criminal cases against the
7 |
10
defendant.” United States v. Pelullo, 14 F.3d 881, 891
(3rd Cir. 1994); see also United States v. Harnage, 976
F.2d 633, 634 (11th Cir. 1992) (“[collateral estoppel’s]
use in the criminal arena, however, has traditionally been
limited to only one party—the defendant.”). Indeed,
Chief Justice Burger, though disagreeing with the Court’s
ultimate holding, stated that: “[if the defendant] had
been convicted at the first trial, presumably no court
would then hold that he was thereby foreclosed from liti-
gating the identification issue at the second trial.” Ashe
supra 397 U.S. at 465, 90 S.Ct. at 1205 (Burger, C.J.,
dissenting). Other courts have similarly concluded. See
United States v. De Angelo, 138 F.2d 466, 468 (3rd
Cir. 1943) (“[a]n accused is constitutionally entitled to
a trial de novo of the facts alleged and offered in support
of each offense charged against him and to a jury’s in-
dependent finding with respect thereto.”) cited in Sealfon
v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 239,
92 L.Ed.2d 180 (1948); United States v. Bruno, 333
F.Supp. 570, 576 (E.D. Pa. 1971) (“[a]n accused is al-
ways constitutionally entitled to a trial de novo of the
facts alleged . . . and collateral estoppel is available as a
defense even though it can never be raised offensively by
the prosecution.”) (emphasis supplied). The Eleventh
Circuit Court of Appeals has also held that the govern-
ment cannot collaterally estop a criminal defendant from
relitigating an issue decided against a defendant in a dif-
ferent court in a prior proceeding. See Harnage, supra,
976 F.2d at 636. In light of the above, a writ of certiorari
should be granted for the wholly additional reason that
in so doing the Court could resolve the present conflict be-
tween the courts of appeals as to whether or not col-
lateral estoppel can be applied against a defendant in a
criminal case.
1]
CONCLUSION
For the foregoing reasons, a writ of certiorari should
be granted.
Respectfully submitted,
REUBEN DAVIS *
SHANE M. EGAN
BOONE, SMITH, DAVIS,
HuRST & DICKMAN
500 Oneok Plaza
100 West Fifth Street
Tulsa, Oklahoma 74103-4215
(918) 587-0000
Counsel for Petitioner
February 23, 1996 * Counsel of Record
APPENDICES
TABLE OF CONTENTS
APPENDIX A Page
Decision of the United States Court of Appeals for
the Tenth Circuit, United States v. Edwards, et al.,
October 24, 1995 la
APPENDIX B
Order of the United States District Court for the
Northern District of Oklahoma, Denying Motion to
Suppress, United States v. Edwards, et al.. April
20, 1994 38a
APPENDIX C
Order of the United States Court of Appeals for
the Tenth Circuit, Denying Petition for Rehearing
and Suggestion for Rehearing En Banc. United
States v. Edwards, et al., December 1, 1995 tla
APPENDIX D
Relevant Statutory Provisions 43a
la
APPENDIX A
[Filed Oct. 24, 1995]
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 94-5202
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
VS.
MILTON EDWARDS,
Defendant-A ppellant.
No. 94-5203
UNITED STATES OF AMERICA.
Plaintiff-A ppellee,
VS.
TERRY RATLIFF, SR..
Defendant-A ppellant.
No. 94-5204
UNITED STATES OF AMERICA.
laintiff-A ppellee,
VS,
WILLIAM THOMAS LAWRENCE,
Defendant-A ppellant.
ae ee
2a
No. 95-5003
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
VS.
KERRY CHAPLIN,
Defendant-A ppellant.
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 93-CR-185-C)
Before BALDOCK and McWILLIAMS, Circuit Judges,
and BROWN, District Judge.*
BALDOCK, Circuit Judge.
Defendants Milton Edwards, William Lawrence, Jr.,
Kerry Chaplin, and Terry Ratliff, Sr. were tried together
and convicted in a jury trial of conspiracy to possess with
intent to distribute cocaine and to distribute cocaine, 21
U.S.C. §§ 846, 841(a)(1). Defendants Chaplin and Ed-
wards were also convicted of use of a communication fa-
cility, a telephone, in facilitating a violation of federal
narcotics laws, 21 U.S.C. § 843(b). Defendants appeal
thcir convictions and sentences. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We affirm.’
* The Honorable Wesley E. Brown, Senior United States District
Judge for the District of Kansas, sitting by designation.
1 Because Defendants raise common issues, these cases have been
consolidated for purposes of appeal.
nn
3a
I. FACTS
Testimony and evidence presented during trial detailed
the following course of events. The instant conspiracy
arose in the summer of 1990, when Defendants Edwards
and Ratliff began purchasing small quantities of cocaine
from Balbino “Munchie” Tavarez in Houston, Texas for
resale near their home in Atoka, Oklahoma. Over the
next two years, Edwards purchased increasing quantities
of cocaine from Tavarez but experienced difficulties trans-
porting the cocaine from Houston.
In July 1992, Edwards approached Jerry Grist (“J.
Grist”) in Atoka, and proposed that J. Grist transport
the cocaine from Houston to Tulsa through the use of
J. Grist’s trucking company employees. J. Grist agreed
to this arrangement in exchange for payment of $1,000
per kilogram of cocaine transported. To carry out this
plan, Edwards and Ratliff escorted J. Grist to Dallas.
Texas to meet with Tavarez. There, J. Grist met with
Tavarez, received instructions on making cocaine pur-
chases, and observed Edwards purchase two kilograms of
cocaine from Tavarez.
se Oca
In September 1992, Edwards was placed on probation
for an unrelated 1990 drug charge and was placed in a
halfway house. During Edwards’ confinement, Tavarez
arranged transactions directly with J. Grist for Edwards.
At this point, Defendant Chaplin began purchasing co-
caine from J. Grist which allowed him to obtain better
quality cocaine than he was able to obtain on his own.
In making these purchases, Chaplin pooled his money into
a common fund with the other codefendants in order to
make bulk purchases of cocaine, as the price of cocaine
was less expensive when purchased in large quantities.
At trial, J. Grist estimated that he or his employees rou-
tinely transported multiple kilograms of cocaine from
*In a prior appeal, we affirmed Tavarez’ conviction for con-
spiracy to distribute methamphetamine and cocaine. See United
States v. Tavarez, 40 F.3d 1136 (10th Cir. 1994).
4a
Houston to Tulsa, at least every week, until his arrest on
May 9, 1993. Once the cocaine arrived in Tulsa, J. Grist
distributed the cocaine among the Defendants who had
invested in the purchase.
In February 1993, the district court revoked Edwards’
probation and sentenced him to prison. The following
September, Edwards contacted J. Grist from prison and
informed him that Ratliff would assume control of his
portion of the operation. Specifically, Ratliff would com-
municate with the Defendants about their cocaine needs,
collect the money, and place orders with J. Grist. Al-
though Edwards later replaced Ratliff with Defendant
Lawrence, Ratliff continued to receive cocaine from other
Defendants and occasionally pooled his own funds with
that of other Defendants to purchase cocaine from J.
Grist.
In April 1993, state agents received an order from an
Oklahoma state court authorizing the interception of tele-
phone communications from two specific telephone num-
bers used by J. Grist at his home and trucking business
in Atoka County, Oklahoma. Pursuant to the wiretap
order, agents intercepted telephone conversations between
J. Grist and Tavarez, some of which directly concerned
the cocaine distribution operation involving Defendants.
In particular, agents intercepted a phone call on May 7,
1993, which revealed that J. Grist planned to travel to
Houston to purchase a multi-kilogram quantity of cocaine
from Tavarez. On May 9, 1993, agents arrested J. Grist
near Atoka, Oklahoma as he was returning from Houston.
Four kilograms of cocaine were found in his possession,
purchased with funds provided by Defendants Lawrence,
Lewis, and Chaplin.
Following his arrest, J. Grist began cooperating with
government agents regarding the drug distribution opera-
tion.* As part of his cooperation, J. Grist made several
3On June 2, 1993, a grand jury indicted J. Grist on various
charges as a result of his participation in the instant drug opera-
Sa
monitored telephone calls to Ratliff informing him that a
“friend” from El Paso, Texas, was planning to visit Tulsa
for the purpose of distributing cocaine. Unbeknowst to
Ratliff, the “friend” was an undercover DEA Agent, Joe
Leszczynski. Agent Leszczynski contacted Ratliff on Sep-
tember 26, 1993, to discuss a potential drug transaction.
In addition to his discusisons with Ratliff, Agent Les-
zczynski contacted Defendant Chaplin by telephone sev-
eral times during October 1993 to arrange cocaine pur-
chases. On November 2. 1993, Leszczynski called Chap-
lin to finalize a drug buy the next day. During this call,
Chaplin discussed his past involvement with Defendants
in purchasing cocaine through J. Grist.
On November 3, 1993, government agents recorded
telephone calls made by a cooperating coconspirator,
Herbert Grist (“H. Grist”), father of J. Grist. In these
calls, H. Grist discussed a planned purchase of cocaine
with Chaplin and Ratliff. Chaplin then met H. Grist at
the Roadway Motel in Tulsa, in a room monitored by
agents through the use of hidden video and audio trans-
mitters. Agents observed Chaplin negotiate the purchase
of one kilogram of cocaine. After Chaplin paid for the
cocaine, agents arrested him.
Later the same day, H. Grist placed a telephone call
. to Ratliff to give him-the motel and room number. How-
ever, for some reason, Ratliff did not meet H. Grist at
the room and did not negotiate a purchase. Approxi-
mately 30 minutes after H. Grist spoke to Ratliff, Defend-
ant Edwards contacted H. Grist at the motel room and
arranged to meet to discuss a drug transaction. Shortly
thereafter, Edwards and Defendant Lawrence met H.
Grist at the motel room and agents monitored the meeting.
tion. On September 7, 1993, J. Grist pleaded guilty to these
charges. On appeal, we affirmed Grist’s conviction. See United
States v. Grist, No. 94-6049, 1995 WL 331242 (10th Cir. June 1,
1995) (unpublished opinion).
es
6a
At the meeting, Edwards and Lawrence indicated that
they did not want to pay cash for the cocaine but wanted
it “fronted”.* In accordance with instructions from DEA
agents, H. Grist agreed to “front” two kilograms of co-
caine to Edwards and Lawrence. After Lawrence took
possession of the cocaine, agents arrested Edwards and
Lawrence.
On January 26, 1994, Defendants were indicted for
conspiracy to possess with intent to distribute cocaine and
to distribute cocaine, 2! U.S.C. § 846, 841(a)(1). In
addition, Defendants Edwards and Chaplin were indicted
for use of a communication facility, a telephone, in facili-
tating, a violation of federal narcotics laws, 21 U.S.C.
§$ 843(b). Following their indictment, Defendants moved
to suppress evidence obtained pursuant to a_ wiretap,
claiming that the wiretap orcer was improperly issued.
The district court denied the motion. On May 5, 1994,
a jury found Defendants guilty as charged on all counts.
This appeal followed.
On appeal, Defendants raise the following common
issues challenging their convictions: (1) whether the
district court erred in failing to suppress evidence ob-
tained from a wiretap, and (2) whether a fatal variance
existed between the indictment, which alleged a single
_conspiracy, and the government’s proof at trial, which
established the existence of multiple conspiracies.
In addition to these common issues, Defendant Chaplin
challenges the sufficiency of the evidence as to his con-
spiracy conviction. Defendant Ratliff argues the district
court erred in failing to grant his motion for severance.
Defendants Edwards and Lawrence contend the district
court erred in admitting evidence of prior bad acts pur-
eee
4 Fronting consists of a “ ‘credit arrangement whereby a drug
buyer is given drugs in exchange for a promise to pay for them
at some later date.’”” United States v. Evans, 970 F.2d 663, 667
(10th Cir. 1992) (quoting United States v. Mosley, 965 F.2d 906,
915 (10th Cir. 1992) ), cert. denied, 113 S. Ct. 1288 (1993).
7a
suant to Fed. R. Evid. 404(b). Defendant Edwards filed
a pro se supplemental brief appended to the opening
brief by his attorney claiming that the district court erred
by: (1) allowing “the jury selection process to continue
after discovery of an impermissible disparity concerning
African-Americans,” and (2) denving a motion to depose
Herbert Grist pursuant to Fed. R. Crim. P. 15(a).°
5On September 11, 1995, Defendant Lawrence filed a pro se
motion, styled “Request for Withdraw! [sic] of Claim of Direct
Appeal of Counsel from Attorney Craig [sic] P. Bryant.” In his
motion, Defendant Lawrence requested that we stay his appeal so
that he may convince the assistant federal public defender renre-
senting him to raise pursuant to Anders v. California, 386 U.S.
738, 744 (1967) a double jeopardy and an immunity issue in this
direct appeal. In a July 31, 1995 letter attached as an exhibit
to Defendant’s motion, public defender Bryart concluded that he
would not raise the issues on appeal because the issues were not
raised at the district court and did not fall within the plain error
exception. Public defender Bryant, however, indicated that De-
fendant Lawrence could prepare a supplemental brief which Bryant
would in turn seek permission to file. In an order filed September
19, 1995, we denied Defendant Lawrence’s motion styled “Request
for Withdraw! [sic] of Claim of Direct Appeal of Counsel from
Attorney Craig [sic] P. Bryant.”
On September 25, 1995, three days hefore the September 28,
1995 oral arguments in this consolidated appeal, Defendant
Lawrence filed a pro se supplemental brief. In his supplemental
brief, Defendant Lawrence argues we should dismiss the indictment
underlying his conviction in the instant case hecause the indict-
ment violated the double jeopardy clause of the Fifth Amendment.
Specifically, Defendant Lawrence contends that the indictment. con-
stituted double jeopardy because he was previously subjected
to a civil forfeiture proceeding pursuant to 21 U.S.C. § 881(a) (6).
We liberally construe Defendant Lawrence’s pro se brief as a
motion for leave to file a supplemental brief with accompanying
brief, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and
grant the motion to file a supplemental brief. We note, however,
that a pro se party “must follow the same rules of procedure that
govern other litigants.” Oklahoma Federated Gold and Numis-
matics, Inc. v. Blodgett, 24 F.3d 136, 139 (10th Cir. 1994). Be-
cause Defendant Lawrence neither raised the double jeopardy
issue in the district court nor »:sserted it in his opening brief,
we do not address it. See United States v. Griffin, 48 F.3d 1147,
8a
As to sentencing issues, all Defendants claim the
district court erroneously calculated the quantity of co-
caine used to determine their base offense levels. In
addition, Defendant Edwards claims the district court
improperly enhanced his sentence for (1) being an or-
ganizer or leader of the conspiracy, and (2) obstruction
of justice. Defendants Lawrence and Chaplin seek to
incorporate all arguments raised by their codefendants
insofar as they apply to their particular appeals. We
address Defendants’ arguments in turn.
II. Motion to Suppress
Defendants first contend the district court erred in
denying their motion to suppress evidence obtained pur-
suant to a wiretap. Specifically, Defendants contend that
the wiretap application and order were invalid because
the district attorney who applied for the wiretap order
was without jurisdiction to do so. In addition, Defendant
Ratliff contends the application for a wiretap contained
an insufficient showing of requisite necessity for inter-
ception and that the government failed to minimize the
telephone conversations monitored. On appeal from a
motion to suppress, we accept the district court’s factual
findings unless clearly erroneous, review questions of law
de novo, and view the evidence in the light most favorable
to the prevailing party. United States v. Williamson, |
F.3d 1134, 1135 (10th Cir. 1993).
A. Jurisdiction of District Attorney to Apply for
Order
The wiretap order in question was obtained pursuant
to the Oklahoma Security of Communications Act, Okla.
Stat. Ann. tit. 13, $§ 176.1-.14. Under the federal wire-
1151 n.6 (10th Cir.) (refusing to address Eight Amendment
issue raised for first time on direct appeal from a criminal con-
viction), cert. denied, 115 S. Ct. 2630 (1995); Codner v. United
States, 17 F.3d 1331, 1832 n.2 (10th Cir. 1994) (declining to con-
sider issues not raised in the appellant’s opening brief).
9a
tap statute, 18 U.S.C. § 2516(2), we must defer to state
law “‘on the question of the validity of [a] wiretap or-
der obtained in state court under state law.’” United
States v. Tavarez, 40 F.3d 1136, 1137 (10th Cir. 1994)
(quoting United States v. McNulty, 729 F.2d 1243, 1266
(10th Cir. 1983) (en banc)). We review a district
court’s determination of state law de novo. Salve Regina
College v. Russell, 499 U.S. 225, 231 (1991).
Section 176.9(C) of the Oklahoma wiretap statute au-
thorize the “interception of wire . . . communications
within the territorial jurisdiction . . . of the district at-
torney requesting the order.” Okla. Stat. Ann. tit. 13,
§ 176.9(C). The application for a wiretap in the instant
case sought authorization to intercept telephone conver-
sations from two telephones located in Atoka County,
Oklahoma, located in Judicial District 19. The district
attorney who applied for the wiretap resided in Judicial
District 21, located in Cleveland County, where the
agents monitored the conversations.
Under § 176.9(C), Defendants contend “interception”
of communications occurs only where the tapped phones
are physically located. Because the tapped phones were
located in Judicial District 19, Defendants contend the
district attorney for District 21 did not have authority to
apply for the order because he did not reside in the dis-
trict where the phones were physically located. Accord-
ingly, Defendants contend that the wiretap authorization
was invalid and that the district court should have sup-
pressed all evidence obtained pursuant to the wiretap.
We rejected a similar challenge to the validity of the
wiretap in question in Tavarez. In Tavarez, the defend-
ant argued that the district attorney who applied for the
wiretap in the instant case was without jurisdiction to
do so because he did not reside in the judicial district
where the tapped phones were physically located. Tavarez,
40 F.3d at 1138. In rejecting this argument, we held
that under the Oklahoma wiretap statute, jurisdiction to
10a
apply for an order vests not only in the judicial district
where the mechanical devices are located, but also “in
the place where the contents of the communication are
first heard by law enforcement officials.” /d. Because
the district attorney who applied for the wiretap order
resided in the district where the phone conversations were
first heard by DEA Agents, we concluded the district at-
torney properly had jurisdiction. /d.
Defendants concede that our decision in Tavarez up-
held the validity of the wiretap in question. Defendants
contend, however, that they were not a party to that
case and that we should reconsider the issue and reach
a different result. We disagree. We are bound by our
authoritative construction of the Oklahoma wiretap stat-
ute in Tavarez absent an intervening Supreme Court prec-
edent or en banc reconsideration. United States v. Brit-
tain, 41 F.3d 1409, 1415 (10th Cir. 1994). Accord-
ingly, we must follow the Tavarez panel’s construction
of the Oklahoma wiretap statute in the instant case. Un-
der Tavarez, jurisdiction to apply for a wiretap order un-
der the Oklahoma wiretap statute vests “in the place
where the contents of the communication are first heard
by law enforcement officials.” Tavarez, 40 F.3d at 1138.
Because the intercepted communications were first heard
by law enforcement officials in District 21, the district
attorney for District 21 had authority to apply for the
order. Thus, the district court did not err in rejecting
Defendants’ jurisdictional challenge to the wiretap order.°
B. Requisite Necessity for Interception
Defendant Ratliff contends the affidavit for wiretap
authorization contained an insufficient showing that the
wiretap was necessary for agents to determine the nature
® We deny Defendant Chaplin’s ‘Motion to Certify a Question of
State Law” to the Oklahoma Court of Criminal Appeals regarding
the interpretation of the Oklahoma Security of Communications
Act. See, e.g., Anaconda Minerals Co. v. Stoller Chem. Co., 990
F.2d 1175, 1178 (10th Cir. 1993) (declining to certify a question
of state law where prior panel had decided the issue).
lla
and scope of the criminal activity in question. Specifi-
cally, Defendant contends that the affidavit failed to in-
dicate that normal investigative techniques were attempted
and failed prior to resort to a wiretap.
“*A wiretap authorization order is presumed proper,’
and the Defendants carry the burden of overcoming this
presumption.” United States v. Mondragon, 52 F.3d 291,
292 (10th Cir. 1995) (quoting United States v. Nunez,
877 F.2d 1470, 1472 (10th Cir.), cert. denied, 493
U.S. 981 (1989)). We review de novo whether the
order complies with the necessity requirement. /d.
In the instant case, the wiretap order was issued pur-
suant to the Oklahoma wiretap statute. Okla. Stat. Ann.
tit. 13, § 176.9. The provisions of the Oklahoma wiretap
Statute are virtually identical to the federal wiretap stat-
ute. Compare Okla. Stat. Ann. tit. 13, § 176.9 with 18
U.S.C. § 2518(c). Under the Oklahoma statute, each
application for a wiretap must include “[a] full and
complete statement as to whether or not other investiga-
tive procedures have been tried and failed or why they
reasonably appear to be either unlikely to succeed if tried
or are too dangerous.” Okla. Stat. Ann. tit. 13, § 176.9
(A)(3); see also 18 US.C. §2518(1)(c). This is
known as the necessity requirement. See Mondragon, 52
F.3d at 293. In addition, the judge issuing the order
must make a finding that “[njormal investigative proce-
dures have been tried and have failed or reasonably ap-
pear to be either unlikely to succeed if tried or are too
dangerous.” Okla. Stat. Ann. .tit. 13, § 176.9(C)(3);
see also 18 U.S.C. § 2518(3)(C). The purpose of these
requirements is to ensure that the relatively intrusive de-
vice of wiretapping “is not resorted to in situations where
traditional investigative techniques would suffice to ex-
pose the crime.” United States v. Kahn, 415 U.S. 143,
153 n.12 (1974).
In examining necessity challenges to wiretap orders,
we have repeatedly held that law enforcement officials are
12a
not required “to exhaust all other conceivable investiga-
tive procedures before resorting to wiretapping.” United
States v. Apodaca, 820 F.2d 348, 350 (10th Cir.), cert.
denied, 484 U.S. 903 (1987); accord United States v.
Page 808 F.2d 723, 729 (10th Cir.) (“[A] wiretap au-
thorization can be issued even if every possible means of
investigation has not been tried.”), cert. denied, 482 U.S.
918 (1987). Consequently, we have upheld applications
for wiretap orders where the application indicated: (1)
several investigatory methods had been utilized prior to
resort to wiretapping, see, e.g., Page, 808 F.2d at 729;
(2) normal investigative techniques had been frustrated
“by various problems local police were unable to over-
come,” United States v. Armendariz, 922 F.2d 602, 607
(10th Cir. 1990), cert. denied, 502 U.S. 823 (1991);
(3) increased visual surveilalnce would have increased
the possibility of detection, see Apodaca, 820 F.2d at
350; and (4) potential witnesses were unwilling to testify
in court because of fear of reprisal, United States v.
Smaldone, 583 F.2d 1129, 1133 (10th Cir. 1978), cert.
denied, 439 U.S. 1073 (1979).
In the instant case, the application for a wiretap order
set forth a full and complete statement as to the investiga-
tive techniques and procedures which had been utilized
prior to resort to a wiretap. See Vol. 1, tab 52, ex. B.
Moreover, the state court issuing the order found that
“{njormal investigative procedures have been tried” and
have been unsuccessful. See Vol. 1, tab 32, ex. C. We
therefore conclude there was a sufficient explanation indi-
cating that a wiretap was necessary. Thus, the district
court did not err in rejecting Defendant's necessity
challenge.
C. Minimization
Defendant Ratliff also contends that the intercepted
calls were not minimized in violation of the Oklahoma
wiretap statute. We conclude Defendant has failed to
properly present this issue for appellate review. Fed. R.
13a
App. P. 28(a)(5) states: “The brief of the appellant
shall contain... an argument. . .. The argument shall
contain the contentions of the appellant with respect to
the issues presented, and the reasons therefor, with cita-
tions to the authorities, statutes and parts of the record
relied on.” In enforcing this rule, we have held that “[ilt
is insufficient merely to state in one’s brief that one is
appealing an adverse ruling below without advancing rea-
soned argument as to the grounds for appeal.” American
Airlines v. Christensen, 967 F.2d 410, 415 n.8 (10th
Cir. 1992).
In the instant case, Defendant fails to support his mini-
mization issue with any reasoned argument or citations
to the record. Indeed, Defendant has made no attempt
to demonstrate how minimization efforts were improper
other than a conclusory statement that “[t]here was not
minimization of the telephone calls monitored.” Brief of
Aplt. Ratliff at 19. This isolated sentence is insufficient
to adequately contest his conviction on this ground on
appeal. Consequently, we do not address Defendant's
minimization argument.
Ill. Sufficiency of the Evidence and Variance
Defendant Chaplin contends the district court erred in
denying his motion for judgment of acquittal because the
evidence was insufficient to support his conspiracy con-
viction. Alternatively, Chaplin joins his codefendants in
arguing that there was a fatal variance between the in-
dictment, which alleged a single conspiracy, and the gov-
ernment’s proof at trial, which established the existence
of multiple conspiracies. We address each argument in
turn.
A. Sufficiency of the Evidence
Chaplin contends the evidence was insufficient to prove
he knowingly agreed to join the conspiracy with his co-
defendants to distribute cocaine. Specifically, Chaplin
contends the evidence fails to establish direct transactional
l4a
links, or even acquaintanceship, between him and his co-
defendants, In reviewing a conviction for sufficiency of
the evidence, we examine the entire record in the light
most favorable to the government, and determine whether
the direct and circumstantial evidence is such that any rea-
sonable jury could find the defendant guilty beyond a rea-
sonable doubt. United States v. Pedraza, 27 F.3d 1515,
1524 (10th Cir.), cert. denied, 115 S. Ct. 347 (1994).
In order to prove Chaplin was guilty of conspiracy with
his codefendants, the government was required to prove:
“*(1) agreement with another person to violate the law;
(2) knowledge of the essential objectives of the con-
spiracy; (3) knowing and voluntary involvement; and
(4) interdependence among the alleged coconspirators.’ ”
Id. (quoting United States v. Johnson, 12 F.3d 1540,
1545 (10th Cir. 1993)). “To establish that [Chaplin]
agreed to participate in the conspiracy, the [g]overnment’s
evidence must show a unity of purpose or a common
design and understanding with coconspirators to accom-
plish one or more of the objects of the conspiracy.”
United States v. Angulo-Lopez, 7 F.3d !506, 1510 (10th
Cir, 1993) (quotation omitted), cert. denied, 114 S. Ct.
1563 (1994). “[T]he requisite agreement to act in con-
cert need not result in any . . . formal [hierarchical]
structure.” United States v. Banks, 10 F.3d 1044, 1054
(4th Cir. 1993), cert. denied, 114 S. Ct. 1850 (1994).
In the instant case, the evidence was suflicient to show
“a unity of purpose” among Defendants. Angulo-Lopez,
7 F.3d at 1510. The evidence at trial indicated that J.
Grist or his trucking company employees would period-
ically travel to Houston to purchase cocaine, and divide
the cocaine among the defendants upon return to Tulsa.
In order to effectuate these purchases, Chaplin pooled his
money into a common fund with his codefendants so that
J. Grist could make large purchases of cocaine at a favor-
7 Defendants strenuously contend that there was no evidence
concerning the existence of any pooling arrangement or their
15a
Chaplin also obtained better quality cocaine. This evi-
dence demonstrates an ongoing course of conduct between
Defendants in order to achieve a common goal or pur-
pose: to profit from the illicit distribution of cocaine.
See United States v. Fox, 902 F.2d 1508, 1515 (10th
Cir.), cert. denied, 498 U.S. 874 (1990); United States
v. Dickey, 736 F.2d 571, 582 (10th Cir.) (“There was
sufficient evidence to show that the conspiracy was com-
prise of a common goal between all participants, i.e., to
possess and distribute drugs . . . for profit.”), cert. denied,
469 U.S. 876 (1984).
Chaplin contends, however, the element of interdepend-
ence is lacking in the instant case because “there is no
evidence that any of his codefendants knew [him], asso-
ciated with [him], or knew that [he] was also purchasing
cocaine.” Brief of Aplit. Chaplin at 12. Rather, Chaplin
contends that the only connection between him and his
codefendants was their dependence on J. Grist as the
common. central drug supplier. /d. at 13. Thus, Chaplin
argues that “[t]o find ‘interdependence’ among [him] and
his codefendants under these circumstances would render
the word meaningless.” Reply Brief of Aplt. Chaplin at
17. We disagree.
knowledge of such arrangement. Rather, Defendants contend that
the evidence merely shows that “[J.] Grist got money from various
persons buying from him and used the money to buy drugs from
his own upstream supplier for redistribution to the buyers down-
stream, including the defendants.”
We disagree with Defendants’ characterization of the record.
The record in the instant case is replete with instances showing
Defendants’ knowledge of a pooling arrangement with J. Grist.
See, e.g., Aplt. Addm. Tab. 6A, p.2 (Grist indicates to Chaplin
that he cannot make a drug purchase until he obtains enough funds
because “2 or 3 guys kinda got behind—an... it... kinda put me
in a crunch.”); id. Tab 10A, p.2 (Grist indicates to Chaplin that
he has been unable to make a large purchase yet because “[i|t
takes a pretty good amount to get very many wheels [kilograms
of cocaine}.”); Vol. X at 506 (indicating Edwards’ knowledge
that he had contributed to a $90;000 common fund that had been
confiscated by police when one of Grists’ couriers was arrested).
l6a
The mere presence of a central figure does not neces-
sarily establish interdependence in a single conspiracy.
United States v. Roberts, 14 F.3d 502, 511 (10th Cir.
1993). Rather, interdependence exists where “each co-
conspirators’ activities ‘constituted essential and integral
steps toward the realization of a common, illicit goal.’ ”
Fox, 902 F.2d at 1514 (quoting United States v. Brewer,
630 F.2d 795, 799 (10th Cir. 1980)); see also Evans,
970 F.2d at 671 (“What is needed is proof that [the
conspirators] intended to act together for their shared mu-
tual benefit within the scope of the consipracy charged.” ).
Moreover, in order to establish interdependence, the gov-
ernment need not show that the “[c]Joconspirators .. .
know the identities or details of each scheme or have
connections with all other members of the conspiracy.”
Roberts, 14 F.3d at 511. Rather, where large quantities
of drugs are being distributed through a key distributor,
“each major buyer may be presumed to know that he is
part of a wide-ranging venture, the success of which de-
pends on performance by others whose identity he may
not even know.” Dickey, 736 F.2d at 581.
We conclude the government presented ample evidence
establishing the element of interdependence in the instant
case. The scheme for distributing cocaine depended upon
the successful achievement of several integrated steps, in-
cluding transport of numerous purchases of cocaine from
Houston, collection of money from Defendants, pooling
of money in order to purchase large quantities of cocaine,
and delivery of the cocaine to Defendants in Oklahoma
for resale to cocaine consumers. See Fox, 902 F.2d at
1515 (finding requisite interdependence where defendants
pooled funds and made several wholesale purchases of
cocaine). Moreover, the fact that Chaplin’s coconspira-
tors were allegedly unaware of his identity or that he was
purchasing cocaine is irrelevant. See Roberts, 14 F.3d at
511. By participating in purchases of large quantities of
drugs, all Defendants necessarily had knowledge of par-
ticipation in a greater scheme. See Dickey, 736 F.2d at
17a
581. Accordingly, we find sufficient evidence from which
any reasonable jury could find that Chaplin knowingly
conspired with his codefendants to distribute cocaine.
Thus, the district court properly denied Chaplin’s motion
for judgment of acquittal.
B. Variance and Multiple Conspiracy Jury Instruction
Defendants contends that there was a fatal variance be-
tween the indictment, which alleged a single conspiracy,
and the government's proof at trial, which established the
existence of multiple conspiracies. Specifically, Defend-
ants contend that Chaplin’s drug activities constituted a
separate, independent conspiracy to those of his codefend-
ants and that evidence of this separate conspiracy created
a prejudicial “spillover”. Additionally, Defendants con-
tend the district court erred by failing to give a multiple
conspiracy jury instruction.
l.
“A variance arises when the evidence adduced at trial
establishes facts different from those alleged in an indict-
ment.” Dunn v. United States, 442 U.S. 100, 105
(1979). However, a variance is not fatal to the govern-
ment’s case unless the variance affects “the substantial
rights of the accused.” Berger v. United States, 295 U.S.
78, 82 (1935). Accordingly, where a single conspiracy
is charged in the indictment, and the government proves
only multiple conspiracies, a defendant who suffers sub-
stantial prejudice must have his conviction reversed.
Kotteakos v. United States, 328 U.S. 750, 773-74 (1946).
Whether a single conspiracy existed is a fact question
for the jury and we review the jury’s decision in a light
most favorable to the government. United States v.
Powell, 982 F.2d 1422, 1431 (10th Cir. 1992), cert.
denied, 113 S. Ct. 2361 (1993). In determining whether
a single conspiracy existed, a focal point of the analysis
is whether the alleged coconspirators’ conduct exhibited
interdependence. United States v. Daily, 921 F.2d 994,
18a
1007 (10th Cir. 1990), cert. denied, 502 U.S. 952
(1991). Interdependence exists where “each coconspira-
tors activities ‘constituted essential and integral steps to-
ward the realization of a common, illicit goal.”” Fox,
902 F.2d at 1514 (quoting United States v. Brewer, 630
F.2d 795, 799 (10th Cir. 1980) ).
Defendants assert the evidence failed to show a single
conspiracy because the evidence fails to show any con-
nection between Chaplin and the other defendants.
Rather, Defendants contend that the evidence essentially
consists of testimony showing a number of discrete buy-
sell transactions by the various codefendants from J. Grist,
the supplier of the cocaine.
This argument “considerably shades and understates the
relevant evidence of [Defendants’] conduct” in the instant
case. Banks, 10 F.3d at 1055. As we have already
stated, there was ample evidence demonstrating interde-
pendence among Defendants in their scheme to purchase,
transport, and deliver cocaine from Houston to Tulsa.
See supra part III.A. Throughout this scheme, each De-
fendant “ ‘demonstrated a substantial level of commitment
to the conspiracy, [for example] by engaging in a con-
sistent series of smaller transactions’ that furthered its
ultimate object of supplying the consumer demand of the
market.” Jd. at 1054 (quoting United States v. Edwards,
945 F.2d 1387, 1393 (7th Cir. 1991)). Accordingly, we
conclude the evidence supports the jury’s conclusion that
Defendants were members of a single conspiracy as
charged in the indictment. Thus, no variance existed.
2.
Even assuming a variance between the indictment and
the proof at trial, Defendants are not entitled to relief
unless the variance affected their substantial rights. See
Powell, 982 F.2d at 1432 (addressing substantial rights
prong even though court concluded no variance existed);
United States v. Irwin, 654 F.2d 671. 683 (10th Cir.
19a
1981) (same). Defendants Edwards, Lawrence. and Rat-
liff contend that evidence of Chaplin’s alleged separate
conspiracy affected their substantial rights by creating a
“spillover” effect which forced them “to acquit [them-
selves] of Chaplin’s actions.”
A defendant's substantial rights are affected in the con-
text of a variance when the jury determines a defendant’s
guilt by relying on evidence adduced against coconspira-
tors who were involved in separate conspiracies. Kottea-
kos, 328 U.S. at 774. In evaluating whether a potential
prejudicial spillover impermissibly affected the fairness of
a trial in which a variance occurred, we have considered
the following factors: (1) whether the proliferation of
separate conspiracies in the case affected the jury’s ability
to segregate each defendant’s individual actions and par-
ticipation; (2) whether the variance caused confusion
among the jurors as to the limited use of certain evidence;
and (3) the strength of the evidence underlying the con-
viction. Powell, 982 F.2d at 1432.
Applying these factors to the instant case, we conclude
Defendants’ substantial rights were not affected by any
alleged variance. The facts of this case were not so intri-
cate as to render the jury unable to segregate the evidence
associated with each defendant’s individual actions, where
there were only four defendants and alleged proof of two
conspiracies. See Berger, 295 U.S. at 83 (upholding con-
viction for participation in a single conspiracy where
there were only five defendants and two conspiracies
proven at trial). Moreover, the district court’s jury in-
structions minimized any possible prejudice. The court’s
instructions advised the jury that “[iJt is your duty to
give separate and individual consideration to the evidence
as it relates to each individual defendant [and] leave]
out of consideration entirely any evidence admitted solely
against some other defendant or defendants.” See Vol. I,
Tab 96, p. 6. Finally, ample evidence established a single
conspiracy. See supra part III.B.1. We therefore conclude
20a
that even assuming a variance existed, Defendants’ sub-
stantial rights were not affected.
3.
Defendants next contend the district court erred in
failing to give a multiple conspiracy jury instruction. When
reviewing a challenge to jury instructions, we consider
the instructions given as a whole to determine whether
the instructions adequately state the law and provide the
jury with an ample understanding of the issues and con-
trolling principles of law. Brown v. Wal-Mart Stores, Inc.,
11 F.3d 1559, 1564 (10th Cir. 1993). We review the
district court’s exclusion of a jury instruction for an abuse
of discretion. /d.
“A multiple conspiracy charge instructs the jury to
acquit if it finds that the defendant was not a member of
the indicted conspiracy but rather was involved in another
conspiracy.” United States v. Cavin, 39 F.3d 1299, 1310
(5th Cir. 1994). In Evans, we held that a district court’s
failure to give a multiple conspiracy jury instruction is not
reversible error as long as the instructions informed the
jury that “‘the government had the burden of proving
beyond a reasonable doubt the [single] conspiracy as
alleged, and that the evidence should be considered sep-
arately as to each individual defendant.’” Evans, 970
F.2d at 675 (quoting United States v. Watson, 594 F.2d
1330, 1340 (10th Cir.), cert. denied, 444 U.S. 840
(1979)). In the instant case, the jury was so instructed.*
8 The district court gave the following pertinent instructions
which are virtually identical to those we approved in Evans:
It is your duty to give separate and individual considera-
tion to the evidence as it relates to each individual defendant.
When you do so, you should analyze what the evidence in the
case shows with respect to that individual defendant leaving
out of consideration entirely any evidence admtited solely
against some other defendant or defendants.
[ Continued }
2la
Accordingly, we conclude the district court did not abuse
its discretion in declining to instruct the jury on multiple
conspiracies.”
IV. Severance Motion
Defendant Ratliff contends the district court erred in
denying his motion for severance because the district
court’s decision to try him jointly with his codefendants
prejudiced him." Specifically, Defendant claims that evi-
dence admitted against his codefendants in the form of
statements made by Edwards to a police officer and a
8 [Continued |}
Unless otherwise stated, each defendant is entitled to have
his case determined from evidence as to his own acts, state-
ments, and conduct and any other evidence in the case which
may be applicable to him.
Mere similarity of conduct among various persons and the
fact they may have associated with each other, and may have
assembled together and discussed common aims and interests,
does not necessarily establish proof of the existence of a con-
spiracy.
See Vol. I, Tab 96, pp. 6, 18.
® Defendant Lawrence concedes the district court’s instructions
satisfied the standards of Evans and Watson. See, e.g., Brief of
Aplt. Lawrence at 19 (“These instructions appear to satisfy the
standard set by this Court, in Evans and Watson.”). However,
Lawrence contends that we should revisit this issue and follow
those circuits which have concluded that a defendant is entitled
to a multiple conspiracy instruction as a theory of defense when
the facts warrant such a defense. See Cavin, 39 F.3d at 1310;
United States v. Oreto, 37 F.3d 739, 748 (1st Cir. 1994), cert.
denied, 115 S. Ct. 1161 (1995); United States v. Kennedy, 32 F.3d
876, 884 (4th Cir. 1994), cert. denied, 115 S. Ct. 1995); United
States v. Dennis, 917 F.2d 1031, 1033 (7th Cir. 1990); United
States v. Cambindo Valencia, 609 F.2d 603, 625 (2d Cir. 1979),
cert. denied, 446 U.S. 940 (1980). In Evans, we specificaily re-
jected such an approach, see Evans, 970 F.2d at 674-75, and we
must follow that decision. See Brittain, 41 F.3d at 1415.
10 Defendants Lawrence and Chaplin also adopt this argument
by reference in their brief.
22a
videotape of the November 3, 1993 cocaine sale between
the undercover agent and Chaplin, had a negative “spill-
over” effect on the jury and prevented the jury from
making a reliable judgment about his guilt or innocence.
We disagree.
“{I]n a conspiracy trial it is preferred that persons
charged together be tried together.” United States v. Scott,
37 F.3d 1564, 1579 (10th Cir. 1994), cert. denied, 115
S. Ct. 773 (1995). We review a district court’s denial of
a severance motion for an abuse of discretion, United
States v. Williams, 45 F.3d 1481, 1483 (10th Cir. 1995),
and “will not reverse the lower court’s decision absent a
strong showing of prejudice.” United States v. Wright,
932 F.2d 868, 876 (10th Cir.), cert. denied, 112 S. Ct.
428, 450 (1991). Prejudice occurs when “ ‘there is a seri-
ous risk that a joint trial [will] compromise a specific
trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or inno-
cence.” Williams, 45 F.3d at 1484 (quoting Zafiro v.
United States, 113 S. Ct. 933 (1993)). “Neither a mere
allegation that defendant would have a better chance of
acquittal in a separate trial, nor a complaint of the ‘spill-
over effect’ [of damaging evidence] is sufficient to war-
rant severance.” United States v. Levine, 983 F.2d 165,
167 (10th Cir. 1992) (quotations omitted).
We conclude Defendant has failed to show the requisite
prejudice warranting severance. As we have stated, the
facts of this case were not so intricate as to render the
jury unable to segergate the evidence associated with each
defendant’s individual actions. See supra part III.B.2.
Moreover, the district court minimized any possible prej-
udice by instructing the jury that “[i]t is your duty to
give separate and individual consideration to the evidence
as it relates to each individual defendant [and] leav{[e]
out of consideration entirely any evidence admitted solely
against some other defendant or defendants.” See Vol. I,
Tab 96, p. 6; Zafiiro, 113 S. Ct. at 938 (“[L]imiting in-
eer eee . aa
23a
structions . . . often will suffice to cure any risk of preju-
dice.”). Under these circumstances, we conclude the dis-
trict court did not abuse its discretion in denying De-
fendant’s motion to sever.
V. 404(b) Evidence
Defendants Edwards and Lawrence contend the district
court erred in admitting evidence of prior bad acts pur-
suant to Fed. R. Evid. 404(b). We review the district
court’s decision to admit evidence under Rule 404(b)
for an abuse of discretion. United States v. Patterson, 20
F.3d 809, 812 (10th Cir.), cert. denied, 115 S. Ct. 128
(1994).
During trial, the government moved to admit excerpts
from testimony given by Edwards and Lawrence as gov-
ernment witnesses at an unrelated 1991 cocaine conspiracy
trial in the Northern District of Oklahoma. The excerpts
included testimony in which Edwards and Lawrence testi-
fied that they had known each other for at least five or
six years and became involved in the cocaine business in
1986. Edwards testified that he had purchased two to
three kilograms of cocaine from Lawrence in 1986 and
began purchasing cocaine in Los Angeles and Houston for
resale in Tulsa, in 1988. Lawrence testified that he
and Edwards had made two or three trips to Houston to
purchase cocaine, and would place the cocaine inside a
spare tire before returning to Tulsa.
The government offered the prior testimony in order
to rebut Defendants’ contention that they were not in-
volved in a cocaine conspiracy with each other and with
J. Grist. Thus, under Rule 404(b), the government con-
tended that the prior testimony showed knowledge of the
charged conspiracy and an absence of mistake. Defend-
ants’ objected to the admission of the testimony contend-
ing that even if the evidence was admitted for a proper
purpose under Rule 404(b), the evidence was more
24a
prejudicial than probative and should be excluded. The
district court overruled the objection stating that “[i]t’s
the view of the Court that such evidence of prior state-
ments, activities would . . . go to the issues of motive,
knowledge, opportunity, and absence of mistake or acci-
dent, and would therefore be apropriate.” '' Vol. XI at
804. The court therefore admitted the prior testimony.
Defendants contend the district court improperly ad-
mitted the prior testimony under Rule 404(b) because
the evidence related to events which occurred in 1988
and was thus too remote in time to the events charged in
the instant case. Consequently, Defendants contend that
the probative value of the evidence was substantially out-
weighed by its prejudicial impact.”
Evidence of a defendant’s prior crimes, wrongs, or acts
is “admissible only for limited purposes and only when
various prerequisites are satisfied.” United States v. Robin-
1 Defendant Lawrence appears to suggest that the district court
erred in admitting the prior testimony because it failed to articu-
late the specific purpose for which the evidence was admitted, but
instead merely restated the language of Rule 404(b). We disagree.
We have held that “a broad statement merely invoking or re-
stating Rule 404(b) will not suffice” to identify the specific purpose
for which a district court admitted Rule 404(b) evidence. United
States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985), cert.
denied, 474 U.S. 1081 (1986). However, even if the district court
fails to specifically articulate the basis for admission, the error
is harmless as long as a proper purpose is apparent from the
record. United States v. Record, 873 F.2d 1363, 1873 (10th Cir.
1989). As our analysis indicates, the specific purpose for admitting
the prior testimony in the instant case is apparent from the record.
12 Fed. R. Evid. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident.
25a
son, 978 F.2d 1554, 1558 (10th Cir. 1992), cert. denied,
113 S. Ct. 1855 (1993). Rule 404(b) requires that
(1) the evidence must be offered for a proper pur-
pose; (2) the evidence must be relevant; (3) the
trial court must make a Rule 403 determination of
whether the probative value of the similar acts is
substantially outweighed by its potential for unfair
prejudice; and (4) pursuant to Fed. R. Evid. 105,
the trial court shall, upon request, instruct the jury
that the evidence of similar acts is to be considered
only for the proper purpose for which it was ad-
mitted.
United States v. Johnson, 42 F.3d 1312, 1315 (10th Cir.
1994) (quotation omitted). “ “We have previously recog-
nized the highly probative value of uncharged prior acts
evidence to show motive, intent, knowledge or plan in
the context of a conspiracy prosecution.’” United States
v. Easter, 981 F.2d 1549, 1554 (10th Cir. 1992), quot-
ing United States v. Record, 873 F.2d 1363, 1375 (10th
Cir. 1989)), cert. denied, 113 S. Ct. 2448 (1993). This
is particularly true where the uncharged acts are similar
in method to the charged conspiracy and sufficiently close
in time. Jd.
Here, Defendants’ prior acts involved their joint efforts
regarding distribution of cocaine purchased in and trans-
ported from Houston, Texas—a similar scheme with which
Defendants were eventually charged—and were sufficiently
close in time to the charged conduct. See United States
v. Wint, 974 F.2d 961, 967 (8th Cir. 1992) (narcotics
offense committed five years earlier was “reasonably close
in time” to charged offense), cert. denied, 113 S. Ct.
1001 (1993); United States v. Drew, 894 F.2d 965, 970
(8th Cir.) (evidence of defendant’s participation in run-
ning drug house three years earlier to offense in question
probative of issues of intent, knowledge, and plan), cert.
denied, 494 U.S. 1089 (1990). In this context. the prior
acts evidence was highly relevant to show Defendants’
i
26a
knowledge of the plan or scheme to possess and dis-
tribute cocaine. Furthermore, the prior acts evidence re-
butted Defendants’ claim that they were not involved in
a cocaine conspiracy with each other. See Easter, 981
F.2d at 1554 (upholding the admission of prior acts evi-
dence under similar circumstances).
In addition, the probative value of the evidence was
not substantially outweighed by its potential for unfair
prejudice. Although the district court did not explicitly
rule on the prejudicial impact of the evidence, the court
admitted the evidence following Defendants’ objections
based upon prejudice. Thus, “we can assume the judge
weighed the prejudicial impact against the probative value
of the evidence”, Patterson, 20 F.3d at 814, before mak-
ing the final determination to admit the prior testimony.
Because “[w]e are required to give the trial court ‘sub-
stantial deference’ in Rule 403 rulings”, id. (quoting
Easter, 981 F.2d at 1554), we will not disturb the dis-
trict court’s implicit determination regarding the proba-
tive value of the evidence. See id. Moreover, the district
court’s jury instructions included an instruction limiting
the use of the prior acts evidence. Under these circum-
stances, we conclude the district court did not abuse its
discretion in admitting the prior acts evidence pursuant to
Rule 404(b).
VI. Defendant Edwards’ Pro Se Issues
A. Composition of Jury Venire
Defendant Edwards contends the district court erred
because it “allow[ed] the jury selection process to con-
tinue after discovery of an impermissible disparity con-
cerning underrepresentation of a fair cross-section of
African-Americans” on the jury venire. According to
Defendant Edwards, “[t]he seventy person jury venire
presented for jury selection in this matter included only
one non-caucasian, leaving a strong inference [of] .. .
impropriety.” Specifically, Defendant Edwards argues
ee
27a
that “it is beyond belief that in Tulsa County, where a
9.8% of African-Americans reside, that zero-percent
African-Americans are summoned for the jury venire.” ™
Defendant Edwards contends that we remand for the dis-
trict court to conduct an evidentiary hearing regarding the
alleged systematic exclusion of African-American venire
persons.
“A criminal defendant has a Sixth Amendment right
to a jury pool comprised of a fair cross section of the
community.” United States v. Robertson, 45 F.3d 1423,
1439 (10th Cir.) (citing Duren v. Missouri, 439 U.S.
357, 358-59 (1979)), cert. denied, 115 S. Ct. 2258, 115
S. Ct. 2259 (1995). To establish a prima facie violation
of the Sixth Amendment-based fair-cross-section require-
ment,
the defendant must show (1) that the group alleged
to be excluded is a “distinctive” group in the com-
munity; (2) that the representation of this group in
venires from which juries are seleced is not fair and
reasonable in relation to the number of such persons
in the community; and (3) that this underrepresenta-
tion is due to systematic exclusion of the group in
the jury-selection process.
Duren, 439 U.S. at 364; see also United States v. Yazzie,
660 F.2d 422, 425-26 (10th Cir. 1981), cert. denied,
455 U.S. 923 (1982).
We conclude Defendant Edwards has failed to estab-
lish a prima facie violation of the fair-cross-section re-
quirement. Although Defendant Edwards relies on sta-
tistics outside the record in an attempt to show that the
representation of African-Americans is “not fair and rea-
sonable in relation to the number of such persons in the
community,” Duren, 439 U.S. at 364, Defendant Edwards
13 In his reply brief, Defendant Edwards contends that “African-
Americans comprise approximately 8.3% of the population in Tulsa
County.”
28a
has failed to show that a “systematic exclusion” of Afri-
can-Americans occurred. By chance, the venire had one
non-caucasion. In the absence of a showing of a “syste-
matic exclusion” of African-Americans, Defendant Ed-
wards has failed to demonstrate a prima facie violation
of the fair-cross-section requirement. See Duren, 439
U.S. at 364; Robertson, 45 F.3d at 1439. Consequently,
we reject Defendant Edward’s request to remand to the
district court for an evidentiary hearing.
B. Fed. R. Crim. P. 15
Defendant Edwards next argues that the district court
erred in denying his motion to depose H. Grist pursuant
to Fed. R. Crim. P. 15. We disagree.
Fed. R. Crim. P. 15 governs depositions in criminal
proceedings. Rule 15(a) provides in relevant part:
(a) When Taken. Whenever due to exceptional
circumstances of the case it is in the interest of
justice that the testimony of a prospective witness of
a party be taken and preserved for use at trial, the
court may upon motion of such party and notice to
the parties order that testimony of such witness be
taken by deposition ....
Fed. R. Crim. P. 15(a). Rule 15 “does not contemplate
use of depositions of adverse witnesses as discovery tools
in criminal cases.” United States v. Carrigan, 804 F.2d
599, 602 (10th Cir. 1986). Instead, the “exceptional
circumstances” standard of Rule 15(a) requires that the
district court exercise “its discretion in determining
whether a deposition should be taken under the particular
circumstances presented.” United States v. Fuentes-
Galindo, 929 F.2d 1507, 1509 (10th Cir. 1991). We
review the district court’s decision regarding the taking of
a deposition under Rule 15(a) for an abuse of discretion.
Id.
Prior to trial in the instant case, the government in-
formed Defendants that it would not call H. Grist as a
Oe ne eee oe eee
29a
witness. H. Grist, the father of J. Grist, had acted as the
cooperating coconspirator with the government in the
November 3, 1993 drug transactions at the Roadway
Motel. Although the government did not intend to call
H. Grist as a witness, the government intended to intro-
duce videotape at trial of the drug transactions wherein
H. Grist appeared. After Defendants learned the govern-
ment did not intend to call H. Grist as a witness, De-
fendants’ investigator personally interviewed H. Grist sev-
eral weeks before trial. Although the investigator inter-
viewed H. Grist, neither Defendant Edwards nor Lawrence
subpoenaed H. Grist as a witness.
On April 29, 1994, several days into the trial, Defend-
ants Edwards and Lawrence filed a motion pursuant to
Fed. R. Crim. P. 15(a) to take the deposition of H.
Grist. Defendants Edwards and Lawrence argued that the
deposition was necessary because H. Grist would provide
exculpatory testimony. Specifically, Defendant Edwards
contended that H. Grist would state that Defendant Ed-
wards had said during the November 3, 1993 transaction
at the Roadway Motel in Tulsa that he was no longer
in the drug business. Further, Defendant Edwards argued
that H. Grist would testify that Defendant Edwards did
not go to the Roadway Motel to purchase cocaine but to
visit Grist, a family friend. Defendant Lawrence argued
that H. Grist would state that he did not know Defendant
Lawrence before the November 3, 1993 incident, thereby
negating the inference that Lawrence and Grist knew one
another as coconspirators. Because H. Grist was suffering
from a heart condition and in poor health, his doctor
recommended that he not be deposed.
The district court first observed that H. Grist’s doctor
had advised against a deposition because of the fragility
of his health. The district court also established that
H. Grist’s competency was in question because he had
been subject to oxygen deprivation. Finally, the district
court stated that the allegedly exculpatory information
H. Grist would provide in a deposition “is not that im-
30a
portant.” Consequently, the district court denied the mo-
tion to depose H. Grist pursuant to Rule 15, Vol. [X at
361-62. Under the particular circumstances of this case
we cannot say the district court abused its discretion in
denying Defendants’ motion to depose H. Grist pursuant
to Fed. R. Crim. P. 15(a). See Fuentes-Galindo, 929
F.2d at 1509. Consequently, we conclude the district
court did not err in denying Defendants’ motion to depose
H. Grist.
VII. Sentencing Issues
A. Quantity of Cocaine
Defendants contend the district court erroneously cal-
culated the quantity of cocaine used to determine their
base offense levels. Specifically, Defendants contend their
sentences were based upon a greater amount of cocaine
than was reasonably foreseeable as part of the conspiracy.
We review a district court’s drug quantity calculation
under a clearly erroneous standard “and we will not dis-
turb it unless it has no support in the record, or unless
after reviewing all the evidence we are firmly convinced
that an error has been made.” United States v. Clark, 57
F.3d 973, 977 (10th Cir. 1995) (quoting United States
v. Cook, 949 F.2d 289, 296 (10th Cir. 1991)).
In a drug conspiracy case, a defendant’s sentence is
not based merely upon “ ‘the amount with which the de-
fendant dealt personally.” Angulo-Lopez, 7 F.3d at 1512
(quoting United States v. Savage, 891 F.2d 145, 151 (7th
Cir. 1989)). Rather, “[a] defendant . .. is sentenced
based on the total amount of drugs involved as if the
object of the conspiracy had been completed, provided
that the drug quantities were reasonably foreseeable to the
defendant and within the scope of his conspiratorial agree-
ment.” United States v. Robertson, 45 F.3d 1423, 1445
(10th Cir.) (citation omitted), cert. denied, 115 S. Ct.
2258 (1995). The government must prove the quantity
of drugs for sentencing purposes by a preponderance of
3la
the evidence. United States v. Richards, 27 F.3d 465,
468 (10th Cir. 1994). Evidence used to establish the
drug quantities “must possess a ‘minimum indicia of re-
liability.’ United States v. Reves, 40 F.3d 1148, 1150
(10th Cir. 1994) (quoting United States v. Coleman,
947 F.2d 1424, 1428 (10th Cir. 1991), cert. denied, 112
S. Ct. 1590 (1992) ).
1. Defendants Chaplin, Ratliff and Lawrence
The district court attributed a quantity of cocaine in
excess of fifteen kilograms to Defendants Chaplin, Ratliff,
and Lawrence, yielding a base offense level of thirty-four,
see U.S.S.G. § 2D1.1(c)(3) (providing for a base offense
level of thirty-four for an amount of “{a]t least 15 kg
but less than 50 kg of Cocaine”), and a guideline range
of 151-188 months. Defendants contend that in calculat-
ing this quantity, the district court improperly sentenced
them for drugs distributed independently by other mem-
bers of the conspiracy because the amounts were not rea-
sonably foreseeable. Excluding those amounts, Defendants
Chaplin, Ratliff, and Lawrence contend that less than
fifteen kilograms of cocaine are properly attributable to
them, thus yielding a base offense level of thirty-two, see
id. § 2D1.1(c)(4), and a guideline range of 121-151
months.
At sentencing, the district court conducted a compre-
hensive examination of the evidence and testimony pre-
sented at trial. Based upon the evidence and testimony
presented, the court determined that while the exact amount
was uncertain, the record supported a finding that an
excess of fifteen kilograms of cocaine were properly attrib-
utable to Chaplin. After careful review of the record, we
conclude the court’s finding was not clearly erroneous.
United States v. Chatman, 994 F.2d 1510, 1517 (10th
Cir.) (“We give due regard to the district court’s opor-
tunity to judge the credibility of witnesses on whose testi-
mony it relied.”), cert. denied, 114 S. Ct. 230 (1993).
32a
Accordingly, we conclude the district court did not err in
calculating the quantity of cocaine attributable to De-
fendants Chaplin, Ratliff, and Lawrence.
2. Defendant Edwards
The district court attributed an amount in excess of
fifteen kilograms of cocaine to Edwards in calculating a
base offense level of thirty-four. See U.S.S.G. § 2D1.1
(c)(3) (providing for a base offense level of thirty-four
for an amount of “[a]t least 15 kg but less than 50 kg
of Cocaine”). In calculating this quantity, Edwards con-
tends the district court should have excluded amounts dis-
tributed by Chaplin and those amounts distributed while
he was in federal custody on unrelated charges because
they were not reasonably foreseeable. We disagree.
“[A] critical factor in determining the proper sentence
is the degree of any given defendant’s involvement in the
conspiracy.” Evans, 970 F.2d at 679 (quotation omitted).
Here, the district court, reviewing the evidence and testi-
mony presented at trial, found that the quantities were
reasonably foreseeable and properly attributable to Ed-
wards because he organized and directed the distribution
scheme and continued “in the endeavors [of the con-
spiracy] during that period of incarceration.” Vol. XIV
at 985. Giving due deference to the district court’s factual
and credibility determinations, we conclude the court's
findings and calculations are not clearly erroneous, and
we will not disturb them. See, e.g., United States vy.
Gutierrez, 48 F.3d 1134, 1139 (10th Cir.) (rejecting
defendant’s argument that drugs distributed were not fore-
seeable, in light of defendant’s substantial involvement
in the conspiracy), cert. denied, 115 S. Ct. 2598 (1995):
Banks, 10 F.3d at 1057 (same).
33a
B. Organizer or Leader and Obstruction of Justice
Enhancements
1.
Defendant Edwards contends the district court erred by
imposing a four-level increase in his base offense level
because he “was an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(a). Edwards con-
tends the evidence was insufficient to support the district
court’s finding that he was an “organizer or leader.” Spe-
cifically, he contends that because he was incarcerated
during a large portion of the conspiracy, he could not have
been a leader or organizer. We review the district court’s
finding that a defendant was a leader or organizer for
clear error. Robertson, 45 F.3d at 1448.
A §3Bl1.1(a) enhancement “is an enhancement for
organizers or leaders, not for important or essential fig-
ures.” United States v. Torres, 53 F.3d 1129, 1142 (10th
Cir.) (quotations omitted), cert. denied, 115 S. Ct. 2599
(1995). Consequently, the gravamen of a § 3B1.1(a)
enhancement is control or organization: “ ‘the defendant
must have exercised some degree of control over others
involved in the commission of the offense or he must have
been responsible for organizing others for the purpose of
carrying out the crime.” Robertson, 45 F.3d at 1448
(quoting United States v. Reid, 911 F.2d 1456, 1464
(10th Cir. 1990).
In the instant case, the evidence presented at trial over-
whelmingly indicates that Edwards “exercised some degree
of control over others involved in... the offense or [was]
responsible for organizing others for the purpose of carry-
ing out the crime.” Jd. Edwards organized the conspiracy.
set up an elaborate courier system through use of Grist’s
trucking company, and introduced Grist to Tavarez—
the conspiracy’s major source of cocaine—in order to
34a
further the overall scheme of transporting cocaine from
Houston to Oklahoma. Moreover, contrary to Edwards’
contentions, the evidence indicates that he exercised con-
trol over various members of the conspiracy while he
was incarcerated. Consequently, we agree with the dis-
trict court’s observation that “there’s no doubt . . . that
the determination that [Edwards] was a leader is estab-
lished almost beyond refutation.” Vol. XIV at 985. Ac-
cordingly, we hold the district court did not err in en-
hancing Edwards’ base offense level due to his role as an
organizer or leader.
y
Finally, Edwards contends the district court erred by
enhancing his sentence by two levels for obstruction of
justice pursuant to U.S.S.G. § 3C1.1. This section pro-
vides for an enhancement “[i]f the defendant wilifully ob-
structed or impeded, or attempted to obstruct or impede,
the administration of justice during the investigation,
prosecution, or sentencing of the instant offense.” /d.
We review the district court’s factual determinations con-
cerning obstruction of justice for clear error. United
States v. Urbanek, 930 F.2d 1512, 1514 (10th Cir. 1991),
giving due deference to the district court’s ability to judge
the credibility of witnesses upon whose testimony it relied.
Chatman, 994 F.2d at 1517.
The district court based the obstruction of justice
enhancement upon testimony given by one of Edwards’
codefendants in a related case, Herbert Lewis. At trial,
Lewis testified that during a telephone conversation, Ed-
wards threatened him and instructed him to say as little
as possible if questioned by law enforcement agents about
the cocaine distribution conspiracy:
MR. OMEILIA: During that conversation that you
were having with him on the phone . . . did the
defendant [Edwards] talk to you about cooperating
with law enforcement?
35a
LEWIS: Well, he said—I asked him had he heard
anything about me, you know, and he said, not yet
but I’m pretty sure something will come up and if it
comes to a point that you've got to testify, if you
have to say anything about me, say the least possible
because if you don’t, then, remember I still got a
cloud over your heard [sic] and—
MR. OMEILIA: _ Did you respond to that?
LEWIS: What to say? And just say as least as
possible.
MR. OMEILIA: Did he tell you anything to say?
He told you what not to say.
LEWIS: Basically some of the things that he told
me to say was different from what I told the agents,
but the great—like the end of it, the end of it was
correct, but the beginning as far as how I got in-
volved in it, it was to be all put on Mr. [J.] Grist.
MR. OMEILIA: He told you to tell the agents
that?
LEWIS: Yes.
MR. OMEILIA: And did you tell the agents that?
LEWIS: Yes, I did.
MR. OMEILIA: Because you had been threatened?
LEWIS: I was scared.
MR. OMEILIA: All right. And did he tell you
to say anything about anybody else?
LEWIS: Yes. If you have to put it on anybody,
put it on Mr. Lawrence.
Vol. VIII at 213 (emphasis added). Edwards contends
that this evidence is insufficient to support an obstruction
of justice enhancement because it does not show that
“Edwards tried to get Lewis to make false statements.”
36a
Brief of Aplt. Edwards at 28. Consequently, Edwards
contends that “[t]elling Lewis to provide as little informa-
tion ‘as possible’ means nothing at all.” /d.
Defendant’s argument simply mischaracterizes the evi-
dence presented and ignores the applicable guidelines.
Contrary to Defendant’s assertion, an obstruction of jus-
tice enhancement does not apply only when a defendant
attempts to induce a witness to make false statements.
Rather, an enhancement is warranted if the defendant
“threaten[s], intimidat[es], or otherwise unlawfully in-
fluenc[es] a co-defendant, witness, or juror, directly or
indirectly, or attempt[s] to do so.” U.S.S.G. § 3C1.1 ap-
plication note 3(a). This is precisely what the district
court determined occurred here. Indeed, the court stated
that “there was a concerted effort being made through
that telephone conversation to alter the truth, the testi-
mony, and that there would be repercussions if that didn’t
occur. That’s the way Mr. Lewis took it, that’s the under-
standing I had as I heard [the testimony], and .. . I
would not be surprised if [the jury] interpreted it the
same way.” Vol. XIV at 979. Giving due regard to the
district court’s ability to judge the credibility of wit-
nesses, we conclude the district court was not clearly er-
roneous in enhancing Defendant Edward’s sentence for
obstruction of justice.
VIII. Conclusion
In conclusion, we AFFIRM the convictions and sen-
tences imposed by the district court as to all Defendants.
We DENY Defendant Chaplin’s “Motion to Certify a
Question of State Law.” We DISMISS Defendant Law-
rence’s Petition for Writ of Habeas Corpus and accom-
panying Motion for Evidentiary Hearing.”
14 Proceeding pro se, Defendant Lawrence has filed in this court
a “Petition for Writ of Habeas Corpus and Order Discharging
from Custody” and an accompanying motion requesting an evi-
dentiary hearing. Construing Defendant’s motions liberally, see
Haines v. Kerner, 404 U.S. 519, 520 (1972), we view them as
37a
seeking collateral relief from his conviction pursuant to 28 U.S.C.
§ 2255. See, e.g., United States v. Rourke, 984 F.2d 1063, 1067
(10th Cir. 1993) (liberally construing a pro se motion as one
brought pursuant to § 2255); Ray v. United States, 295 F.2d 416,
417 (10th Cir. 1961) (petition designated as petition for writ of
habeas corpus and filed in original criminal action was properly
treated as a § 2255 motion). “Federal courts of appeals have no
power to consider an original motion to set aside sentence under
... § 2255.” United States v. Auman, 8 F.3d 1268, 1272 (8th Cir.
1993) (citing cases). Rather, “[mJotions under [§ 2255] must be
brought in the sentencing court, preferably before the sentencing
judge who is most familiar with the case.” Carter v. Attorney
Gen. of the United States, 782 F.2d 138, 141 (10th Cir. 1986).
Because we have no jurisdiction to consider Defendant’s § 2255
motion, we dismiss Defendant’s motions without prejudice in order
that he may file them in the proper forum.
38a
APPENDIX B
[Filed Apr. 20, 1994]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
Case No. 93-CR-185-C
UNITED STATES OF AMERICA,
Plaintiff,
VS.
MILTON EDWARDS, WILLIAM THOMAS LAWRENCE, JR.
HERBERT LEwIs, JR., KERRY CHAPLIN, and
TERRY RATLIFF,
Defendants.
ORDER
The Court has reviewed the supplemental briefs filed
regarding defendants’ motion to suppress evidence ob-
tained by state agents through interception of wire com-
munications. From consideration of the undisputed facts
and relevant law, the court finds as follows.
It is undisputed that the two target telephone facilities
were located in Atoka County, Oklahoma and that the
listening post for the intercepted communications were
located in Cleveland County, Oklahoma. The territorial
jurisdiction of the requesting district attorney included
Cleveland County but his jurisdiction did not extend to
Atoka County. The wire tap order issued by the Presid-
ing Judge of the Oklahoma Court of Criminal Appeals
authorized an interception of telephone communications
in Atoka County. The agents performing the interception
leased from the telephone company a telephone number
39a
and the service to and from that number. The telephone
company provided the “binding post number” for the tar-
get telephone number and the “binding post number” for
the law enforcement telephone number. The “binding
post number” is different and separate from the telephone
number. The law enforcement agency then connected the
binding post for the target telephone number to the bind-
ing post for the law enforcement telephone through an
electronic isolator, to prevent unauthorized persons from
detecting the wiretap. This connection physically oc-
curred in Atoka County. State agents monitored the lis-
tening vost in Cleveland County. The electronic signals
passing to and from Atoka County were received and
heard in Cleveland County.
The defendants contend that the interception was un-
lawful because the telephone facilities where the com-
munications were intercepted were not located in the jur-
isdiction of the district attorney who applied for the in-
tercept order. The statute only authorizes an interception
within the territorial jurisdiction of the district attorney
requesting the order. 13 O.S. § 176.9(c).
The government contends that since the intercepted
communications were received and heard in Cleveland
County, the territorial jurisdiction requirement was met.
In determining whether an interception of wire commu-
nication by state agents in Oklahoma is lawful and within
jurisdictional limitations, the Court must apply Oklahoma
statutory law contained in 13 O.S. § 176.1 et al. The
Court finds that the statutory language is plain and un-
ambiguous. Oklahoma Statute Title 13, § 176.9(c) pro-
vides in relevant part:
Upon the submission of the application, an ex
parte order may be entered, as requested or as modi-
fied, authorizing interception of wire, oral or elec-
tronic communications within the -territorial jurisdic-
tion of the judicial district of the district attorney
requesting the order if the judges of competent juris-
40a
diction determines on the basis of the facts submitted
by the applicant that: [There is probable cause].
(emphasis added).
The statute defines “intercept” to mean the aural acqui-
sition of the contents of any wire, oral or electronic
communication through the use of electronic, mechanical
or other device. 13 O.S. § 176.2(8). “Aural acquisition”
means obtaining knowledge of a communication through
the sense of hearing which is contemporaneous with the
communication. 13 O.S. § 176.2(2). Under the statute,
the aural acquisition of the communication occurred in
Cleveland County, which is within the territorial jurisdic-
tion limits of the district attorney who applied for the
intercept order.
It may reasonably be argued that the Oklahoma legis-
lature intended to restrict the telephones to be intercepted
to be physically located within the jurisdiction of district
attorney applying for the intercept order. However, such
an argument must fail under the plain language of the
authorizing statute. The Court is limited to the language
contained in the statute and the language supersedes any
speculation as to legislative intent. The statute covers
the entire subject and creates the authority, and that is
the only authority that can be enforced by the courts.
The Court finds and concludes that the wire intercep-
tion was lawful and accordingly, defendants’ motion to
suppress evidence is denied.
IT IS SO ORDERED this 20th day of April, 1994.
s/ H. Dale Cook
H. DALE CooK
United States District Judge
4la
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Nos. 94-5202, 94-5203, 94-5204, 95-5003
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
V.
MILTON EDWARDS, TERRY RATLIFF, SR.,
WILLIAM THOMAS LAWRENCE, and KERRY CHAPLIN,
Defendants-A ppellants.
ORDER
Entered December 1, 1995
Before BALDOCK, McWILLIAMS, Circuit Judges, and
BROWN %, District Judge.
This matter comes on for consideration of appellants’
petition for rehearing and suggestion for rehearing in
banc.
Upon consideration whereof, the petition for rehearing
is denied by the panel that rendered the decision.
In accordance with Rule 35(b), Federal Rules of Ap-
pellate Procedure, the suggestion for rehearing in banc
was transmitted to all of the judges of the court who are
* The Honorable Wesley E. Brown, United States District Court
for the District of Kansas, sitting by designation.
42a
in regular active service. No member of the panel and no
judge in regular active service on the court having re-
quested that the court be polled on rehearing in banc,
Rule 35, Federal Rules of Appellate Procedure, the sug-
gestion for rehearing in banc is denied.
Entered by the Court
PATRICK FISHER
Clerk
By: /s/ Opal Carter
OPAL CARTER
Deputy Clerk
OE
43a
APPENDIX D
RELEVANT STATUTORY PROVISIONS
21 U.S.C. § 841
§ 841. Prohibited acts A
Unlawful acts
(a) Except as authorized by this subchapter, it shall be
unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dis-
pense, a controlled substance;
ok *
21 U.S.C. § 843
§ 843. Prohibited acts C
* % 3k *
Communication facility
(b) It shall be unlawful for any person knowingly or
intentionally to use any communication facility in com-
mitting or in causing or facilitating the commission of any
act or acts constituting a felony under any provision of
this subchapter or subchapter II of this chapter. Each
separate offense under this subsection. For purposes of
this subsection, the term “communication facility” means
any and all public and private instrumentalities used or
useful in the transmission of writing, signs, signals, pic-
tures, or sounds of all kinds and includes mail, telephone,
wire, radio, and all other means of communication.
3 % ok *
21 U.S.C. § 846
§ 846. Attempt and conspiracy
Any person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the
44a
same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or
conspiracy.
OKLA. STAT. tit. 13, § 176.2
176.2. Definitions
As used in the Security of Communications Act:
2K 2k ok me
6. “Electronic communication” means any transfer of
signs, signals, writing, images, sounds, data, or intelligence
of any nature transmitted in whole or in part by a wire,
radio, electromagnetic, photoelectronic or photooptical
system, but does not include:
a. the radio portion of a cordless telephone com-
munication that is transmitted between the cord-
less telephone headset and the base unit,
b. any wire or oral communications,
c. any communication made through a tone-only
paging device, or
d. any communication from a tracking device;
* * *
8. “Intercept” means the aural acquisition of the con-
tents of any wire, oral or electronic communication
through the use of any electronic, mechanical or other
device;
K * x *
OKLA. STAT. tit. 13, § 176.7
§ 176.7. Court order authorizing interception of commu-
nications
The Attorney General, upon application by a district
attorney, may make application to a judge of competent
jurisdiction for, and such judge may grant in conformity
with the Security of Communications Act, an order au-
thorizing the interception of wire, oral or electronic com-
45a
munications by any law enforcement agency of this state
or any political subdivision thereof having responsibility
for the investigation of the offense as to which the appli-
cation is made, when such interception may provide evi-
dence of the commission of the offense of murder, the
cultivation or manufacture or distribution of narcotic
drugs or other controlled dangerous substances as defined
in the Uniform Controlled Dangerous Substances Act, or
trafficking in illegal drugs, as defined in the Trafficking
in Illegal Drugs Act, and any conspiracy to commit the
crimes specifically enumerated in this section.
OKLA. STAT. tit. 13, § 176.9
176.9. Application for court order—Contents—A dditional
evidence—Ex parte order—Specifications of order
—Time limitations—Reports
4 a ok ok
C. Upon the submission of the application, an ex parte
order may be entered, as requested or as modified, au-
thorizing interception of wire, oral or electronic communi-
cations within the territorial jurisdiction of the judicial
district of the district attorney requesting the order if the
judge of competent jurisditcion determines on the basis
of the facts submitted by the applicant that:
1. There is probable cause for belief that an in-
dividual is committing, has committed or is about
to commit a particular offense enumerated in Section
176.7 of this title;
2. There is probable cause to believe that par-
ticular communications concerning the offense will
be obtained through such interception;
3. Normal investigative procedures have been
tried and have failed or reasonably appear to be
either unlikely to succeed if tried or are too danger-
ous; Or
4oha
4. There is probable cause to believe that the
facilities from which, or the place where the wire,
oral or electronic communications are to be inter-
cepted, are being used by an individual or are about
to be used in connection with the commissions of
such offense or are leased to, listed in the name of
or commonly used by such person.
“ * x x
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.