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United States v. Hawkins

United States Court of Appeals, Eleventh Circuit

August 20, 2019

JAMES MARVIN HAWKINS, a.k.a. "D", WALLACE EUGENE MCCREE, III, a.k.a. "Petey", Defendants-Appellants.

          Appeals from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:15-cr-00335-RDP-TFM-9

          Before TJOFLAT and NEWSOM, Circuit Judges, and ANTOON, [*] District Judge.

          ANTOON, District Judge.

         A jury found James Marvin Hawkins and Wallace Eugene McCree, III, guilty of conspiring to distribute cocaine and committing other related offenses. In this consolidated appeal, Hawkins and McCree challenge their convictions and sentences on multiple grounds. They principally argue that the Government's main witness-George Russell, the lead case agent-gave improper opinion testimony at trial. Although the rest of Hawkins's and McCree's arguments are without merit or need not be reached, we conclude that the allowance of Agent Russell's testimony-which was speculative and included improper commentary on the evidence-constitutes plain error. Thus, we affirm in part, vacate in part, and remand for further proceedings.

         I. Background

         Beginning in November 2014, the Drug Enforcement Administration (DEA) conducted a lengthy investigation of cocaine distribution in Montgomery, Alabama, initially targeting Joshua Jackson. Naturally, the DEA agents were interested in determining the source of Jackson's cocaine supply and the scope of his operation. To collect that information, the agents employed various means. In the beginning, they used confidential informants to conduct controlled buys of cocaine from Jackson. But as the investigation continued, the agents also obtained five wiretap authorizations from a district judge. Pursuant to those authorizations, the agents intercepted between 20, 000 and 25, 000 conversations on six "target telephones." Through the intercepted conversations, the agents identified Carlos Ware as Jackson's cocaine supplier, McCree and Hawkins as distributors for Ware, and others who played various roles in the operation.

         The recorded conversations also led to traffic stops of some of the suspected conspirators. For example, after agents intercepted text messages indicating that Ware was on his way to Georgia to purchase 8 to 9 kilograms of cocaine, the agents contacted Alabama state troopers. The troopers responded, stopped Ware as he was traveling on Interstate 85, and seized $299, 920 in cash from Ware's vehicle.[1] A few weeks later, DEA agents intercepted a telephone conversation between McCree and Ware, causing the agents to believe that McCree was transporting cocaine. The agents contacted Montgomery police officers, who then followed McCree as he drove south on Interstate 65 and pulled him over when he changed lanes without signaling. During the stop, a search of McCree's car uncovered nine ounces of cocaine, a cutting agent called Inositol, marijuana, and a firearm.

         Two months after McCree's traffic stop, a grand jury indicted Hawkins, McCree, Jackson, Ware, and seven others on a charge of conspiracy to distribute cocaine. The grand jury later returned a 26-count superseding indictment adding various charges against the individual defendants. In addition to conspiracy, [2] the superseding indictment charged Hawkins with use of a communication facility in furtherance of the conspiracy[3] and attempted possession with intent to distribute cocaine.[4] The additional charges against McCree were possession with intent to distribute cocaine[5]; three offenses arising from the traffic stop-possession with intent to distribute cocaine, [6] possession of a firearm in relation to a drug-trafficking crime, [7] and possession of a firearm by a convicted felon[8]; and three other offenses allegedly committed on the day of his arrest on the conspiracy charge-possession of marijuana with intent to distribute, [9] possession of a firearm in relation to a drug-trafficking crime, [10] and possession of a firearm by a convicted felon.[11]

         Several of the defendants, including Hawkins and McCree, filed pretrial motions to suppress the evidence obtained from the wiretaps, and McCree also moved to suppress evidence seized during the traffic stop. After holding an evidentiary hearing, the assigned magistrate judge recommended that the district court deny the motions. The district court followed that recommendation.

         All the other defendants pleaded guilty, but Hawkins and McCree proceeded to trial. After hearing three days of testimony-most of it from Agent Russell- the jury found Hawkins guilty on all three counts against him. The jury acquitted McCree on two counts[12] but found him guilty on the other six counts with which he was charged. The district judge sentenced Hawkins to 170 months in prison and McCree to 196 months. Hawkins and McCree now timely appeal their convictions and sentences.

         II. Discussion

         In addition to their argument that much of Agent Russell's testimony was improper, Hawkins and McCree present an array of issues. Both argue that the district court erred in denying the motions to suppress. Hawkins additionally complains that the evidence presented at trial constructively amended the superseding indictment and resulted in a material variance. He also challenges the sufficiency of the evidence on each of the three charges against him. And both Hawkins and McCree maintain that the district court committed errors in calculating their sentencing guideline ranges and that the sentences imposed were substantively unreasonable.

         A. Denials of Motions to Suppress

         1. Wiretap Evidence (Hawkins and McCree)

         Hawkins and McCree assert that evidence obtained pursuant to the wiretap authorizations should have been suppressed because the wiretap applications did not meet the necessity requirement of 18 U.S.C. § 2518. "A district court's denial of a motion to suppress evidence is reviewed as a mixed question of law and fact, with the rulings of law reviewed de novo and the findings of fact reviewed for clear error, in the light most favorable to the prevailing party." United States v. De La Cruz Suarez, 601 F.3d 1202, 1213 (11th Cir. 2010). Our review of the record reveals no error regarding the wiretap authorizations.

         Section 2518-titled "Procedure for interception of wire, oral, or electronic communications"-requires that "[e]ach application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter . . . include . . . a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1)(c). Section 2518(3)(c) similarly provides that "[u]pon such application the judge may enter an ex parte order . . . authorizing or approving interception of wire, oral, or electronic communications . . . if the judge determines on the basis of the facts submitted by the applicant that- . . . normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." Id. § 2518(3)(c).

         The purpose of these "necessity" provisions in § 2518 is to "ensure[] that law enforcement does not use electronic surveillance when less intrusive methods will suffice." United States v. Perez, 661 F.3d 568, 581 (11th Cir. 2011); accord United States v. Van Horn, 789 F.2d 1492, 1496 (11th Cir. 1986). But the statute "does not 'foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted.'" Perez, 661 F.3d at 581 (quoting United States v. Alonso, 740 F.2d 862, 868 (11th Cir. 1984)); accord Van Horn, 789 F.2d at 1496. Instead, it "require[s] the Government to show why alternative measures are inadequate for 'this particular investigation.'" Perez, 661 F.3d at 581 (quoting United States v. Carrazana, 921 F.2d 1557, 1565 (11th Cir. 1991)). In evaluating whether the Government met its burden, courts must read supporting affidavits "in a 'practical and commonsense fashion,' and the district court is clothed with broad discretion in its consideration of the application." Alonso, 740 F.2d at 868 (citations omitted) (quoting United States v. Brick, 502 F.2d 219, 224 n.14 (8th Cir. 1974)).

         Here, the prosecutor applied for and obtained a wiretap authorization from the district court to intercept Jackson's telephone conversations. The initial 10-page wiretap application was supported by a 52-page affidavit from Agent Russell. As the investigation expanded and additional authorizations were sought for different telephone numbers, lengthy supporting affidavits were again provided to the district judge.

         In this case, as in Perez, the supporting affidavits described other investigative techniques already employed that had failed to uncover critical evidence. See id. at 582. For example, the affidavit in support of the initial application included eleven pages explaining the inadequacies of other investigative techniques. Agent Russell explained in that affidavit why other investigative techniques-such as use of undercover agents, cooperating sources, witness interviews, grand jury subpoenas, physical surveillance, and trash searches-were either not productive or not feasible in this investigation. The affidavits thus satisfied the necessity requirement of § 2518.

         And as the magistrate judge explained in his report recommending denial of the motions to suppress, the Leon[13] good faith exception applies to wiretap applications and authorizations. See United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988). Here, there is no basis to conclude that the officers did not act in good-faith reliance on the judicially authorized wiretaps. Thus, even if the wiretap affidavits and authorizations were deficient, suppression of the evidence would not have been warranted.

         2. Traffic Stop Evidence (McCree only)

         McCree's argument that the district court erred in denying his motion to suppress evidence seized during the traffic stop fares no better. He argues that the evidence should have been suppressed because there was not probable cause for the traffic stop, but he fails to establish error.

         Again, the district court's denial of the motion presents a "mixed question of law and fact," and we review the rulings of law de novo and the findings of fact for clear error. De La Cruz Suarez, 601 F.3d at 1213. "Absent clear error, we are bound by the district court's findings of fact and credibility choices at the suppression hearing." United States v. Thompson, 928 F.2d 1060, 1063 (11th Cir. 1991) (quoting United States v. Roy, 869 F.2d 1427, 1429 (11th Cir. 1989)).

         "[L]aw enforcement 'may stop a vehicle when there is probable cause to believe that the driver is violating any one of the multitude of applicable traffic and equipment regulations relating to the operation of motor vehicles.'" United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998) (quoting United States v. Strickland, 902 F.2d 937, 940 (11th Cir. 1990)). "Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis"; "the constitutional reasonableness of traffic stops" does not "depend[] on the actual motivations of the individual officers involved." Whren v. United States, 517 U.S. 806, 813 (1996).

         McCree does not-because he cannot-quarrel with the principles espoused in Whren. He instead argues the facts-also an uphill battle. He maintains that he did not commit a traffic violation prior to the stop. But at the suppression hearing, the officers who stopped McCree testified that they observed McCree change lanes on the interstate without using a turn signal-an Alabama traffic infraction. And the magistrate judge specifically found the testimony of both officers credible. There is no basis to question the district court's credibility assessment here. See Cooper, 131 F.3d at 1398. Thus, McCree's argument on this point is without merit.

         B. Constructive Amendment/Variance on Count One (Hawkins only)

         Next, Hawkins argues that the evidence presented at trial on the conspiracy charge diverged from the allegations of the superseding indictment, resulting in a constructive amendment or a variance. We are not persuaded.

         "The Fifth Amendment guarantees that a defendant can be convicted only of crimes charged in the indictment." United States v. Holt, 777 F.3d 1234, 1261 (11th Cir. 2015). "[W]hen the evidence at trial . . . deviate[s] from what is alleged in the indictment, either a constructive amendment or a variance can arise." Id. "A constructive amendment occurs 'when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.'" Id. (quoting United States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004)). A variance, on the other hand, "occurs when the facts proved at trial deviate from the facts contained in the indictment but the essential elements of the offense are the same." Id. (quoting Narog, 372 F.3d at 1247).

         Hawkins bases his constructive amendment and variance arguments on a text message and phone call to Ware in which Hawkins proposed the purchase of a kilogram of cocaine from a new supplier. Hawkins argues that the message and phone call suggest a different conspiracy from the one charged, thus broadening the superseding indictment (constructive amendment) and demonstrating multiple conspiracies under an indictment alleging only a single conspiracy (variance). But neither a constructive amendment nor a variance occurred here.

         It is true that the Government's principal theory at trial was that Hawkins's role in the charged conspiracy was that of a distributor for Ware. But the fact that Hawkins informed Ware that Hawkins had the opportunity to acquire a kilogram of cocaine from a different supplier did not "broaden the possible bases for conviction beyond what is contained in the indictment" so as to constructively amend it. Id. The superseding indictment charged Hawkins with conspiring with Ware and several other named defendants as well as "others known and unknown to the Grand Jury," to distribute cocaine. The action of a distributor informing his supplier of a potential new source of supply is consistent with the underlying scheme and with there being a common goal in the conspiracy. See United States v. Reeves, 742 F.3d 487, 497-99 (11th Cir. 2014). The text message and phone call were "evidence that properly was admitted as ...

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