Appeals from the United States District Court for the Middle
District of Alabama D.C. Docket No. 2:15-cr-00335-RDP-TFM-9
TJOFLAT and NEWSOM, Circuit Judges, and ANTOON, [*] District Judge.
ANTOON, District Judge.
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.
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.
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. 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
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,  the superseding indictment charged Hawkins
with use of a communication facility in furtherance of the
conspiracy and attempted possession with intent to
distribute cocaine. The additional charges against McCree were
possession with intent to distribute cocaine; three offenses
arising from the traffic stop-possession with intent to
distribute cocaine,  possession of a firearm in relation to a
drug-trafficking crime,  and possession of a firearm by a
convicted felon; and three other offenses allegedly
committed on the day of his arrest on the conspiracy
charge-possession of marijuana with intent to distribute,
possession of a firearm in relation to a drug-trafficking
crime,  and possession of a firearm by a
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
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 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.
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.
Denials of Motions to Suppress
Wiretap Evidence (Hawkins and McCree)
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
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).
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
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
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.
the magistrate judge explained in his report recommending
denial of the motions to suppress, the
Leon 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
Traffic Stop Evidence (McCree only)
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.
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.
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).
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.
Constructive Amendment/Variance on Count One (Hawkins
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.
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).
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.
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 ...