U.S. v. Anderson

Page 331

39 F.3d 331

309 U.S.App.D.C. 54

UNITED STATES of America, Appellee, v. Marcos Loinas ANDERSON, a/k/a Marcos Loynas Anderson, a/k/a

T. Torrero, a/k/a Samuel Perez, Appellant.

UNITED STATES of America, Appellee, v. Maria BERDECIA, a/k/a Maria C. Depalacio, a/k/a Consuela, Appellant.

UNITED STATES of America, Appellee, v. Norberto GARCES, a/k/a Victorio Torres, Piro, Appellant.

UNITED STATES of America, Appellee, v. Gabriel Ruperto DAVIS-MUNOZ, a/k/a Gabriel Davis, Gabelin,

Appellant.

UNITED STATES of America, Appellee, v. Alfredo BRATHWAITE, a/k/a Sealy, Alfredo West, Freddie, Appellant.

UNITED STATES of America, Appellee, v. Beverly Elaine NELSON, a/k/a Beverly M. Nelson, Appellant.

UNITED STATES of America, Appellee, v. Robert Luis CASTILLO, a/k/a Robert Luis Castillo-Garrido, Appellant.

UNITED STATES of America, Appellee, v. Antonio SCOTT, a/k/a Tony Anderson, Tony, Appellant.

UNITED STATES of America, Appellee, v. Leonard Lancelot SHAND, a/k/a Steve, Appellant.

UNITED STATES of America, Appellee, v. Vielka DUDLEY, a/k/a Vielka Dudley-Maynard, Vielka Davis, Benky, Appellant.

UNITED STATES of America, Appellee, v. Antonio SCOTT, a/k/a Tony Anderson, Tony, Appellant.

UNITED STATES of America, Appellee, v. Michael Jonathan BOOZE, Appellant.

UNITED STATES of America, Appellee, v. Thomas Timothy BOOZE, a/k/a Timmy, Appellant.

UNITED STATES of America, Appellee, v. Gregory Orlander BOOZE, Appellant.

Nos. 90-3041, 90-3044 to 90-3048, 91-3030, 91-3075, 91-3077,

91-3103, 90-3200, 90-3131, 90-3154 and 91-3003.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 17, 1993.

Decided Oct. 18, 1994.

As Amended Oct. 18, 1994.

Rehearing and Suggestion for Rehearing

In Banc Denied Dec. 22, 1994

in No. 90-3154.

Rehearing and Suggestion for Rehearing

In Banc Denied Jan. 10, 1995

in No. 90-3047.

Rehearing Denied Feb. 9, 1995 in No. 90-3041 ^*.

Order Granting Rehearing In Banc and

Vacating Judgment Feb. 9, 1995

in No. 90-3041.

Appeals from the United States District Court for the District of Columbia (Criminal No. 89-0160).

William S. Rhyne (appointed by the Court) argued the cause and filed the brief, for appellant Maria Berdecia.

Achim Kriegsheim (appointed by the Court) argued the cause, for appellant Michael Jonathan Booze. On the joint brief were Diane S. Lepley, for appellant Gregory Orlander Booze and Lois R. Goodman, for appellant Thomas Timothy Booze.

David C. Niblack (appointed by the Court) argued the cause and filed the brief, for appellant Robert Luis Castillo.

Dennis M. Hart (appointed by the Court) argued the cause and filed the brief, for appellant Marcos Loinas Anderson.

Lois R. Goodman (appointed by the Court) argued the cause and filed the brief, for appellant Thomas Timothy Booze.

Robert W. Mance (appointed by the Court) argued the cause and filed the brief, for appellant Gabriel Ruperto Davis-Munoz.

G. Godwin Oyewole (appointed by the Court) argued the cause and filed the brief, for appellant Leonard Lancelot Shand.

David Carey Woll (appointed by the Court) argued the cause and filed the brief, for appellant Alfredo Brathwaite.

Thomas Abbenante (appointed by the Court) argued the cause and filed the brief, for appellant Vielka Dudley.

Richard S. Stern (appointed by the Court) argued the cause and filed the brief, for appellant Antonio Scott.

W. Gary Kohlman argued the cause and filed the brief, for appellant Beverly Elaine Nelson.

Michael J. McCarthy (appointed by the Court) argued the cause and filed the brief, for appellant Norberto Garces.

Diane Lepley (appointed by the Court) argued the cause and filed the brief, for appellant Gregory Orlander Booze.

Stephen J. Pfleger and James C. Bohling, Asst. U.S. Attys., argued the cause, for the appellee. On the brief were J. Ramsey Johnson, U.S. Atty. at the time the brief was filed, and John R. Fisher and Margaret R. Batten, Asst. U.S. Attys. Elizabeth Trosman, Asst. U.S. Atty., entered an appearance.

Before: SILBERMAN, GINSBURG, and HENDERSON, Circuit Judges.

Opinion filed PER CURIAM.

Opinion dissenting in part filed by Circuit Judge SILBERMAN.

PER CURIAM:

The appellants were convicted of and sentenced on various drug offenses, all related to an extensive cocaine distribution network organized and managed by appellant Anderson, a Washington, D.C. area resident. For a period of years, Anderson purchased cocaine from several suppliers in Washington, New York and California and resold it to both wholesale distributors and street level dealers, primarily through five "distribution centers" located in Washington, Maryland and Virginia. ¹ According to the government, appellants Berdecia, Garces, Dudley, Davis and Brathwaite were among the various individuals who supplied, or attempted to supply, Anderson with cocaine at one time or another; appellants Thomas Booze, Gregory Booze, Michael Booze ² and Brathwaite purchased cocaine from Anderson for further distribution; and appellants Castillo, Shand and Scott worked in Anderson's distribution centers. Appellant Nelson, Anderson's girlfriend, relayed messages between other conspirators and Anderson.

The thirteen appellants, along with 18 alleged co-conspirators, were indicted in a 126-count superseding indictment filed June 23, 1989. The trial judge divided the defendants into three groups for three separate trials (hereafter referred to collectively as "Group I," "Group II" and "Group III" defendants). ³ Each of the appellants was convicted of one count of conspiring to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846 and of one or more counts of using a telephone to facilitate a drug transaction in violation of 21 U.S.C. Sec. 843(b). In addition, appellants Anderson, Thomas Booze, Brathwaite, Davis and Dudley were convicted of possessing on at least one occasion some quantity of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a) and appellants Anderson and Thomas Booze were convicted of traveling interstate in aid of racketeering activities in violation of 18 U.S.C. Sec. 1952(a). Appellant Anderson was also convicted of distributing cocaine in violation of 21 U.S.C. Sec. 841(a), carrying and using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c) and engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848. The appellants were sentenced to prison terms ranging from 121 months (Gregory Booze) to 645 months (Anderson), and fines were imposed on appellants Anderson ($1,000,000), Berdecia ($25,000), Thomas Booze ($17,500) and Davis ($1,000,000).

The appellants have marshaled a host of challenges to both their convictions and their sentences. For the reasons set out below, we vacate Anderson's CCE and conspiracy convictions, remanding for entry of judgment on only one of those two counts, and his $1,000,000 fine, remanding for findings regarding his ability to pay it. We affirm all the other defendants' convictions but vacate their sentences and remand for findings regarding the quantity of drugs for which each appellant can be held accountable. ⁴

I. PRETRIAL ISSUES

A. The Wiretap Issue

The drug conspiracy for which the appellants here were convicted was uncovered in large part through the use of wiretaps on various conventional and cellular phones. All the appellants seek reversal of their convictions on the grounds that the evidence derived from these wiretaps should have been suppressed because of alleged violations by the government of the wiretap statute.

The wiretap statute (Title III of the Omnibus Crime Control and Safe Streets Act of 1968) provides that:

The Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General or any Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge ... for ... an order authorizing or approving the interception of wire or oral communications....

18 U.S.C. Sec. 2516 (1988) (emphasis added). Once an authorized application for a wiretap has been granted, the statute requires that

[e]very order and extension thereof shall contain a provision that the authorization to intercept ... shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.... In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.

18 U.S.C. Sec. 2518(5) (1988). Finally, section 2518(10)(a) provides for the suppression of all evidence, either contained in, or derived from, a wiretap, if "the communication was unlawfully intercepted," or "the order of authorization or approval under which it was intercepted was insufficient on its face," or "the interception was not made in conformity with the order of authorization or approval." 18 U.S.C. Sec. 2518(10)(a) (1988). ⁵

On December 12, 1986, then-Attorney General Meese signed an order authorizing three Deputy Assistant Attorneys General (John C. Keeney, Stephen A. Saltzburg, and Mark M. Richard, referred to as DAAGs) to authorize applications for wiretaps. On August 12, 1988, Attorney General Meese resigned and Thornburgh took his place. Between September 20, 1988 and March 15, 1989, that is between one and seven months after Meese left office, nine wiretaps were issued pursuant to requests authorized by the three DAAGs. The authorization memoranda in question here were each addressed to Franklin Hess, Head of Enforcement, Criminal Division, and each purported to be from Edward Dennis, Acting Assistant Attorney General for the Criminal Division. The memoranda bore a line for Dennis' signature, over which a signature of...