United States v. Castro

960 F.3d 857

UNITED STATES of America, Plaintiff-Appellee,

v.Alex Alberto CASTRO; Dante Andre Howard; Solon Tatum, Defendants-Appellants.

Nos. 19-1166/19-1292/19-1422

United States Court of Appeals, Sixth Circuit.

Argued: May 5, 2020

Decided and Filed: June 3, 2020

ARGUED: Martin J. Beres, Clinton Township, Michigan, for Appellant in 19-1292. Joseph A. Almeida, Steubenville, Ohio, for Appellant in 19-1422. Stephen P. Baker, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Martin J. Beres, Clinton Township, Michigan, for Appellant in 19-1292. Joseph A. Almeida, Steubenville, Ohio, for Appellant in 19-1422. Nathan A. Ray, Akron, Ohio, for Appellant in 19-1166. Stephen P. Baker, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: MERRITT, SUHRHEINRICH, and SUTTON, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

A jury convicted Defendants-Appellants Alex Castro, Dante Howard, and Solon Tatum of conspiring to distribute heroin, cocaine, and marijuana in western Michigan. The evidence at trial depicted a sophisticated drug trafficking organization, with the conspirators going to great lengths to avoid detection. Appellants challenge the tools the government used to ensnare members of the organization, including wiretaps that recorded drug-related conversations between co-conspirators. Because the district court properly authorized those wiretaps, properly admitted evidence obtained from them, properly concluded that the evidence offered by the government supported Appellants’ convictions, and properly sentenced Appellants, we affirm.

I.

A.

In the spring of 2017, DEA agents in Grand Rapids, Michigan, began investigating a drug trafficking ring led by brothers Yusef Phillips and Ray Anthony Lee. Confidential sources told them that Phillips and Lee bought and sold kilogram-level quantities of heroin and cocaine in Grand Rapids, Benton Harbor and Kalamazoo. The investigators gathered evidence against Phillips and Lee, conducting surveillance of them moving packages into and out of two "stash house" locations, recovering drug related products from "trash pulls" at those locations, and making "controlled buys" of drugs from their associates. The agents also observed activity that led them to believe that Phillips and Lee got their drugs from interstate semi-truck shipments. For example, at 4:00 a.m. on July 17, 2017, agents followed Ray Lee’s car to a hotel parking lot, where he and Phillips parked near a semi-truck and interacted with the driver. After the meet-up, Phillips and Lee returned to one of the suspected stash houses.

Based on that evidence, the agents obtained authorization to tap Phillips’s and Lee’s cell phones. They began monitoring Lee’s phone ("Target Phone 3") on July 20, 2017 and began monitoring Phillips’s phone ("Target Phone 4") on July 27, 2017. Subsequently, they gained authorization to monitor two more phones owned by Lee and one more phone owned by Phillips. The agents monitored those phones until Phillips and Lee were arrested on September 3, 2017. With the assistance of those wiretaps, the government observed Phillips and Lee arrange additional semi-truck shipments of drugs from their supplier on July 31 and September 3, 2017.

On September 3, 2017, the government arrested 17 members of the alleged drug conspiracy and executed 20 search warrants, uncovering approximately $1,300,000, 13 kilograms of cocaine, 19 kilograms of heroin, 1.5 kilograms of fentanyl, 50 pounds of marijuana, three handguns, and an assault rifle. Phillips and Lee cooperated with the government and described the scope of their drug trafficking organization. The investigation produced evidence against each of the Appellants, which is summarized below.

Appellant Alex Castro. Phillips testified that, starting in late 2013 or early 2014, Castro sold him heroin, cocaine, and marijuana in kilogram-level quantities. According to Phillips, Castro supplied drugs to him and Lee about once per month until the arrests in September of 2017.

Castro used long-haul truck drivers to move drugs from California to Grand Rapids. Federal agents observed three of these deliveries at a Grand Rapids hotel in the summer of 2017. On September 3, 2017, the agents arrested the truck driver, Salvador Cervantes, who agreed to cooperate with the investigation. Cervantes testified that Castro recruited him to carry drugs in his semi-truck and paid him $1,000 per kilogram delivered over the course of several years.

At trial, the government introduced text messages and recorded conversations between Phillips and Castro that were obtained from the wiretaps on Phillips’s cell phone. Phillips testified that he and Castro were discussing drug transactions, including price, quantity, quality, and delivery instructions. Phillips also stated that he and Castro communicated in code to avoid detection, referring to kilograms of heroin as "originals," kilograms of cocaine as "chicas," and thousands of dollars of drug proceeds as "the count." Phillips, Lee, and Cervantes all identified Castro as the speaker on the calls admitted at trial.

Appellant Dante Howard. Phillips testified that he sold cocaine, heroin and marijuana to Dante Howard from late 2016 or early 2017 until September of 2017. Phillips explained that he delivered drugs to Howard through intermediaries, including an individual named Etrevion Murphy, who carried drugs from Grand Rapids to Benton Harbor on the Greyhound bus.

The government introduced calls and texts between Phillips and Howard to corroborate Phillips’s testimony. Although the two spoke in vague terms, such as "[l]et’s make that happen the same way," Phillips testified that they were talking about drugs. Phillips and Howard also shared their concerns about being detected by police, like when Phillips told Howard that one of their couriers suspected she had been surveilled while driving drug money from Benton Harbor to Chicago. Howard stipulated that he was the speaker on the phone calls.

Appellant Solon Tatum. Ray Lee testified that Solon Tatum, whom he knew as "Solo," was his barber. Lee testified that he sold Tatum two kilograms of cocaine in July of 2017. The government introduced evidence that Lee sold Tatum the first kilogram in a motel parking lot on July 14, 2017. Lee testified that on July 18, 2017 he and Tatum met in a mall parking lot, where he delivered another kilogram of cocaine to Tatum and Tatum paid him for the kilogram delivered on July 14. The government offered video surveillance and recorded conversations to corroborate Lee’s testimony. Tatum stipulated that he was the speaker in those communications.

The government also offered evidence that Tatum intended to sell the cocaine he got from Ray Lee. Government witness Derrick Swain testified that he purchased cocaine from Tatum on two or three different occasions in late 2016, amounting to a "couple ounces."

B.

The government charged Appellants for their alleged involvement in Phillips and Lee’s organization.

The jury found Castro guilty of conspiring to distribute over one kilogram of heroin, over five kilograms of cocaine, and less than 50 kilograms of marijuana. During sentencing, the district court applied a two-level enhancement for obstruction of justice based on Castro’s visit to the family of Salvador Cervantes and Castro’s efforts to gather information about the cooperating witnesses while in pretrial custody. Castro’s offense level was 46, but capped at 43, the highest possible offense level. Accordingly, it would have been 43 even if the obstruction enhancement had not been applied. Based on Castro’s criminal history category of VI, his Sentencing Guideline range was life in prison. The court imposed a sentence of 504 months, to be followed by 24 months for a pending supervised release violation.

The jury found Howard guilty of conspiracy to distribute controlled substances. At sentencing, the district court attributed to Howard one kilogram of cocaine and 800 grams of heroin, resulting in a "converted drug weight" of 1000 kilograms and an offense level of 28. The district court also added one point to Howard’s criminal history score based on a misdemeanor use-of-marijuana conviction in 2017. With an offense level of 28 and a criminal history category of III, Howard’s Sentencing Guideline range was 97 to 121 months. Citing Howard’s extensive criminal record, the court sentenced him to 120 months.

The jury found Tatum guilty of the conspiracy charge (Count 1), not guilty of possessing with intent to distribute cocaine on July 14, 2017 (Count 2), and guilty of possessing with intent to distribute cocaine on July 18, 2017 (Count 3). Tatum represented himself at his sentencing, having discharged his trial counsel. The district court determined that Tatum testified falsely at trial and on that basis applied a two-level enhancement to Tatum’s offense level. With an offense level of 26 and a criminal history category of III, Tatum faced a Guideline range of 78 to 97 months in prison. The district court sentenced him to 84 months.

Castro, Howard, and Tatum now appeal their convictions and sentences.

II.

As noted above, the issues on appeal fall into four general categories: first, whether the district court erred by admitting evidence obtained from wiretaps; second, whether the government offered sufficient evidence; third, whether the district court erred by admitting out-of-court statements of co-conspirators; and fourth, whether the district court properly sentenced the Appellants.

A.

Appellant Castro argues that the district court should have suppressed the evidence obtained from wiretaps of Phillips’s cell phones because the government failed to establish that those wiretaps were necessary as required by the federal statute governing interception of wire and electronic communications.

To use a wiretap, federal law enforcement officials must describe to an authorizing judge "whether or not other investigative procedures have...