United States v. Gardner

United States of America, Plaintiff-Appellee, v. Donald Bernard Gardner (20-1118); Martinellus Nix (20-1170); Ryan Rashad Brown (20-1260); Douglas Emmanuel Carey, III, (20-1265); Marvin Quantez Nix (20-1266); Salena E. Kolarich (20-1272), Defendants-Appellants.

Nos. 20-1118, 20-1170, 20-1260, 20-1265, 20-1266, 20-1272

United States Court of Appeals, Sixth Circuit

April 25, 2022

Argued: October 21, 2021

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No 1:18-cr-00167-8-Paul Lewis Maloney, District Judge.

ARGUED:

Mary Chartier, CHARTIER & NYAMFUKUDZA, P.L.C., Okemos Michigan, for Appellant in 20-1265.

Daniel T. McGraw, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids Michigan, for Appellee.

ON BRIEF:

Mary Chartier, CHARTIER & NYAMFUKUDZA, P.L.C., Okemos, Michigan, for Appellant in 20-1265.

Michael J. Manning, MANNINGLAW, Escanaba, Michigan, for Appellant in 20-1118. Lawrence J. Phelan, Walker, Michigan, for Appellant in 20-1170.

John M. Karafa, GRAVIS LAW, PLLC, Muskegon, Michigan, for Appellant in 20-1260. Daniel R. Fagan, DANIEL R. FAGAN & ASSOCIATES, P.C., Grand Rapids, Michigan, for Appellant in 20-1266.

Mark Louis Dobias, MARK L. DOBIAS, P.C., Sault Ste. Marie, Michigan, for Appellant in 20-1272.

Daniel T. McGraw, Kate Zell, Kathryn Dalzell, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: McKEAGUE, NALBANDIAN, and MURPHY, Circuit Judges.

OPINION

NALBANDIAN, CIRCUIT JUDGE.

This case is about a drug-trafficking conspiracy that distributed more than 100 kilograms of powder and crack cocaine in Southwest Michigan from 2017 to 2018. The conspiracy involved dozens of actors across the states of Michigan, Texas, and Arkansas. But only eight members of the operation play a relevant role here. The first, Howard Mayfield, served as the Grand Rapids-based ringleader of the drug-trafficking organization. The second, Wilbert Gentry, supplied Mayfield from Houston, Texas, with kilogram quantities of cocaine. The next six players-Donald Gardner, Martinellus Nix, Ryan Brown, Douglas Emmanuel Carey, Marvin Nix, and Salena Kolarich-acted as money couriers, wholesale distributors, and street-level dealers in the Grand Rapids area.

Federal prosecutors indicted a grand total of 27 coconspirators in 2018. And all were convicted for their various roles in the conspiracy. These appeals are brought by six of those coconspirators-Gardner, Brown, Carey, Kolarich, Marvin Nix, and Martinellus Nix. Together, their consolidated appeals present 17 issues, ranging from the denial of their motions to suppress wiretap evidence to sentencing errors. We take each in turn, affirming the district court on all but one issue.

I.

The Investigation.

Howard Mayfield ran a drug-trafficking organization out of Grand Rapids, Michigan. His operation dealt powder and crack cocaine in and around the area. Wilbert Gentry, an old cellmate of Mayfield's, supplied the organization with cocaine from his base in Houston, Texas. Starting in the spring of 2017, Mayfield received around five kilograms of cocaine from Gentry each month. Sometimes the amount varied-once Mayfield received 15 kilograms from Gentry. Sometimes Gentry supplied Mayfield more than once a month. And sometimes Mayfield met Gentry in Houston to exchange cocaine and payment, although other times he met one of Gentry's couriers in Arkansas. All in all, Mayfield's operation managed to move hundreds of kilograms of cocaine in 2017 and 2018.

But Mayfield's drug-trafficking ring wasn't the only clandestine operation in town. Agents at the Drug Enforcement Agency (DEA) caught wind of Mayfield's organization right before Gentry entered the picture. They launched an investigation soon after, partnering with law enforcement agencies across the country to slowly piece together a picture of the operation. Together, the agencies used many traditional techniques-including confidential sources, controlled buys, phone record analysis, and physical surveillance-to gather information. And they had some success. Investigators, for instance, learned the identities of people associated with Mayfield, gathered physical evidence that Mayfield dealt cocaine, and knew the identity of Gentry.

But after a year of work, the investigation stalled. Confidential sources dried up. Physical surveillance couldn't follow suspects into apartment buildings. And toll record and pen register requests struggled to keep pace with rotating burner phones. So despite some initial success, investigators still missed key pieces of the puzzle. True, they had identified a few suspects close to Mayfield. But they didn't know the scope of the suspects' roles or if they even worked for the operation in the first place. In short, investigators had enough evidence to prosecute Mayfield and Gentry, but not enough to dismantle the whole organization.

So on March 13, 2018, investigators sought authorization to wiretap one of Mayfield's phones (Target Phone 1). In support, they filed an 87-page affidavit that described how Mayfield used the phone, why interception was necessary, and what techniques had been "tried and [had] failed to fully achieve the goals and objectives of [the] investigation." (R. 2, pp. 79- 99.) The district court signed an order authorizing interception for an initial 30-day period that same day. About a month later, the district court signed an order for another 30-day wiretap on the same phone. But soon after, investigators realized Mayfield had started to use a new phone (Target Phone 2) to communicate with his cocaine suppliers and distributors. So they put in an application to tap that phone too, which the district court approved on May 1, 2018.

The wiretaps served their purpose. Investigators paired intercepted communications with continued physical and electronic surveillance. Together, the evidence painted a detailed picture of Mayfield's organization. This picture revealed the scope of each coconspirators' role. Brown and Gardner served as retail distributors of cocaine for Mayfield. Both communicated with Mayfield about shipments, suppliers, and deals. Carey and the Nix cousins, for their parts, filled out the roster as street-level dealers. And Kolarich, Gentry's girlfriend, collected $50, 000 in cash cocaine proceeds from Mayfield in a parking-lot exchange. She personally transported some of the money to Gentry and asked friends to help her wire the rest.

Armed with the wiretap evidence, investigators launched a coordinated takedown on May 24, 2018. That day, they arrested and charged 15 members of Mayfield's operation-including Mayfield, Gardner, Gentry, and Brown. Soon after, the grand jury indicted 27 defendants, including Martinellus Nix, Marvin Nix, Carey, and Kolarich, with conspiracy to distribute and possess cocaine, along with substantive counts for each of the defendants' drug-related activities.

All but four of the 27 defendants pleaded guilty. Gardner took this path, pleading guilty to conspiring to distribute and possess with the intent to distribute cocaine or cocaine base. Martinellus Nix did the same, pleading guilty to possession with intent to distribute cocaine. The other four defendants-Brown, Carey, Marvin Nix, and Salena Kolarich-proceeded to trial.

Trial and Sentencing Proceedings.

At trial, the government introduced testimony from many witnesses. Investigators testified about their participation in the takedown of the drug-trafficking ring. Expert witnesses explained the code words and street slang used in intercepted calls and texts. Voice-identification witnesses identified the defendants' voices on intercepted calls. And cooperating codefendants, like Gentry, gave in-depth descriptions of the organization's operations. The government's evidence also included drugs bought from Mayfield, intercepted cocaine, bank records, phone records, residency records, and electronic evidence from GPS tracking devices. The real star of the show, though, was the wiretap evidence. The government played intercepted phone calls between Mayfield and each of the defendants. It also introduced pages of text messages that discussed drug dealing, cocaine shipments, and cocaine-supply issues.

In the end, the jury convicted all four defendants. Each was convicted on the cocaine conspiracy charge. The jury also convicted Brown, Carey, and Marvin Nix of separate counts of possession with intent to distribute cocaine or cocaine base. And it convicted Kolarich for unlawful use of a communication facility to enable the cocaine conspiracy, along with interstate travel to distribute the conspiracy's drug proceeds.

The district court then sentenced Gardner to 168 months, Martinellus Nix to 120 months, Marvin Nix to 96 months, Carey to 150 months, Brown to 204 months, and Kolarich to 60 months' imprisonment.

All six defendants appealed, raising 17 issues in total. We address their arguments in three parts. First, we consider the district court's denial of the defendants' motion to suppress the wiretap evidence. Next, we turn to evidence issues from the trial. Last, we take up the defendants' sentencing challenges.

II.

The standard of review for a district court's denial of a motion to suppress is familiar. We review findings of fact for clear error and questions of law de novo. United States v. Young, 847 F.3d 328, 342 (6th Cir. 2017). But in cases about motions to suppress wiretap evidence there's a twist. This is because we consider the orders of two different district court judges: (1) the issuing district court judge, who authorizes the government's use of wiretaps in the first place; and (2) the reviewing district court judge, who either grants or denies a defendant's motion to suppress the...