United States v. Hawkins

934 F.3d 1251

UNITED STATES of America, Plaintiff-Appellee,

v.James Marvin HAWKINS, a.k.a. "D", Wallace Eugene McCree, III, a.k.a. "Petey", Defendants-Appellants.

No. 17-11560

United States Court of Appeals, Eleventh Circuit.

August 20, 2019

Sandra J. Stewart, U.S. Attorney Service-Middle District of Alabama, U.S. Attorney's Office, Montgomery, AL, for Plaintiff-Appellee.

Steven K. Herndon, Herndon Law, PC, Montgomery, AL, for James Marvin Hawkins, a.k.a. "D".

Susan Graham James, The James Firm, Montgomery, AL, for Wallace Eugene McCree, III.

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 conspiracy³ and attempted possession with intent to distribute cocaine.⁴ The additional charges against McCree were possession with intent to distribute cocaine⁵ ; 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 felon⁸ ; 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 counts¹² 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 Leon¹³ 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...