United States v. Mims

1

United States of America Plaintiff - Appellee v. Derek Michael Mims Defendant-Appellant United States of America Plaintiff - Appellee v. David Poitier Belton, also known as Blood Defendant-Appellant United States of America Plaintiff - Appellee v. Anton Tarrice Whitney, Jr. Defendant-Appellant United States of America Plaintiff - Appellee v. Elmer Mims, Unc Defendant-Appellant

Nos. 23-2884, 23-3009, 23-3140, 23-3218

United States Court of Appeals, Eighth Circuit

December 9, 2024

Submitted: September 25, 2024

Appeals from United States District Court for the Northern District of Iowa - Cedar Rapids

Before SMITH, ERICKSON, and STRAS, Circuit Judges.

ERICKSON, Circuit Judge.

A grand jury indicted Derek Mims ("Derek"), Elmer Mims ("Elmer"), David Belton, and Anton Whitney (collectively "the Members") with conspiracy to distribute pure methamphetamine in violation of 21 U.S.C §§ 841(a)(1), (b)(1)(A) &846. The indictment also charged Whitney with possession of a firearm by a drug user in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2), and it charged Belton with possession of a firearm by a felon and drug user in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2). Derek, Belton, and Whitney entered conditional guilty pleas, and a jury found Elmer guilty. The Members appeal the district court's^[1] denial of the motion to suppress evidence from wiretaps and the denial of the motion to recuse. Belton also appeals the denial of the motion to suppress evidence from a vehicle search. Elmer appeals the sufficiency of the evidence for the jury verdict and the length of his sentence. Derek and Whitney also challenge the length of their sentences.

I. BACKGROUND

Law enforcement's investigation of this drug trafficking operation included the use of confidential sources, controlled buys, and physical surveillance of the suspects. To obtain additional evidence not available through conventional investigatory methods, and to identify other potential members of the conspiracy, Bryan Furman, a Task Force Officer assigned to the Drug Enforcement Administration ("DEA"), applied for a series of wiretap warrants between February 2021 and February 2022. Judge Williams authorized the wiretaps.

When the Members moved to suppress the evidence obtained from the wiretaps, Judge Williams referred the motion to the magistrate judge for a Report and Recommendation. Judge Williams adopted the magistrate judge's R&R. Because Judge Williams authorized the wiretaps, the Members sought his recusal from determining the motion to suppress. The district court denied the motion to recuse and the motion to suppress.

As part of the investigation, law enforcement seized approximately thirty pounds of methamphetamine from a Volkswagen Passat transported on a car carrier.

Due to the suspicious circumstances of the transportation arrangement, the car hauler contacted law enforcement. Upon a cursory exterior inspection of the vehicle, law enforcement observed after-market modifications consistent with drug smuggling. The district court denied Belton's motion to suppress this evidence.

Derek, Elmer, and Whitney object to their sentences on various grounds. Derek contends the 4-level enhancement for an aggravating role in the offense under U.S.S.G. § 3B1.1(a) was improper. Elmer asserts the district court failed to give proper weight to his proffered mitigating factors. Whitney objects to the drug quantity attributed to him and claims he is entitled to a mitigating role adjustment under U.S.S.G. § 3B1.2.

II. DISCUSSION

A. Motions to Suppress

The denial of a motion to suppress is reviewed de novo, and the underlying factual findings are reviewed for clear error. United States v. Thompson, 210 F.3d 855, 858 (8th Cir. 2000).

1. Wiretaps

To obtain an order for the interception of wire communications, law enforcement must establish the following:

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d) except as provided in subsection (11), there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

18 U.S.C. § 2518(3).

Officer Furman completed the affidavits for the seven wiretaps challenged in this appeal. At the times of the execution of the wiretaps, Officer Furman had worked as a police officer for over twenty-seven years and as a Task Force Officer assigned to the DEA for over twelve years. He had participated in more than 100 controlled substance investigations and received training on multiple drug trafficking topics.

All Members assert that the DEA failed to establish the necessity requirement under § 2518(3)(c). The Members also assert that the DEA failed to establish one or more of the three types of probable cause required by § 2518(3) for one or more of the wiretaps.

a. Necessity

The necessity requirement is satisfied when law enforcement establish that "conventional investigatory techniques have not been successful in exposing the full extent of the conspiracy and the identity of each co-conspirator . . . ." United States v. Turner, 781 F.3d 374, 382 (8th Cir. 2015) (quoting United States v. West, 589 F.3d 936, 939 (8th Cir. 2009)). Law enforcement does not have to "exhaust every available investigative technique." United States v. Merrett, 8 F.4th 743, 749 (8^th Cir. 2021) (quoting United States v. Terrell, 912 F.3d 1125, 1129 (8th Cir. 2019)). A wiretap does not have to be the "last resort." Id. (citations omitted).

Boilerplate assertions of necessity are not fatal to the affidavit. United States v. Milton, 153 F.3d 891, 895 (8th Cir. 1998). Drug conspiracies contain common elements that render some conventional investigatory techniques ineffective in each case. Id.

Our review of the affidavits shows that each stated that law enforcement had used confidential sources, conducted controlled purchases, engaged in physical surveillance, executed search warrants, conducted interviews, performed or attempted to perform trash searches, used other electronic surveillance, employed mail cover requests, and attempted financial investigation. The affidavits also explained the effectiveness and limitations of these investigative techniques and why undercover agents and grand jury subpoenas were not used. There is no clear error in the district court's factual findings on necessity.

The arguments from Derek, Belton, and Whitney on necessity are that law enforcement should have tried more alternative investigative techniques prior to seeking the wiretaps and that some of the allegations are boilerplate. Elmer asserts that because the officers obtained some evidence using the investigative techniques described in the affidavits, law enforcement should have continued with those.

The affidavits describe many investigative techniques that law enforcement used prior to seeking the wiretaps and explained why other techniques would likely be ineffective for this conspiracy. Determining the identity of all members of a drug conspiracy may only be accomplished in many cases through wiretaps, but this common characteristic is not fatal to the affidavits. Milton, 153 F.3d at 895. Contrary to the Members' arguments, law enforcement is not required to exhaust every other possible investigative technique prior to seeking a wiretap warrant. Merrett, 8 F.4th at 749. The affidavits meet the necessity requirement of § 2518(3)(c). Id.

b. Probable Cause

The probable cause requirement in § 2518(3) is the same as the Fourth Amendment's probable cause requirement. Id. at 750. An appellate court is limited to determining whether the judge had a "substantial basis" for finding probable cause. Milton, 153 F.3d at 894 (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). The probable cause determination is based only on the facts contained in the affidavit. Id. Probable cause exists if the totality of the circumstances supports a fair probability that evidence of a crime will be found in the object to be searched. United States v. Keele, 589 F.3d 940, 943 (8th Cir. 2009).

Derek challenges the February 22, 2021 wiretap because it intercepted four of his communications regarding drug trafficking. The targets of this wiretap were three individuals who are not parties to this appeal. The evidence presented in the affidavit included a confidential informant who had purchased heroin from two of the targets and an admission to police from the third target that he sold heroin. The confidential source identified one of the phones in the affidavit, and law enforcement identified the other two phones through prior intercepted communications and inmate phone calls. The affidavit contained sufficient facts to support probable cause.

Derek also challenges the March 25, 2021 affidavit as lacking probable cause. However, Derek concedes, and the government acknowledges, that law enforcement intercepted none of his communications from this wiretap, so there is nothing to suppress.

In the May 21, 2021 affidavit, Officer Furman described the arrest of a coconspirator in possession of ten pounds of methamphetamine. This co-conspirator told law enforcement that Belton gave him the methamphetamine and...