United States v. Williams

827 F.3d 1134

United States of America, Appellee

v.Henry Brandon Williams, Appellant

No. 13-3019

C/w 13-3035

C/w 14-3012

United States Court of Appeals, District of Columbia Circuit.

Argued March 11, 2016

Decided July 8, 2016

Stephen C. Leckar, Edward C. Sussman, Washington, DC, and Julian S. Greenspun, all appointed by the court, argued the causes and filed the joint briefs for appellants.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Zia Faruqui, Assistant U.S. Attorneys. Elizabeth H. Danello, Assistant U.S. Attorney, entered an appearance.

Before: Rogers, Pillar d and Wilkin s, Circuit Judges.

Per Curiam:

TABLE OF CONTENTS

Introduction...1140

I. Facts and Prior Proceedings...1141

II. Wiretap Issues...1145

III. Lay Opinion Testimony...1155

IV. Wired Plea Agreement...1164

V. Acquitted Conduct in Sentencing...1165

Conclusion...1166

Introduction

Henry Williams, Gezo Edwards, and William Bowman appeal their convictions by a jury of participation in a cocaine distribution scheme between January 2009 and April 2011. Following a multiyear investigation conducted by the Federal Bureau of Investigation (“FBI”) and local police, Appellants and eleven other individuals were indicted on various federal drug offenses. Williams, Edwards, and Bowman were indicted for conspiracy to distribute and possess with intent to distribute cocaine. Bowman and Edwards also were indicted for multiple counts of using, carrying, and possessing a firearm during a drug trafficking offense. And Bowman was indicted for several counts of distribution of cocaine. Of the fourteen individuals named in the original indictment, only Williams, Edwards, and Bowman went to trial. The jury found all three Appellants guilty of drug conspiracy, found Bowman guilty of two firearms possession charges and three cocaine distribution charges, and acquitted Edwards of the firearms charges. Williams was sentenced to fifty-one months in prison, Bowman to forty-five years in prison, and Edwards to life imprisonment.

Appellants challenge their convictions on multiple grounds:

(1) They contend that a series of wiretaps used by the Government to uncover the criminal scheme at issue here were attained improperly, in violation of both the Fourth Amendment and relevant statutes, and that the district court erred in refusing to suppress all evidence gained from those wiretaps.

(2) Williams contends that the district court erred in admitting portions of the lay opinion testimony provided by FBI Special Agent John Bevington, who was involved in the underlying investigation.

(3) Williams argues that the district court improperly denied his motion for a judgment of acquittal, because there was insufficient evidence to support his conviction.

(4) Williams challenges the district court's denial of requests to instruct the jury on multiple conspiracies and to give a limiting instruction concerning Bowman's and Edwards's bad acts.

(5) Williams also contends that the district court erred in denying his motion to sever his trial from that of Bowman and Edwards.

(6) Bowman contends that the Government violated his Fifth Amendment due process rights by improperly “wiring” his plea agreement to a plea by Williams.

(7) Edwards contends that the district court violated his Fifth and Sixth Amendment rights by increasing his sentence based on his possession of a firearm even though the jury had acquitted him of that conduct.

We affirm the judgments of conviction, with one exception. We hold that the district court erred in admitting portions of Agent Bevington's lay opinion testimony and that this error was not harmless. Therefore, we reverse Williams's conviction and remand his case to the district court for further proceedings. We do not reach Williams's other challenges to his conviction other than to hold that the district court did not err in denying his motion for a judgment of acquittal.

I. Facts and Prior Proceedings

A.

In late 2009, a joint task force of the FBI and the District of Columbia Metropolitan Police Department began investigating a suspected cocaine distribution operation based in Washington, D.C. In an effort to uncover the nature, scope, and membership of that operation, investigating agents reviewed pen registers of telephone calls, arranged undercover drug buys, obtained information from confidential sources, and conducted extensive physical surveillance. After concluding that traditional methods alone were insufficient to investigate the operation, the Government sought, and eventually obtained, judicial authorization for wiretaps on three separate phone numbers associated with Bowman, who the Government suspected was a ringleader of the drug trafficking. See United States v. Edwards , 889 F.Supp.2d 1, 5–6 (D.D.C. 2012).

The first of those wiretaps, which the Government obtained on December 7, 2010, authorized the interception of wire communications over Target Telephone 1 (“TT1”). See id. at 5. Just a few weeks later, however, the Government terminated that wiretap due to lack of activity on the TT1 phone line. See id . The Government did not seek reauthorization of the TT1 wiretap. Instead, it applied for a separate wiretap on Target Telephone 2 (“TT2”). See id. at 5–6. Special Agent Timothy Pak submitted an affidavit in support of the TT2 wiretap, averring that Bowman was utilizing the TT2 phone line “to discuss and facilitate drug trafficking in the Washington, D.C. area.” Gov't's Jan. 13, 2011, TT2 Wiretap Affidavit (“Jan. 13 TT2 Aff.”) ¶ 7. Agent Pak's affidavit asserted that the TT2 wiretap was necessary because the Government's “[n]ormal investigative procedures,” id. ¶ 35—including the use of confidential sources and undercover officers, physical surveillance, trash covers, and pen registers—had failed to reveal the full scope and nature of the drug trafficking operation. See id. ¶¶ 35-48. On January 13, 2011, the district court authorized the TT2 wiretap for an initial thirty days. See Edwards , 889 F.Supp.2d at 6.

At the Government's requests, the district court granted three extensions of the TT2 wiretap. See id. The Government sought the first extension on February 14, 2011, relying on an updated affidavit from Agent Pak. That affidavit emphasized that reauthorization of the TT2 wiretap was necessary because, even after using the TT2 wiretap for a month alongside traditional investigative tools, agents had yet to uncover the full scope and membership of the drug trafficking operation. See Gov't's Feb. 14, 2011, TT2 Wiretap Affidavit (“Feb. 14 TT2 Aff.”) ¶¶ 34-55. The district court agreed and promptly reauthorized the TT2 wiretap for an additional thirty days. See Edwards , 889 F.Supp.2d at 6.

On March 11, 2011, the Government requested another extension of the TT2 wiretap. Agent Pak's March 11, 2011, affidavit did not name Edwards—another suspected leader of the drug trafficking operation—as a potential target of the TT2 wiretap reauthorization. In that affidavit, Agent Pak reiterated his belief that the TT2 wiretap remained necessary to fill evidentiary gaps left by normal investigative procedures. See Gov't's March 11, 2011, TT2 Wiretap Application (“Mar. 11 TT2 Aff.”) ¶¶ 25-41. The district court obliged and, on March 11, 2011, reauthorized the TT2 wiretap for another thirty-day period. See Edwards , 889 F.Supp.2d at 6.

The Government then sought and obtained a third and final thirty-day reauthorization of the TT2 wiretap on April 8, 2011, again based on Agent Pak's view that the TT2 wiretap was necessary to investigate the full scope of the drug trafficking operation. See id. ; Gov't's April 8, 2011, TT2 Wiretap Affidavit (“Apr. 8 TT2 Aff.”) ¶¶ 31-50.

On March 21, 2011, while the TT2 wiretap was still operational on its second extension, the Government sought an order authorizing the interception of wire communications to and from Target Telephone 3 (“TT3”), another phone number associated with Bowman. See Edwards , 889 F.Supp.2d at 6. As in his other affidavits, Agent Pak attested that the TT3 wiretap was necessary to determine the full nature and scope of the conspiracy, which called for further investigation notwithstanding the TT2 wiretap. See Gov't's Mar. 21, 2011, TT3 Wiretap Affidavit (“Mar. 21 TT3 Aff.”) ¶¶ 27-43. Notably, the Government's TT3 wiretap application was the first to name Edwards as a possible target of the wiretap. See id. ¶ 10(c). The district court authorized the TT3 wiretap, and, on April 15, 2011, reauthorized it for an additional thirty days. See Edwards , 889 F.Supp.2d at 6.

Between January and April 2011, investigating agents employed the TT2 and TT3 wiretaps to intercept numerous telephone calls between Bowman, Edwards, Williams, and several other members of the suspected drug trafficking operation. Toward the end of the investigation, agents executed search warrants on a storage unit and various residences connected to Bowman and Edwards and seized cocaine, drug paraphernalia, several firearms, and ammunition.

B.

The Government arrested Williams, Edwards, and Bowman along with several other individuals and indicted them for various drug-related offenses. The operative superseding indictment charged Williams, Edwards, Bowman, and several other men with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. The superseding indictment also charged Bowman and Edwards with two counts of using, carrying, and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1).¹ It charged Bowman with an additional count of firearm possession and three counts of unlawful distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).²

Appellants filed several pretrial motions during the early stages of the case. Williams moved to sever his trial from that of his co-defendants. Williams insisted that trying him alongside co-defendants facing much...