Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Young

United States Court of Appeals, Sixth Circuit

January 26, 2017

United States of America, Plaintiff-Appellee,
v.
Chris Young (14-6081); Alto Parnell (14-6451); Brian Vance (15-5045); Demetrius Duncan (15-5738), Defendants-Appellants.

          Argued: October 19, 2016

         Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:11-cr-00012-Kevin H. Sharp, Chief District Judge.

         ARGUED:

          James G. Thomas, NEAL & HARWELL, PLC, Nashville, Tennessee, for Appellant in 14-6081.

          William Nolan, UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant in 14-6451.

          Manuel B. Russ, Nashville, Tennessee, for Appellant in 15-5045. Benjamin H. Perry, Nashville, Tennessee, for Appellant in 15-5738. Finnuala K. Tessier, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          James G. Thomas, Andrew A. Warth, NEAL & HARWELL, PLC, Nashville, Tennessee, for Appellant in 14-6081. William Nolan, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant in 14-6451.

          Manuel B. Russ, Nashville, Tennessee, for Appellant in 15-5045.

          Benjamin H. Perry, Nashville, Tennessee, for Appellant in 15-5738. Finnuala K. Tessier, Sunny A.M. Koshy, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

          Before: KEITH, BATCHELDER, and CLAY, Circuit Judges.

          OPINION

          CLAY, Circuit Judge.

         Defendants Chris Young ("Young"), Demetrius Duncan ("Duncan"), Alto Parnell ("Parnell'), and Brian Vance ("Vance") (collectively, "Defendants") appeal their convictions and sentences (collectively, "judgments") entered by the United States District Court for the Middle District of Tennessee for conspiracy, inter alia, to distribute and possess with intent to distribute 500 grams or more of cocaine and 280 grams or more of cocaine base. The district court sentenced Vance to 200-months' imprisonment, and sentenced Young and Parnell each to two concurrent terms of mandatory life imprisonment without the possibility of parole, and Duncan to mandatory life imprisonment without the possibility of parole.

         For the reasons that follow, we AFFIRM the district court's judgments for all four Defendants.

         I. BACKGROUND

         This case arises out of a multi-year investigation into a large drug-trafficking organization in Clarksville, Tennessee. The leader of the organization, Robert Porter ("Porter"), distributed large quantities of cocaine to Vance, Young, and others. Vance distributed powder and crack cocaine to Parnell, Duncan, and others, using a stash house in the Summit Heights housing projects and a cookhouse nearby. Parnell and Duncan then sold the cocaine and crack cocaine to Clarksville residents. Federal agents of the Drug Enforcement Agency ("DEA") obtained wiretap applications and search warrants, which provided the government with enough evidence to arrest twenty-six individuals associated with the drug trafficking organization, including Defendants.

         Porter was in the process of selling thousands of dollars of cocaine to Young when he was arrested. The morning after Porter's arrest, agents executed search warrants and seized drugs, guns, cash, and drug paraphernalia from the homes of Duncan, Vance, and others. In total, thirty-six individuals were charged in an indictment. Thirty-three of those individuals pleaded guilty, including Vance, who was sentenced to a below Guidelines term of 200-months' imprisonment. Duncan, Young, and Parnell went to trial, and were each found guilty of multiple offenses and sentenced to mandatory terms of life imprisonment without parole.

         Procedural History

         A. Indictment

         On January 12, 2011, a grand jury charged Vance, Duncan, Parnell, and Young in a four-count indictment with conspiracy, among other things, to distribute and possess with intent to distribute controlled substances, including 500 grams or more of cocaine and 280 grams or more of cocaine base, otherwise known as crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One). Vance was also charged with possession with intent to distribute crack cocaine, in violation of § 841(a)(1) (Count Two).

         B. Superseding Indictment

         On April 17, 2013, a grand jury returned a twenty-two count superseding indictment charging, among other things, Duncan, Parnell, and Young with conspiracy to distribute and possession with intent to distribute 500 grams or more of cocaine and 280 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2 (Count One).

         Vance was also charged with being an accessory after the fact to a Hobbs Act violation and to possession and discharge of a firearm in furtherance of a crime of violence resulting in death, in violation of 18 U.S.C. §§ 1951, 924(c), and 924(j) and 18 U.S.C. §§ 2 and 3 (Count Eight) and conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951 and 2 (Count Nine).

         Duncan and Parnell were separately charged with possessing cocaine and crack cocaine within 1, 000 feet of a public housing authority with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 860 and 18 U.S.C. § 2 (Count Four). Duncan was individually charged with: possession of cocaine base and marijuana with intent to distribute, in violation of § 841(a)(1) (Count Sixteen); possession of a firearm in furtherance of a drug trafficking offense, in violation of §§ 841(a)(1) and 846 and § 924(c) (Count Seventeen); and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (Count Eighteen). Young was also charged separately with: attempted possession of cocaine within 1, 000 feet of a school with intent to distribute, in violation of §§ 841(a)(1), 846, and 860 (Count Eleven); possession of a firearm in furtherance of a drug trafficking offense, in violation of §§ 841(a)(1) and 846 and § 924(c) (Count Twelve); and being a felon in possession of a firearm, in violation of §§ 922(g)(1) and 924 (Count Thirteen).[1]

         C. Vance Pleads Guilty to Remaining Charges

         Vance pleaded guilty to the conspiracy and possession charges on April 15, 2013. On June 10, 2013, Vance pleaded guilty to both Hobbs Act counts, and on September 16, 2013, the district court sentenced Vance to a 200-month term of imprisonment and a five year term of supervised release.

         D. Trial and Sentencing

         On August 6, 2013, trial commenced on the remaining counts for Young, Duncan, and Parnell. The government provided evidence in the form of testimony from five co-conspirators and a witness to a warranted search of Duncan's residence, testimony from law enforcement agents, more than two hundred intercepted phone conversations between co-conspirators, surveillance footage, and evidence seized during the warranted searches and arrests. The jury convicted Duncan, Parnell, and Young on all counts, except for Duncan, who was acquitted on Count Four.

         On September 28, 2014, the district court sentenced Young to concurrent mandatory terms of life imprisonment on the drug-related offenses (Counts One and Eleven). On November 24, 2014, the district court sentenced Parnell to concurrent mandatory terms of life imprisonment on Counts One and Four. On April 27, 2015, the district court sentenced Duncan to a mandatory term of life imprisonment on Count One.

         Statement of Facts

         Robert Porter, the leader of the Vice Lords drug organization, trafficked large amounts of cocaine in Clarksville, Tennessee. Porter obtained the cocaine from suppliers, such as Quinice Cross and Gregory Brooks ("Brooks"). Brooks testified at trial that he supplied Porter with 10 kilograms of cocaine between 2009 and 2010, with each kilogram costing between $30, 000 and $35, 000. Porter would then supply Vance, Young, and others with cocaine. Donnie Patterson ("Patterson"), a co-conspirator, testified at trial that Porter would supply him with a quarter to half a kilogram of cocaine about twice a week. Patterson also testified that he saw Porter supply Vance with cocaine. Dmitri Johnson ("Johnson"), another co-conspirator, testified that he saw Porter cook powder cocaine into crack cocaine at his home on a regular basis, and that he witnessed Porter supply crack cocaine to Young at least twice.

         A. Young's Involvement in the Conspiracy

         Intercepted telephone conversations between Young and Porter and surveillance footage revealed that Porter had provided Young with tens of thousands of dollars of cocaine for distribution. For instance, on September 12, 2010, Young told Porter that he was "waitin on one more person" and with that he should have "fifty five all together, " or $5, 500, for the cocaine that Porter had provided him. (Appendix A GX 98a.)

         Porter also taught Young how to cook crack cocaine. During a long phone call on September 18, 2010, Young discussed with Porter his concern that he was not producing all of the crack he could be, due to his inability to properly cook the powder. "I clearly seen when I knocked it down that it was not all that it was supposed to be . . . [It] wasn't nothin but twelve but I'm wonderin like why and how did it be like that." (Appendix A GX 136a.) Porter then told Young that he was not "trippin . . . I still [mess] up too . . . so that aint your first time that aint goin to be your last." (Id.)

         On December 9, 2010, a federal magistrate judge issued a search warrant. On December 10, 2010, agents executed the warrant for Porter while he was in the middle of selling cocaine to Young at a gas station. Agents located a cell phone inside Porter's car. They also found bundles of cash, totaling $10, 190 underneath where Young was sitting in the vehicle and from his pants pocket. Additionally, the agents uncovered a loaded handgun, as well as a digital scale from the center console of Young's car. The scale was covered in white residue that later tested positive for cocaine. During trial, Young stipulated that he unlawfully possessed the loaded gun.

         Although not directly related to Young's involvement in the conspiracy, agents recovered 192 grams of cocaine and 159 grams of crack cocaine from the center console of Porter's vehicle during the arrest.

         B. Vance's Involvement

         Vance, the highest-ranking member of the gang out of the four Defendants in this appeal, sold the cocaine he purchased from Porter to Duncan, Parnell, and others. On December 11, 2010, a search warrant was executed at Vance's residence, where agents seized $11, 000 from a safe, 90 grams of crack cocaine, marijuana, a holstered and loaded firearm, ammunition, gun cases for the holstered firearm, gun cases for a pistol, and boxes for an assault rifle. Testimony at the trial also revealed that Vance cooked powder cocaine into crack cocaine at the residence of Jevita Banister on Happy Hollow Road.

         C. Parnell's Involvement

         Parnell usually obtained cocaine directly from Vance; however, on August 27, 2010, Vance told Parnell over an intercepted telephone conversation that he obtained his drugs from Porter, and Parnell responded that he had "figured that." (Appendix A GX 73a.)

         On various occasions, Vance and Parnell were worried that they and their fellow gang members were on the verge of being caught by the authorities. For instance, on August 6, 2010, Parnell telephoned Vance to warn him about the police "vice truck, the K-9 truck" and how it had pulled someone over on Thompkins Lane. (Appendix A GX 27a.) In another conversation on October 9, 2010, Vance called Parnell to inform him that he could not come over because he was "packed" and "too dirty." (Appendix A GX 163a.) In that same conversation, Parnell asked Vance how he did, or how he "pull[ed]" last night, " and Vance responded that he "had nothing but a quarter, " and that he "put 21 in and got 19, the shit look like [ ] if you crush it up it look . . . real funny, crunchy looking but it jumped though . . . and the powder real real hard." (Id.) On November 20, 2010, Vance and Parnell discussed how law enforcement arrested other members of the conspiracy and how they "almost caught [Parnell] walking out of Toya's crib [ ] with an ounce of powder on [him]." (Appendix A GX 191a.) Vance and Parnell also discussed enlisting younger individuals to sell the cocaine and crack cocaine for them: "They gotta sell it. They got to." (Id.) Vance then stated, "[I]f we fall it's a [w]rap . . . [w]hat they gonna do . . . without me or you?" (Id.)

         D. Duncan's Involvement

         Duncan usually obtained crack cocaine from Vance in one-ounce quantities (28 grams), which he then sold to others. On October 29, 2010, Duncan called Vance to ask about buying some "whip" because he had "three plays." (Appendix A GX 175a.) Testimony from law enforcement agents at trial revealed that "whip" stands for crack cocaine, and a "play" is a customer. On November 17, 2010, Duncan and Vance discussed how much cocaine Duncan had purchased from Vance and then sold to clients, and how much Vance was storing at Duncan's. (Appendix A GX 187a) (Vance stated to Duncan that "you had nine, you sold one that made eight, and I put three with it, [t]hen I took it, I took four, so theres [sic] seven of that there . . . seven whip."). Duncan obtained cocaine and crack cocaine from other members of the conspiracy. For example, on November 24, 2010, when Duncan asked Vance for nine ounces (255 grams) of cocaine powder to cook into crack cocaine, Vance told him to call Young Money (another co-conspirator). (Appendix A GX 197a). Duncan was also aware that Porter was Vance's supplier. For instance, on September 7, 2010, Duncan spoke with Vance on the telephone and asked if Porter was still selling cocaine and crack cocaine by the ounce. (Appendix A GX 89a).

         On December 11, 2010, agents executed a search, pursuant to the search warrant issued December 9, 2010, of Duncan's home. During the search, agents found a Smith & Wesson .40 caliber handgun, three loaded magazines for the .40 caliber handgun, and a gun holster in Duncan's bedroom, right near a $902 stack of cash. Duncan stipulated at trial that he was a convicted felon prohibited from possessing a firearm.

         II. DISCUSSION

         Defendants raise numerous challenges to their convictions and sentences. Specifically, Duncan argues that the district court erred in denying: (1) his motions to suppress the communications intercepted from Vance's phone, and the drugs, guns, and cash seized from Duncan's home pursuant to the search warrant; and (2) his request for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

         Parnell argues that the district court erred in admitting: (1) co-conspirator statements; (2) a law enforcement agent's testimony concerning background evidence about the investigation; (3) cooperating witness testimony about their guilty pleas; (4) evidence of gun crimes committed by co-conspirators and co-defendants; and (5) evidence of other crimes committed in furtherance of the conspiracy.

         Young, Parnell, and Duncan argue that the district court erred in: (1) admitting a law enforcement agent's testimony interpreting the wiretapped conversations during trial; (2) failing to give a cautionary jury instruction addressing the dual roles of the testimony given by the case agents; (3) declining to strike 21 U.S.C. § 851 informations; and (4) concluding that the Eighth Amendment does not prohibit a term of life imprisonment for a drug felon convicted of conspiracy to distribute 500 grams or more of cocaine and 280 grams or more of crack cocaine.

         Finally, Parnell and Vance challenge their respective sentences.

         A. Motions to Suppress

         Duncan challenges the district court's denial of motions to suppress filed by Vance and Duncan with regard to the wiretap for Vance's phone, which intercepted calls between Vance and Duncan, in addition to subsequent wiretap applications and renewals relying on that wiretap application.

         1. Waiver

         First and foremost, we conclude that Duncan has waived his challenge to the denial of the motions to suppress. Duncan merely cites to the governing rules and relevant case law on Fourth Amendment jurisprudence and wiretap applications, without citations to the record explaining why there was no probable cause. Duncan attempts to provide justification for his perfunctory argument by explaining that the "word limitations of the instant Brief do[] not allow for the parsing of the deficiencies in the 16 authorizations at issue in this appeal." (Duncan Br. 34.) Duncan then points to the "respective motions [to suppress] in the record" for the "particularized analysis relevant to each application." (Duncan Br. 34.) Federal Rule of Appellate Procedure 28(a)(8)(A) provides that the argument section of an appellate brief must contain "appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies." Fed. R. App. P. 28(a)(8)(A).

         Here, Duncan cites to the parts in the record where the motions to suppress are located, and also to the part where the district court denied them. However, Duncan does not point to any findings in the record which would demonstrate how the district court erred or why the wiretap application lacked probable cause. See United States v. Meda, 812 F.3d 502, 519 (6th Cir. 2015) (holding argument in brief that was not supported by citation need not be addressed by the court pursuant to Federal Rule of Appellate Procedure 28(a)(8)(A)); see also Dog Pound, LLC v. City of Monroe, Mich., 558 F.App'x 589, 594 (6th Cir. 2010) (holding that appellant waived argument on appeal by failing to "advance a single argument as to why the judgment of the district court . . . was in error, " and the "district court's reasoning [was not] brought into question.").

         Even if Duncan did not waive this argument, his challenge to the denial of the motions to suppress would still fail because the wiretap application established probable cause that surveillance of Vance's telephone would reveal communications concerning drug trafficking and necessity for the warrant.

         2. Standard of Review

         When reviewing a district court's decision on a motion to suppress, we review the lower court's findings of fact for clear error and its conclusions of law de novo. United States v. Lyons, 687 F.3d 754, 762 (6th Cir. 2012) (citing United States v. Howard, 621 F.3d 433, 450 (6th Cir. 2010)). A factual finding is clearly erroneous when the Court, on reviewing the evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999) (citation omitted). Whether a search and seizure was reasonable under the Fourth Amendment is a question of law. United States v. Gunter, 551 F.3d 472, 479 (6th Cir. 2009) (citing United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003)). Because the district court denied the motions to suppress, we review all evidence in the light most favorable to the government. United States v. Long. 464 F.3d 569, 572 (6th Cir. 2006).

         3. Analysis

         a. Wiretap of Vance's Phone

         Duncan first argues (1) that the affidavit in support of the wiretap application failed to establish probable cause, and (2) the wiretaps were not necessary to the investigation because the investigation's objectives could have been satisfied without resorting to such an extraordinary surveillance technique.

         In order to conduct electronic surveillance using a wiretap, federal law enforcement officials must secure authorization by making an application containing "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). This provision, commonly referred to as the "needs statement provision, " was designed to insure that wiretapping is not resorted to in a situation where traditional investigative techniques "would suffice to expose the crime." United States v. Alfano, 838 F.2d 158, 163 (6th Cir. 1988) (citation and internal quotations marks omitted). "[W]hat is needed is to show that wiretaps are not being routinely employed as the initial step in criminal investigation." Id. (citations and internal quotation marks omitted). A district court has "considerable discretion" in determining whether the requirements of § 2518(1)(c) have been satisfied. United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002) (citation and internal quotation marks omitted).

         i. Probable Cause in Affidavit

         We hold that the affidavit underlying the wiretap application for Vance's phone established probable cause that a wiretap of Vance's phone would lead to evidence relating to the Porter drug trafficking organization. The affiant, Agent Whitsett, noted that he had participated in the investigation of the Porter drug trafficking organization since 2006 and was familiar with the facts and circumstances of the investigation due to his oral and written communications with other DEA agents, other federal, state and local law enforcement agencies, and confidential informants. Agent Whitsett provided information specifically relating to Vance's telephone, i.e., Target Telephone 2 ("TT2"). Agent Whitsett stated that in the course of interceptions of Target Telephone 1 ("TT1"), a phone used by known drug trafficker, Donnie Patterson, agents verified that Patterson called TT2 from TT1 after a confidential informant asked Patterson if he had any drugs to sell.

         Agent Whitsett confirmed that Vance, also known as "Bird, " was using TT2 to talk to Patterson about availability and pricing for controlled substances. (R. 752, Agent Whitsett's Wiretap Affidavit for Vance's Telephone, PageID# 2712-13.)[2] Agent Whitsett also noted that Patterson called Vance on TT2, in which Vance references that he is "in the kitchen." (Id. at 2714.) Agent Whitsett discussed in the affidavit that "in the kitchen" or "cooking" are code terms for manufacturing crack cocaine, and that Vance's reference to one of these terms meant that he was in the kitchen making crack cocaine. (Id.) On another phone call, Patterson called Vance and discussed the arrests of fellow drug dealers and Vance's run from police when he was "loaded, " which means, according to Agent Whitsett, that Vance was carrying controlled substances on his person. (Id. at 2715-19.)

         In another phone call between Vance and Patterson, Patterson asks Vance for money, and Vance replies that Vance "can get [Patterson] five thousand if [he] need[s] it." (Id. at 2720-21.) Agent Whitsett notes that Vance is letting Patterson know that he has large sums of money on him. Agent Whitsett also provides information in the affidavit on prior drug investigations involving Vance for crack cocaine and manufacturing of crack cocaine offenses. Additionally, Agent Whitsett described TT2's toll analysis which showed an "extreme frequency" of calls to and from TT2 over a short period of time, and contact with telephone numbers associated with other known or suspected controlled substance traffickers. Agent Whitsett described both of these observations as indicators that the phone is being used to traffic controlled substances.

         ii. Wiretap was Necessary

         Second, we find that the government met their burden of demonstrating necessity. The government "is not required to prove that every other conceivable method has been tried and failed or that all avenues of investigation have been exhausted." Alfano, 838 F.2d at 163. We have summarized the "necessity requirement" as follows:

All that is required is that the investigators give serious consideration to the non-wiretap techniques prior to applying for wiretap authority and that the court be informed of the reasons for the investigators' belief that such non-wiretap techniques have been or will likely be inadequate.

Id. at 163-64. This is precisely what the government did in this case. Agent Whitsett stated in the wiretap application that the agents used telephone toll records and pen register data as an investigative tool; however, he noted that "[t]his technique . . . only will provide agents with a list of numbers called and will not establish the identities of the persons called or the content of the conversations . . . . Such information is most productive when used in conjunction with intercepted conversations." (R. 752 at 2732.) Moreover, the affiant noted that "the information gleaned from [these] telephone records alone has not enabled agents to identify additional Target Subjects, i.e., the source(s) of supply, or ascertain the inner-workings of the organization." (Id.)

         Additionally, with regard to the use of confidential informants and cooperating co-defendants, Agent Whitsett stated that "[e]ven though confidential sources and cooperating defendants provide valuable information and assistance, [the] [a]ffiant believes that such information is limited and the continued use of confidential sources and or cooperating defendants, even combined with other conventional investigative techniques, would not result in the dismantlement of the [Porter Drug Trafficking Organization] PDTO." (Id. at 2737.) Agent Whitsett also noted that, with regard to the use of undercover agents as another investigative technique, "[m]embers of large-scale drug trafficking organizations are particularly suspicious of individuals with whom they are not familiar." (Id.) Agent Whitsett stated that "it is extremely unlikely that an undercover agent could successfully infiltrate [the PDTO]" at such a high level. (Id.) Moreover, the case agent noted that they had asked a confidential informant familiar with Vance to assist law enforcement in targeting Vance, but that he was unwilling to do so. (Id.) The affiant also mentioned how Grand Jury subpoenas would reveal the investigation and expose the prosecution before it was necessary to do so, and how physical undercover surveillance, especially in concentrated residential areas, is often impossible as there is a high risk that the surveillance will be spotted by the Target Subjects. (Id. at 2730-31.)

         The district court, after holding a hearing on the motion to suppress, found that there was probable cause for authorization of the wiretaps. The court found that there was a substantial basis to conclude that there was an on-going conspiracy that had been in existence for many years, and thus, the "[wire]taps and the reasons therefor[e] are current and not stale." (R. 2374, Wiretap Hearing, PageID# 12343.) The district court further found that the case agent met the burden of necessity because he demonstrated that "traditional techniques have been considered or employed such as confidential information, physical surveillance, pen registers, toll information, financial investigations, Grand Jury subpoenas, undercover agent and tracking devices, " which "clearly evidence[d] the limitations and the need for wiretap surveillance in order to complete the investigation of the conspiracy." (R. 2374 at 12345-46.)

         Duncan argues that the government could have "take[n] down the [ ]PDTO during the time period they were readily using CIs, " but did not do that "in order to stockpile evidence that ultimately lead to the request for wiretaps." Duncan also argues that the stated wiretap objective was to learn the identity of the leaders and sources, but law enforcement knew the identity of these individuals for years prior to the wiretap, thus, this objective could have been met without resort to wiretapping. We are not persuaded by Duncan's arguments because the stated objective of the investigation was to dismantle the drug trafficking organization, and wiretapping individuals alleged to be involved in the conspiracy certainly furthered that objective. Thus, we hold that the district court did not err in denying the motion to suppress because the affidavit gave a substantial basis for finding probable cause and necessity.

         b. Search of Duncan's Residence

         Duncan next argues that the district court erred in denying his motion to suppress the evidence obtained from the search of residence because: (1) the search warrant was without probable cause because it relied on communications from the unlawful wiretaps; (2) the affidavit underlying the search warrant possessed no information that drug trafficking occurred at the residence: (3) the affidavit possessed no information that Duncan resided at the residence searched; (4) the affidavit fails to establish any reasonable nexus between drug trafficking and the residence searched; and (5) the affidavit relied on stale information

         To determine whether probable cause for a search exists, a judge issuing a warrant must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238-39 (1983). The duty of a reviewing court is to insure that the magistrate judge had a "substantial basis" for concluding that probable cause existed. Id. (citation and internal quotation marks omitted). In order to establish probable cause, there must be a nexus between the place to be searched and the evidence sought. See United States v. Laughton, 409 F.3d 744, 747 (6th Cir. 2005) (citations omitted).

         We conclude that the issuing judge had a substantial basis for concluding that probable cause for a search existed. As mentioned above, the wiretaps were not unlawful. Thus, evidence obtained pursuant to the intercepted communications can be relied upon by the issuing judge to conclude that probable cause existed for the search of the residence.

         Numerous wiretapped phone calls between Duncan, Porter, Vance, and other members of the conspiracy demonstrate that Duncan resides at 964 Woody Hills Drive, and used the residence to store cocaine, proceeds from the sale and/or receipt of narcotics trafficking, narcotics trafficking paraphernalia, and firearms.

         The affidavit identified Duncan as a ranking member of the Vice Lord street gang who supplied cocaine to numerous Vice Lord gang members. The wiretaps identified a number of locations being used to store cocaine and marijuana along with cash from the sale of controlled substances. One of the locations was 964 Woody Hills Drive, Clarksville, Tennessee. GPS on one of Vance's wiretapped telephones placed Vance at the Woody Hills Drive location when he stated he was at "Whirley's, " which is a moniker used to refer to Duncan by the members of the conspiracy.

         For instance, on September 13, 2010, Porter called Duncan and in that phone conversation, Duncan informed Porter that he had $600.00 with which he wished to purchase cocaine from Porter. On October 29, 2010, Duncan called Vance and stated that he had "about three plays, " that Vance had "no whip, " and that Vance would have to "get to it." (R. 403, Search Warrant Application, PageID# 177-78.) The affiant stated that the term "play" is used by crack cocaine traffickers to describe a customer, the term "whip" refers to crack cocaine." (Id.)

         On November 21, 2010, Vance, using a wiretapped telephone, made a call to Duncan, in which Vance stated that he "left [his] strap over there." (Id. at 178.) Duncan then responded, "[O]ver at my house?, " to which Vance responded in the affirmative. (Id.) Vance then stated that he was going to take Duncan's gun that night, and Duncan responded that he did not want Vance to take his gun because he would not stay at his residence without a firearm. The affiant believed that this call showed that both Vance and Duncan are regularly armed with a firearm, that Vance left his firearm at Duncan's residence, and that Duncan generally has his firearm at that residence.

         The affidavit also stated that on April 2, 2010, Duncan received a traffic ticket and gave his address as 964 Woody Hills Drive. The affidavit also establishes that electric service at that location is in the name of Mary A. Duncan. When Duncan was arrested on September 21, 2008, he had a tattoo "Mary Ann Duncan" on his back and gave 964 Woody Hills Drive as his address. (Id.)

         Together, these interceptions, along with others noted in the affidavit, establish probable cause for a search of Duncan's residence. See United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008) ("[T]he courts should take a totality of the circumstances approach in their review of the affidavit, and the courts may afford considerable weight to the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found and [the courts are] entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the crime and type of offense.") (citations and internal quotation marks omitted). In Williams, we joined our sister circuits that have held in "cases involving a variety of suspected crimes, that an issuing judge may infer that a criminal suspect keeps the 'instrumentalities and fruits' of his crime in his residence." 544 F.3d at 688 (collecting cases). Here, it was reasonable for the issuing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.