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United States v. Missick

decided: May 24, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICHARD ALGIE MISSICK, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. 88 CR 47, John D. Tinder, Judge.

Bauer, Chief Judge, Cummings and Easterbrook, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge

Defendant Richard Missick appeals from his convictions of conspiracy to import approximately eleven ounces of cocaine into the United States pursuant to 21 U.S.C. § 963 and possession of approximately one ounce of cocaine with the intent to distribute pursuant to 21 U.S.C. § 841(a)(1). The defendant was sentenced to imprisonment of ninety-six months on the first count and a concurrent term of twelve months imprisonment on the second count, with three years of supervised release on parole to follow. On appeal, defendant contends that the evidence presented at trial was insufficient to sustain the conviction and that District Judge Tinder erred in denying the defendant's motion to suppress tape-recorded evidence, warranting reversal of the judgment. Alternatively, defendant seeks remand for resentencing on the basis that the district court improperly departed from the Sentencing Guidelines. We Firm the conviction, but remand for resentencing in conformity with the Sentencing Guidelines.

I.

Missick's indictment resulted from an investigation into drug trafficking based on information provided by Robert Jason Settles, who agreed to cooperate with the government upon his arrest on February 19, 1988. Settles testified that he began selling cocaine in 1984, obtaining his cocaine from local sources until 1987, when he began taking trips to the Bahamas to purchase the drugs from a source known as "Cecil". On one such trip on September 8, 1987, Settles was unable to meet with Cecil and was instead introduced to Missick by an individual named Frederick, a/k/a "Sleepy". Settles purchased approximately four ounces of cocaine from Missick at that time and observed approximately seven kilos of cocaine in Missick's possession. Following the September trip, Settles made three more trips to the Bahamas to purchase cocaine from Missick in November and December of 1987 and February of 1988, the last of which resulted in his search and arrest by the U.S. Customs Service at the Indianapolis International Airport upon his return from the Bahamas on February 19, 1988. The government found approximately eleven ounces of cocaine in Settles' luggage. Settles informed the government and later testified that he purchased the cocaine from Missick in the Bahamas at the cement plant where Missick worked and that he informed Missick during the purchase that he would be bringing the cocaine into the United States.*fn1

Settles further related that his trips were financed by David Jan Fluhr and Philip D. Whisner. Specifically, Whisner had given Settles $1,000 for the delivery of one ounce of cocaine from the September 1987 trip. Whisner and Fluhr each made the same financial arrangements for the November and December trips in 1987. For the February 1988 trip, Whisner provided Settles with his wife's credit card to purchase airfare for Settles and his girlfriend, Kimberly King, totaling $400, as well as $600 in cash in return for one ounce of cocaine. Fluhr advanced Settles $3,000 for which Fluhr was to receive three ounces of cocaine with profits from any remaining purchases to be split between the two.

Alter his agreement to cooperate with the law enforcement officers, Settles allowed law enforcement agents to monitor telephone conversations with Whisner and Fluhr in which Settles arranged for surveillance of the deliveries of the cocaine obtained during the February 1988 trip. In the presence of government agents, Settles removed and packaged from the eleven ounces seed upon his arrest four one-ounce quantities for delivery to Fluhr, Whisner and Fluhr's girlfriend, Linda Susan Gross. The government retained the remaining seven ounces as well as a sample from each of the four one-ounce packages. The deliveries were to take place together at Settles' Indianapolis residence which was searched and equipped with listening devices. Government agents listened as Settles, Fluhr, Gross and King used some of the cocaine. Following the deliveries, Fluhr, Gross and Whisner were arrested upon leaving Settles' residence, the four ounces of cocaine were recovered and the three were eventually charged along with Settles in a five-count indictment. The indictment was comprised of one count of conspiracy to import cocaine into the United States, two counts of cocaine possession, and two counts of carrying a firearm during the commission of a drug-trafficking offense under 18 U.S.C. § 924(c),*fn2 and the case was consolidated with this case for trial on May 24, 1988.

The investigation into Settles' source in the Bahamas continued with his placing consensually monitored and recorded telephone calls to the telephone number he identified as that of his source, "Algie". The telephone number was registered to Richard Algie Missick of 55 Fleming Road, Freeport, Bahamas. Settles also provided the government with the recordings of incoming telephone calls and messages received at his residence.

Settles placed the first such call on March 7, 1988, to the telephone number registered to Missick. During this conversation, Settles and the defendant discussed the market price of hashish and the success of the cocaine sales from the quantity Settles purchased from Missick.

On April 14, 1988, Missick left two messages on Settles' answering machine and eventually held a conversation with Settles. Missick indicated in the conversation that he wished to "check Settles", which Settles testified to mean that Missick wished to check out Indianapolis before delivering a large quantity of cocaine. Missick inquired as to the market price for an "0" or ounce of cocaine to which Settles responded the price was between $900 and $2,000.

Two more conversations between Settles and Missick transpired and were recorded on April 16, 1988. During those conversations, Missick inquired as to how long it would take to drive from Cincinnati to Indianapolis and that he would bring a Peruvian "Oz" with him. Settles testified that a Peruvian "Oz" referred to an ounce of high quality cocaine.

Settles and Missick eventually arranged to meet in Covington, Kentucky, on April 17, 1988, and to travel to Indianapolis. Settles was fitted with a body recorder and transmitter and supplied with a rental car to meet Missick at his hotel. Agents listened as Settles met Missick and a female, and then as Missick pulled a one-ounce package of cocaine from behind a soda machine near his hotel room while advising Settles never to store the cocaine in the same place he stayed. Settles, Missick and the woman then proceeded in the rental car toward Indianapolis. During the drive, a discussion between Settles and Missick about their prior and future transactions, including a reference to "Sleepy", was recorded. Near Greensburg, Indiana, their car was stopped by drug enforcement agents and Missick was placed under arrest. A search of the car revealed a one-ounce package of cocaine to the left of Missick's seat, where Settles testified Missick had attempted to hide it when the car was stopped. The arresting agent also found in Missick's wallet a business card containing Settles' phone number. All of the above recorded messages and conversations were played for the jury.

A.

At the outset, Missick contends that the government failed to establish that the eleven ounces of cocaine seed from Settles upon his arrest were sold to him by Missick, a necessary element to sustain the charge of conspiracy to import cocaine. In a related argument, Missick proposes that as a matter of law, Settles' testimony should be given no weight since, among other things, Settles is an admitted drug user, sporadically employed, and cooperated with the government in this investigation in exchange for a lenient sentencing recommendation.

It is well established that a conspirator need not know all of the members or details of a conspiracy to be held responsible as a co-conspirator. Blumenthal v. United States, 332 U.S. 539, 556, 92 L. Ed. 154, 68 S. Ct. 248 . The government need only prove the existence of a conspiracy and a participatory link with the defendant. United Sites v. Dalzotto, 603 F.2d 642, 645 (7th Cir. 1981), certiorari denied, 444 U.S. 994, 100 S. Ct. 530, 62 L. Ed. 2d 425.

Read in the light most favorable to the government, the evidence clearly reveals a conspiracy between Fluhr, Whisner and Settles to import cocaine into the United States. Fluhr and Whisner provided Settles with money in advance of each trip to the Bahamas in return for the delivery of specified quantities of cocaine. As revealed by the recorded telephone conversations, Missick was aware of the conspiracy to import the cocaine into the United States for further distribution and the success of the sale of the imported quantities. Missick and Settles also discussed importing larger shipments of cocaine into the United States as well. It is not necessary that the defendant knew of the identities of Fluhr and Whisner, but sufficient that Missick knew that there were further participants in the distribution chain beyond Settles.

Defendant contends that the government failed to establish that the eleven ounces seized from Settles upon his arrest in February of 1988 were purchased from Missick. The government's forensic analytic chemist testified that the composition of the approximately eleven ounces seized from Settles, as well as the one ounce obtained from Missick on February 17, 1988, was L cocaine hydrochloride. Defendant urges that because the samples tested from the eleven ounces varied in purity and color, the government failed to prove that the eleven ounces of cocaine seized from Settles were derived from the single source of Missick. This observation is without merit since the cocaine was tested after its controlled delivery by Settles to Fluhr, Gross and Whisner. As reflected in the recorded conversation during Settles' delivery of the cocaine, the cocaine was cut and a portion was consumed by Settles, Gross, Fluhr and King at Settles' residence. The four ounces of cocaine packaged by Settles for the controlled deliveries were recovered from Gross and Whisner as they left Settles' residence. It is reasonable that the jury could attribute the variations in purity and color among samples to the consumption process rather than the derivation of the cocaine from multiple sources.

Defendant's argument that Settles' testimony should not be given any weight as a matter of law because Settles was an admitted drug user, lacked regular employment and was cooperating with the government's investigation lacks merit as well. Issues of credibility are questions for the trier of fact. United States v. Wheadon, 794 F.2d 1277, 1281 (7th Cir. 1986), certiorari denied, 479 U.S. 1093, 94 L. Ed. 2d 161, 107 S. Ct. 1307. Settles' testimony regarding his trips to the Bahamas was independently corroborated by his travel calendars, flight manifests reviewed by Special Agent Dill and testimony from Ms. Cindy Weir, a representative of the agency which booked the last three of Settles' trips. Further, the recorded telephone conversations between Missick and Settles included discussion by Missick of prior and future dealings with Settles. Settles' testimony was without doubt sufficiently corroborated to allow the jury to consider its content together with Settles' demeanor in open court in reaching its verdict.

B.

Defendant's second ground for appeal concerns whether the district judge erred in admitting tape recordings of conversations between Missick and Settles made with Settles' consent. Defendant offers the convoluted argument that the tape recordings were improperly made without authorization of the Bahamian government in violation of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1801, et seq., and 18 U.S.C. § 2511(2)(a)(ii)*fn3 and erroneously admitted into evidence in violation of 18 U.S.C. § 2515.*fn4 Defendant does not dispute the fact that the tape recordings were made with the express consent of Settles.

Defendant asserts that the tape recordings made by the government are subject to the provisions of 18 U.S.C. ...


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