Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Nos. IP 99-59-CR-02, -03, -04, -05, -06, -08, -09, -10, -15, -17, -19-M/F and IP 99-74-CR-M/F-- Larry J. McKinney, Chief Judge.
Before Bauer, Rovner, and Evans, Circuit Judges.
The opinion of the court was delivered by: Evans, Circuit Judge
Thirteen defendants are before us in appeals *fn1 that grow out of a 1999 superseding indictment charging 22 defendants with conspiracy to possess with intent to distribute cocaine and cocaine base and with distribution of those drugs in quantities in excess of five kilograms, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In addition, there were several substantive counts of drug trafficking and weapons violations. Defendant Lynn Graves' case was severed because of his health problems. Eleven of those charged entered guilty pleas and eight were convicted after a 7-week jury trial. Byron Kinchelow was charged in a separate indictment and entered a guilty plea.
One of the major contentions in the appeals is that the evidence obtained from wiretaps, as well as searches of various residences, should have been suppressed. Other issues raised include whether 21 U.S.C. § 841(b) is constitutional; whether the evidence was sufficient to convict certain of the defendants of conspiracy; whether certain defendants should have been allowed to withdraw guilty pleas for various reasons; whether certain defendants were sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); and whether other errors were committed at sentencings. Tyrone Johnson's counsel filed a brief pursuant to Anders v. California, 360 U.S. 738 (1967).
The investigation of this case began in 1998 in the Brightwood neighborhood of Indianapolis, Indiana. Brightwood is a large urban neighborhood identified as one of the most drug-infested and dangerous areas of the city. Confidential informants provided information and made controlled buys of crack from defendant Bennie Houston. Pen registers and trap and trace devices were installed on Houston's telephone and on telephones of other persons identified by the informants. The telephone records revealed a series of frequent, brief conversations among Houston, Lee Williams, Robert Williams, Marlon McReynolds, and Kelvin Marion. Special Agent Frank Fabian of the FBI believed that the men were planning and executing drug transactions. Eventually, through the wiretaps and searches, it was learned that Lee Williams and Marlon McReynolds ran a drug operation and that Joseph Palmer also distributed cocaine in Brightwood. Palmer's distribution business depended on the ability of Lee Williams and McReynolds to acquire kilogram quantities of cocaine from their supplier and to resell it to him. In turn, Williams and McReynolds depended on Palmer to purchase cocaine.
In an interesting turn of events, Palmer and Williams engaged in a little price fixing--agreeing on the minimum price of cocaine in the neighborhood. Other defendants were also shown to have distributed cocaine for the conspiracy and to have assisted in processing powder cocaine into crack.
The evidence against the defendants came primarily from six court-ordered wiretaps. 18 U.S.C. § 2518. The first was a 30-day order, on December 4, 1998, for Houston's cellular phone. A 30-day order entered January 14, 1999, and extended for two 30-day periods (on February 12 and March 17, 1999) was entered for Lee Williams' cellular and residential phones. Finally, a 30-day order on February 4, 1999, extended for 30 days on March 5, 1999, was ordered for McReynolds' cellular and residential phones.
Section 2518 requires that each application for an interception of a wire, oral, or electronic communication include, among other things:
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[.]
Defendants Houston, Joseph Henderson, McReynolds, Robert Williams, Jamie Thomas, and Palmer contend that the applications did not establish the necessity for the wiretaps. The argument begins with an attempt to convince us to change the standard of review on the issue of necessity. Defendants urge that Ornelas v. United States, 517 U.S. 690 (1996), lends support to their claim that our review should be de novo, rather than deferential. We could stop here: it is well-established, both before and after the decision in Ornelas, that the standard of review we apply on the issue of necessity is abuse of discretion. This is clear, for instance, from United States v. Zambrana, 841 F.2d 1320 (7th Cir. 1988), through United States v. Adams, 125 F.3d 586 (7th Cir. 1997), all the way to our very recent decision in United States v. Ceballos, 2002 WL 1968309 (7th Cir. 2002). Even though the principle is well-established, the vigor with which it is attacked in the present case perhaps justifies our giving the issue additional attention.
In Ornelas, the Court considered the proper standard of review of findings that an investigatory stop was supported by reasonable suspicion and that a warrantless search of a car is supported by probable cause. Independent review was said to be necessary so appellate courts could "maintain control of, and . . . clarify, the legal principles." It would, the Court said, "unify precedent." At 697. Nevertheless, the Court said, "[W]e hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." At 699.
As we see it, the problem the defendants have with convincing us to change the standard of review on the necessity issue is that the requirements for establishing necessity are far less complex than the issues of reasonable suspicion or probable cause. In some sense, defendants' problem is not with the standard of review, but with the legal standard set out in our cases. We said in Zambrana that we will affirm a district court's finding that normal investigative procedures are not likely to be successful as long as there was "a factual predicate in the affidavit." At 1330. In United States v. Farmer, 924 F.2d 647, 652 (1991), we said that the "government's burden of proving 'necessity' is not high." In United States v. Thompson, 944 F.2d 1331, 1340 (7th Cir. 1991), we pointed out that the statute does not require "that other investigative procedures actually be implemented before an order may be issued for the interception of wire communications, but only that the success of other methods of investigation appear unlikely." Again in Ceballos, we stated that the government's burden is not high. We found necessity in Zambrana based on evidence that informants and undercover agents could not infiltrate the conspiracy in order to establish evidence to support a prosecution and in Adams because the application stated that physical surveillance might alert the subject to the fact that an investigation was in progress.
Given the nature of the inquiry into necessity, we are not convinced that the standard of review, which we have used for many years, should be changed. Having said that, in this case we find it clear under any standard of review that the government has made an adequate showing of necessity.
The affidavit in support of the December 4 wiretap on Houston's cellular phone set out the efforts made to use traditional methods of investigation. Physical surveillance had been conducted almost exclusively with an FBI aircraft and a minimal number of ground vehicles to avoid detection. Although physical surveillance had some value, the agents were not successful in gathering sufficient evidence of the drug storage locations, of quantities of drugs, and of the source of supply. Increased physical surveillance was also thought to increase the risk that the investigation would be noticed by the targets. The Brightwood section of Indianapolis is a 60-square-block area in which the alleged dealers are well-known. Outsiders, such as agents conducting surveillance, would be spotted. The affidavit also stated the obvious--that the use of interviews or grand jury subpoenas of alleged conspirators or their associates would tip them off. Search warrants had failed to reveal the source of supply. Additionally, the affidavit explained the difficulty ...