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United States v. Maggard

United States Court of Appeals, Seventh Circuit

August 4, 2017

United States of America, Plaintiff-Appellee,
Donald Maggard, David Bell, Jeremy Jackson, and Dorothy Neeley, Defendants-Appellants.

          Argued June 2, 2017

         Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:14-cr-00096 Sarah Evans Barker, Judge.

          Before Flaum, Easterbrook, and Kanne, Circuit Judges.


         The government brought charges related to a methamphetamine-distribution conspiracy in southern Indiana against nineteen people, fifteen of whom pled guilty to at least one charge. The remaining four-the defendants-appellants here-went to trial. A jury convicted them.

         The defendants raise five arguments on appeal-three concerning the district court's denial of the defendants' pretrial motions and two concerning the sufficiency of the evidence considered by the jury Because the court did not err in denying the pretrial motions and because the evidence that the government presented at trial was sufficient, we affirm.

         I. Background

         The defendants in this case are Donald Maggard, David Bell, Jeremy Jackson, and Dorothy Neeley. In one way or another, they were all involved in a vast methamphetamine-distribution conspiracy in and around North Vernon, Indiana from October 2013 through May 2014. Neeley, who lived in Indianapolis, supplied much of the methamphetamine that she and Maggard then distributed to other dealers in the area, including Bell and Jackson. The defendants sold much of that methamphetamine in Maggard and Jackson's home neighborhood, Country Squire Lakes-a North Vernon subdivision engulfed in drug activity.

         Maggard regularly dealt methamphetamine to Bell, who then resold that methamphetamine to other customers. On at least some of these deals, Bell acted as a middleman, locating buyers for Maggard who would purchase methamphetamine from his suppliers for Bell's buyers. Maggard and Bell often discussed the details of these transactions on the phone and through text messages. And on at least one occasion, Bell joined Maggard on his trip to purchase methamphetamine from a supplier.

         Neeley was Jackson's primary source for methamphetamine. On April 5, 2014, Neeley sold Jackson a particularly potent batch of capsulated methamphetamine that ultimately killed Jackson's wife Jessie. Jessie's death became a focal point of the government's case in the defendants' trial, so the details of that day are important for this appeal.

         Early that day Jackson and Jessie consumed some of Neeley's methamphetamine, and Jessie overdosed. A few hours later, Amanda Hadley and Christina Rodgers-two of Jackson's friends who were visiting his home-noticed that Jessie was sweating and convulsing in bed. Because Jackson was not assisting her, Hadley and Rodgers went into the bedroom and applied an icepack to her forehead. Jackson then asked Hadley and Rodgers to leave the room, so he could have sex with Jessie. Hadley and Rodgers complied, leaving Jackson's home.

         Shortly thereafter, Jackson texted Desiree Booker, another friend, about Jessie's condition. Jackson sent Booker a photograph of Jessie, who was now unconscious. Two hours later, Booker and her girlfriend, Kylie Day, arrived at Jackson's home. Jessie was still in bad shape, yet Jackson was not tending to her. Instead, he was playing video games and listening to music. Jackson explained to Booker and Day that he and Jessie had taken a strong dose of methamphetamine and that he believed that Jessie was faking an overdose. When Booker and Day asked if they could take Jessie to the hospital, Jackson refused. Booker and Day then left.

         Jackson then called Hadley and Rodgers, asking them to "come over here and help [him] before [he] knock[ed] this bitch out, " referring to Jessie. (R. 998 at 86.) Hadley and Rodgers returned to Jackson's home and found Jessie collapsed on the floor. Hadley attempted CPR, and when Jackson refused to call an ambulance, Rodgers called one. Before the ambulance arrived, Jackson disposed of his drugs and paraphernalia by passing them to a neighbor out the back door of his home.

         When the paramedics arrived, Jessie was still alive but unconscious. They rushed her to the hospital but could not revive her. Jessie died at the hospital early the following morning. A sample of Jessie's blood tested positive for amphetamine and methamphetamine at six or seven times the level of a fatal dose. An autopsy confirmed Jessie's cause of death to be a methamphetamine overdose.

         Meanwhile, the government had been engaged in an extensive investigation of the entire conspiracy. As part of its investigation, the government sought and obtained two orders authorizing wire and electronic surveillance of Mag-gard's phones. Through this surveillance, the government intercepted communications between Maggard, Bell, and Neeley among many others. Many of these communications concerned the defendants' drug activity.

         A grand jury indicted the defendants (and fifteen others) on twenty-three counts associated with their conspiracy to distribute methamphetamine. Specifically, Maggard was charged with conspiracy to distribute methamphetamine, unlawful use of a cellphone to facilitate the distribution of methamphetamine, and possession of methamphetamine with intent to distribute. Bell was charged with conspiracy to distribute methamphetamine and unlawful use of a cellphone to facilitate the distribution of methamphetamine. Jackson was charged with conspiracy to distribute methamphetamine and distribution of methamphetamine. And Neeley was charged with conspiracy to distribute methamphetamine, two counts of distribution of methamphetamine, and possession of methamphetamine with intent to distribute. The indictment also included allegations about several applicable sentencing enhancements, only one of which is relevant on appeal: "that death resulted from the use of methamphetamine distributed by [Jackson and Neeley]." (R. 175 at 16; R. 650 at 8.)

         Before trial, the defendants filed several motions, three of which are involved in this appeal. First, Maggard and Bell moved to sever their trial from that of Jackson and Neeley.

         Second, Jackson moved to bifurcate the substantive allegations against him in the indictment (that he participated in the drug conspiracy and that he distributed methamphetamine) from the sentencing-enhancement allegation against him (that his distribution of methamphetamine resulted in Jessie's death). In so doing, Jackson sought to prevent the government from introducing evidence related to his wife's death, claiming that this evidence would be unduly prejudicial.

         Finally, Maggard, Bell, and Neeley moved to suppress the government's wiretap evidence.

         The district court denied each of these motions, and the defendants proceeded to a joint trial. At trial, Bell chose to represent himself with standby counsel present; the other defendants were represented by counsel.

         After a ten-day trial, the jury convicted the defendants of all charges. The judge then sentenced Maggard, Bell, and Jackson to aggregate terms of life imprisonment followed by ten years of supervised release and Neeley to an aggregate term of 264 months' imprisonment followed by five years of supervised release. This appeal followed.

         II. Analysis

         On appeal, the defendants raise five arguments. Three of their arguments relate to the pretrial motions that the district court denied, and two relate to the sufficiency of the evidence considered by the jury

         We begin with the defendants' first three arguments: that the district court abused its discretion by denying (1) Mag-gard, Bell, and Neeley's motion to suppress the government's wiretap evidence, (2) Maggard and Bell's motion for a separate trial, and (3) Jackson's motion and subsequent objections to suppress evidence related to his wife's death.

         We then turn to the defendants' arguments related to the sufficiency of the evidence: that the evidence presented to the jury was insufficient to show that (1) Bell was involved in the conspiracy and (2) Neeley supplied the methamphetamine that killed Jessie. We discuss additional facts as necessary in each of these sections.

         A. Admission of the Wiretap Evidence

         Maggard, Bell, and Neeley first argue that the district court erred by not suppressing evidence that the government obtained using a wiretap.[1] As part of its investigation of the methamphetamine conspiracy, the government twice sought and obtained authorization from the district court to intercept communications on Maggard's telephones. In so doing, it listed Maggard, Bell, and Neeley, among many others, as probable interceptees. Through this wiretap, the government intercepted approximately 4000 telephone calls and text messages, several of which it introduced as evidence at trial.

         Congress codified the "[p]rocedure for interception of wire, oral, or electronic communications" in 18 U.S.C. § 2518. Among several other requirements, § 2518(1)(c) requires the government's application for electronic or wire surveillance to provide a "full and complete statement as to whether or not other investigative procedures [1] have been tried and failed or [2] why they reasonably appear to be unlikely to succeed if tried or [3] to be too dangerous." This is known as the "necessity requirement, " and it obligates the government in its application for a wiretap to demonstrate that it has considered other methods of investigation and to explain why those methods have proven inadequate for one or more of the three listed reasons. United States v. Mandell, 833 F.3d 816, 821 (7th Cir. 2016).

         "Despite its name, the necessity requirement 'was not intended to ensure that wiretaps are used only as a last resort in an investigation, but rather that they are not to be routinely employed as the initial step in a criminal investigation.'" Id. (quoting United States v. McLee, 436 F.3d 751, 762-63 (7th Cir. 2006)); see also United States v. Fudge, 325 F.3d 910, 919 (7th Cir. 2003) (holding that the "evil we are trying to avoid" in these cases is the "routine use of wiretaps as an initial step in the investigation"). Accordingly, the government's burden in applying for a wiretap "is not great, " and the "requirement of exhausting 'other investigative procedures' prior to obtaining a wiretap is 'reviewed in a practical and commonsense fashion.'" McLee, 436 F.3d at 763 (quoting United States v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995)).

         When a district court conducts its common-sense review of the government's application for a wiretap, the statute explicitly requires it to consider the government's "full and complete statement" on necessity. See 18 U.S.C. § 2518(3)(c); see also Mandell, 833 F.3d at 821 ("The necessity requirement binds judges too ... ."). This means that, before granting such an application, the court must affirmatively "deter-mine[] on the basis of the facts submitted by the applicant" that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. ยง 2518(3)(c). If the court concludes that the ...

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