United States v. Ivey Grant , 521 F. App'x 841 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15716
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cr-00482-TWT-LTW-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IVEY GRANT,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 6, 2013)
Before MARCUS, JORDAN, and KRAVITCH, Circuit Judges.
JORDAN, Circuit Judge:
Ivey Grant appeals his conviction for conspiracy to possess, with intent to
distribute, at least 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 846,
841(a)(1) and (b)(1)(B)(vii). He argues that the district court erred in denying his
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pretrial motion to suppress wiretap evidence because (1) the affidavit in support of
the wiretap application contained information the government knew had been
purchased by an informant from another inmate and therefore violated Franks v.
Delaware, 438 U.S. 154 (1978); (2) the other information in the affidavit was stale;
and (3) the remaining portions of the affidavit did not establish probable cause that
a crime had been, was being, or was about to be committed. He also contends that
the jury instructions were erroneous because (4) the deliberate ignorance jury
instruction should not have been given as the relevant evidence in the case pointed
to actual knowledge, rather than deliberate avoidance, of drug trafficking; and (5)
the pattern jury instruction on deliberate ignorance was an incorrect statement of
the law in light of the Supreme Court’s recent decision in Global-Tech Appliances,
Inc. v. SEB S.A., 131 S. Ct. 2060 (2011).
After reviewing the record and the parties’ briefs, we affirm.
I. FACTUAL BACKGROUND
Mr. Grant owned Hi-Tech Manufacturing Services, a truck-welding shop in
Lithonia, Georgia. Aside from performing welding services, Mr. Grant allowed
others to park their trucks on his property. One such individual was Marlon
Burton, whom FBI agents had been investigating for drug trafficking. 1 In
1
Mr. Burton pled guilty to conspiracy to possess, with the intent to distribute, at least five
kilograms of cocaine and at least 100 kilograms of marijuana. At the time of Mr. Grant’s trial,
he had been sentenced to imprisonment for 360 months.
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November of 2008, the FBI sought (and obtained) a wiretap to intercept calls made
on a cellular telephone used by Mr. Burton. FBI Special Agent Nikki Badolato
submitted an affidavit containing information gathered over the course of the
investigation, including information provided by an unidentified cooperating
witness (CW-1), a second cooperating witness later identified as Leon Lumsden
(CW-2), an undercover FBI agent, and recorded telephone calls. During the course
of the investigation, and with the aid of information garnered from this wiretap, the
FBI gathered evidence about Mr. Grant’s role in Mr. Burton’s criminal enterprise.
A. Wiretap Affidavit: Information from Mr. Lumsden
The affidavit executed by Agent Badolato included information obtained
from Mr. Lumsden, who said that he had met Mr. Burton three years earlier and
that he knew individuals “who work[ed] for Burton’s drug-trafficking
organization.” See Affidavit [D.E. 219-1 and 219-2] at ¶ 31. “Through these
contacts,” Mr. Lumsden knew that Mr. Burton was a “high-level cocaine and
marijuana distributor” who received narcotics from Mexico. See id. Agent
Badolato stated that she believed Mr. Lumsden was reliable and that she had
attempted to corroborate his information where possible.
Mr. Grant filed a motion to suppress evidence garnered from the wiretap.
He argued that Agent Badolato recklessly disregarded the truth when she based her
affidavit, in part, upon information obtained from Mr. Lumsden, who had
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purchased the information relating to Mr. Burton’s alleged drug trafficking from
Marcus Watkins, another inmate, who in turn sold information to fellow inmates so
they could obtain U.S.S.G. § 5K1.1 reductions. 2 Mr. Grant argued that because the
affidavit improperly presented this information as first-hand knowledge, which
amounted to “a material falsehood and a material omission . . . [and] a reckless
disregard for the truth,” he was entitled to a hearing under Franks v. Delaware, 438
U.S. 154 (1978). See Motion to Suppress [D.E. 130] at 8, 17.
The government opposed the motion and argued that there was no evidence
that Agent Badolato lied or recklessly disregarded the truth when she submitted her
affidavit. At a Franks hearing before the magistrate judge, the government argued
that the remainder of the affidavit, aside from Mr. Lumsden’s information,
established probable cause to issue the wiretap order. The magistrate judge agreed
and the district court adopted the magistrate’s report and recommendation.
B. Wiretap Affidavit: Information from CW-1
The wiretap affidavit also contained information from another confidential
informant, CW-1, who told agents that Marco Duron, a Mexico-based drug
2
During his interview with FBI agents, Mr. Lumsden said he had received the information from
a girlfriend. The source of the information was actually Mr. Watkins’ cousin, Katrina McCurty,
and Mr. Lumsden had purchased the information from her hoping to receive a sentence
reduction. See Transcript of Franks Hearing [D.E. 262] at 40-41, 86-87, 104-05, and 109-10.
Mr. Grant contends that Agent Badolato should have known that Mr. Lumsden was unreliable
because other agents from the FBI and several Assistant United States Attorneys from the
Northern District of Georgia knew that he had purchased information from Mr. Watkins.
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trafficker, had “fronted” Mr. Burton 100 kilograms of cocaine, which was paid
back within 3 days. See Affidavit at ¶ 17. CW-1 had worked with Mr. Burton in
the past; “CW-1, or his associates, regularly supplied Burton with narcotics prior to
CW-1 working with the FBI.” Id. at ¶ 18. During a call with CW-1 in June 2008,
Mr. Burton agreed to establish a new narcotics supply line in Atlanta. According
to CW-1, during a meeting on July 17, 2008, between Mr. Burton, CW-1, and an
undercover FBI agent, Mr. Burton:
• drove CW-1 and the agent in his Mercedes sedan and showed them his
residence to prove that his narcotics operation had been profitable;
• stated that he distributed cocaine and agreed to check a list of names to
determine whether they were under investigation;
• discussed his $130,000 debt that he wanted to clear up with the cartel in the
hope of becoming the sole cocaine distributor in Atlanta;
• negotiated how much each kilogram of cocaine would cost and agreed upon
a price of $20,000 per kilogram;
• called individuals inquiring about secluded properties to be used for the
narcotics operation;
• “stated that he wanted to run the drug business exclusively out of Atlanta;”
and
• drove them to two residences that he had constructed and offered them as
stash houses for the narcotics operation.
See id. at ¶¶ 19-21.
Other details were discussed on subsequent calls on July 30-31, August 1,
September 2-3, and November 5, 2008, during which Mr. Burton told the
undercover agent that he was ready to begin distributing drugs. See id. at ¶¶ 23-29,
32. Moreover, toll records from August 17 to November 13, 2008, showed that
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Mr. Burton contacted known Mexican drug traffickers on multiple occasions. See
id. at ¶¶ 33-37.
C. Trial Testimony and Jury Instructions
At trial, two cooperating co-defendants testified for the government: Mr.
Burton and Otoniel Herrera, a truck driver who transported marijuana to Hi-Tech.3
Mr. Herrera testified that he delivered three separate loads of marijuana to Atlanta,
which were unloaded at Hi-Tech. See Trial Transcript [D.E. 377] at 310, 318-19,
322.
Mr. Burton testified about Mr. Grant’s role in the drug trafficking conspiracy
as follows. See id. at 110-16; 126-30; 134-35; 145-46. Mr. Burton rented space at
Hi-Tech to unload large quantities of drugs from trailers coming from Mexico and
to load them with drug proceeds for delivery back to Mexico. Mr. Burton paid Mr.
Grant approximately $6,500 per load of marijuana and $13,000 per load of cocaine
that was loaded or unloaded at Hi-Tech; in total, he used Hi-Tech 30 or 40 times to
unload marijuana and cocaine. He notified Mr. Grant, by telephone, when trucks
carrying drugs were en route to Hi-Tech and Mr. Grant routinely went to his shop
to open the gate and allow the trucks to enter his property.
Mr. Burton also testified that Mr. Grant required the trucks to arrive in the
dark and helped clear the way for the trucks to back up to the main building to
3
Mr. Herrera pled guilty to a narcotics charge and was sentenced to 46 months’ imprisonment.
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unload. Mr. Grant was thin and able to crawl inside the truck across the legitimate
load, often fruit or produce, to unload the marijuana bales. If necessary, Mr. Grant
would drive the forklift to remove the legitimate load and locate the marijuana.
After unpacking the marijuana bales, he burned the packaging at his shop.
At the government’s request, the district court gave the Eleventh Circuit
pattern instruction on deliberate ignorance. Mr. Grant objected, arguing that it was
improper to give the deliberate ignorance instruction because there was no
evidence of such conduct in the case. See id. at 521-22, 600. He did not object to
the language of the deliberate ignorance charge as an incorrect statement of the
law.
After the jury found him guilty, Mr. Grant moved for a new trial, re-
asserting his challenge to the wiretap evidence, but the district court denied his
motion. The district court noted that it had once again reviewed the report and
recommendation, the wiretap application, and the affidavit and concluded that
there was “an overabundance of probable cause” to support the wiretap, even
excising Mr. Lumsden’s information. See Transcript of Motion for New Trial and
Sentencing [D.E. 380] at 2, 5-6. The district court ultimately sentenced Mr. Grant
to a term of imprisonment of 108 months. See id. at 41.
II. STANDARDS OF REVIEW
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We review the district court’s denial of a motion to suppress evidence under
a mixed standard of review. United States v. Jiminez, 224 F.3d 1243, 1247 (11th
Cir. 2000). “A district court’s denial of a motion to suppress evidence is reviewed
as a mixed question of law and fact, with the rulings of law reviewed de novo and
the findings of fact reviewed for clear error, in the light most favorable to the
prevailing party.” United States v. De La Cruz Suarez, 601 F.3d 1202, 1213 (11th
Cir. 2010). An application for a wiretap authorization must be supported by the
same probable cause necessary for a search warrant. United States v. Nixon, 918
F.2d 895, 900 (11th Cir. 1990). The district court must “make a practical, common
sense decision about whether the totality of the circumstances indicate that there is
probable cause that the sought-for evidence will be obtained.” Id. (internal
quotation marks omitted). Our review of the district court’s determination is to
ensure that there was a “substantial basis” for concluding that probable cause
existed. Id.
Probable cause for a wiretap must exist at the time the surveillance is
authorized. United States v. Domme, 753 F.2d 950, 953 (11th Cir. 1985). Warrant
applications based on stale information fail to create probable cause that improper
conduct is continuing. United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994).
Nevertheless, when criminal activity is “protracted and continuous,” it is more
likely that passage of time will not dissipate probable cause; it is reasonable to
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assume that the activity has continued beyond last dates mentioned and may still be
continuing. Domme, 753 F.2d at 953. “Time becomes less significant in the
wiretap context, because the evidence sought to be seized is not a tangible object
easily destroyed or removed,” so “the stale information issue should be construed
less rigorously.” Id. See also United States v. Hyde, 574 F.2d 856, 865 (5th Cir.
1978) (staleness issue must be examined more liberally when a continuing pattern
of criminal activity is alleged; such a “result is even more defensible in wiretap
cases than in ordinary search warrant cases”). When reviewing staleness claims
we do not apply a talismanic rule which establishes arbitrary time limitations;
rather, we review each case based on the unique facts presented. Harris, 20 F.3d at
450. “[E]ven stale information is not fatal if the government affidavit updates,
substantiates, or corroborates the stale material.” Id.; Jiminez, 224 F.3d at 1249.
“We apply a deferential standard of review to a trial court’s jury
instructions.” United States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008) (quoting
United States v. Puche, 350 F.3d 1137, 1148 (11th Cir. 2003)). Under this
standard, we will only reverse if we are left with a substantial and eradicable doubt
as to whether the jury was properly guided in its deliberations. Id. However, we
review jury instructions de novo to determine whether they misstated the law or
misled the jury to the prejudice of the objecting party. United States v.
Richardson, 233 F.3d 1285, 1292 (11th Cir. 2000). The district court has broad
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discretion in formulating a jury charge so long as the charge as a whole is a correct
statement of the law. Id.; United States v. Schlei, 122 F.3d 944, 969 (11th Cir.
1997). We will not reverse a conviction unless we find that issues of law were
presented inaccurately or the charge improperly guided the jury in such a
substantial way as to violate due process. United States v. Perez-Tosta, 36 F.3d
1552, 1564 (11th Cir. 1994).
Jury instructions that are challenged for the first time on appeal are reviewed
for plain error. United States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995).
Under the “plain error” standard, a defendant must demonstrate that (1) an error
occurred, (2) the error was plain, and (3) the error affected substantial rights; if
these conditions are met, we may exercise our discretion to correct a forfeited
error, but only if (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. United States v. Felts, 579 F.3d 1341, 1344
(11th Cir. 2009); United States v. Evans, 478 F.3d 1332, 1338 (11th Cir. 2007).
III. DISCUSSION
A. Motion to Suppress
First, Mr. Grant argues that the magistrate judge should have granted his
motion to suppress the wiretap evidence because the affidavit knowingly contained
material misrepresentations and omissions in violation of Franks. Second, he
contends that once the alleged falsehoods are excised, no probable cause remains
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for the wiretap. He asserts that the information provided by CW-1 was stale and
that the evidence provided by CW-1 and the undercover agent only showed that
Mr. Burton was trying to get back into the cocaine trafficking business, so that his
comments amounted only to mere puffery. We disagree.
1. Probable Cause
We need not determine whether there was a violation under Franks because
even if we excise the information obtained from Mr. Lumsden, the remaining
portions of Agent Badolato’s affidavit contained sufficient information to establish
probable cause. See United States v. Novaton, 271 F.3d 968, 988 (11th Cir. 2001)
(“in light of the other facts contained in the affidavits, the alleged omissions
[pursuant to Franks] were immaterial to a finding of probable cause for the
wiretaps”). The facts discussed above—namely, the investigation by the FBI, the
consensually recorded telephone calls between CW-1 and Mr. Burton, and the
statements of CW-1 and the undercover agent—provided sufficient probable cause
to believe that evidence of Mr. Burton’s drug trafficking would be intercepted. See
Nixon, 918 F.2d at 900 (holding that wiretap authorization and its extension were
supported by probable cause where defendants agreed to sell narcotics to
undercover agents, confidential informant purchased cocaine, pen register
activities indicated phone calls to known drug dealers, and surveillance and
investigate reports suggested narcotics-related activity).
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2. Staleness of Information Supporting Probable Cause
Mr. Grant asserts that CW-1’s information was stale because his last drug
deal with Mr. Burton was in 2003. Although information that is five years old is,
without more, undoubtedly stale,4 the affidavit here demonstrated past “protracted
and continuous” drug trafficking activity as well as recent drug trafficking activity
between CW-1 and Mr. Burton just before the application for the wiretap. See
Domme, 753 F.2d at 953. The affidavit did not rely only on past drug deals; it
related that, during his July 2008 meeting with CW-1 and the undercover agent,
Mr. Burton discussed his intention of clearing his past drug debt so he could
become the sole cocaine distributor in Atlanta, negotiated the price of cocaine,
made calls to acquire secluded properties for the narcotics operation, and showed
possible stash houses to be used for the operation. See Harris, 20 F.3d at 451
(“Because the affidavit alleged ongoing activity and a continuing relationship
between coconspirators, the information was not fatally stale.”); Domme, 753 F.2d
at 955 (“In light of the less rigorous treatment accorded the stale information issue
. . . the facts presented were sufficient to form a reasonable belief that the activities
were continuing, despite the gap in time”).
4
See Transcript of Franks Hearing at 51 (Agent Badolato testifies that “the last drug deals that
took place between CW-1 and Marlon Burton were back in 2003”); id. at 52 (Agent Badolato
does not dispute that such information is five years old).
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Moreover, toll records from August 17 to November 13, 2008, showed that
Mr. Burton contacted known Mexican drug traffickers on multiple occasions. See
Affidavit at ¶¶ 33-37. For example, Mr. Burton had been in contact with Mr.
Duron, who directs supplies of cocaine from Mexico, on 33 occasions, with the last
actual contact on November 7, 2008 (a few weeks before the affidavit was signed).
See id. at ¶ 35. These toll records, along with the meetings and recorded calls in
July and October 2008, sufficiently corroborated the possibly stale information.
See United States v. Green, 40 F.3d 1167, 1172 (11th Cir. 1994) (holding that
information from confidential informant regarding the recent continued sale of
cocaine served as an update of previously obtained information which was
unspecific about time and was therefore not stale). See also Jiminez, 224 F.3d at
1249; Harris, 20 F.3d at 451.
As the wiretap authorization was supported by probable cause and the
information in the affidavit was not stale, we affirm the district court’s denial of
Mr. Grant’s motion to suppress.
B. Jury Instructions
1. The Deliberate Ignorance Instruction
We have held that a deliberate ignorance instruction is appropriate “only
when the facts support the inference that the defendant was aware of a high
probability of the existence of the fact in question and purposely contrived to avoid
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learning all of the facts in order to have a defense in the event of a subsequent
prosecution.” United States v. Rivera, 944 F.2d 1563, 1571 (11th Cir. 1991)
(quotation and alteration omitted). A district court should not instruct the jury on
deliberate ignorance when the relevant evidence points only to actual knowledge,
rather than deliberate avoidance. Id. Improperly instructing the jury on deliberate
ignorance, however, is harmless error where the jury was also instructed and could
have convicted on an alternative, sufficiently supported theory of actual
knowledge. See United States v. Kennard, 472 F.3d 851, 858 (11th Cir. 2006);
United States v. Perez–Tosta, 36 F.3d 1552, 1564 (11th Cir. 1994); United States v.
Stone, 9 F.3d 934, 937, 942 (11th Cir. 1993); Rivera, 944 F.2d at 1572.
As noted earlier, Mr. Grant argues that the deliberate ignorance instruction
was improper because there was no evidence to support a theory of deliberate
ignorance. The government argues that there was evidence of both actual
knowledge and deliberate ignorance of drug trafficking activity. We need not
decide whether the evidence at trial supported a deliberate ignorance instruction.
Even assuming there was no evidence that Mr. Grant was deliberately
ignorant and for that reason the instruction should not have been given, the
instruction constituted harmless error because there was sufficient evidence to
prove that Mr. Grant had actual knowledge. See United States v. Steed, 548 F.3d
961, 978 (11th Cir. 2008) (declining to address whether the facts at trial supported
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a deliberate ignorance instruction because any shortcoming in the evidence about
deliberate ignorance was rendered harmless by the sufficiency of the evidence of
actual knowledge); Kennard, 472 F.3d at 858 (same). The testimony of Messrs.
Burton and Herrera—discussed above—established that Mr. Grant actually knew
that the trucks were unloading marijuana at Hi-Tech. Specifically, Mr. Burton
testified that Mr. Grant often cleared the way for the trucks, participated in
unloading the marijuana by crawling inside the trucks or using a forklift to remove
the legitimate load and locate the marijuana, unpackaged the marijuana bales, and
burned the packaging at Hi-Tech. Mr. Burton also testified that he paid Mr. Grant
approximately $6,500 per load of marijuana and $13,000 per load of cocaine.
This evidence was sufficient for a jury to conclude that Mr. Grant had actual
knowledge of the marijuana in the trucks. We therefore conclude that any error
with respect to the deliberate ignorance instruction was harmless.
2. The Wording of the Deliberate Ignorance Instruction
Finally, Mr. Grant argues that the deliberate ignorance instruction, based on
the Eleventh Circuit pattern jury instructions, was erroneous because it misstated
the law in light of the Supreme Court’s decision in Global-Tech Appliances, Inc. v.
SEB S.A., 131 S. Ct. 2060 (2011). Although Mr. Grant objected to giving any
deliberate ignorance instruction at trial, he did not challenge the wording of the
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instruction that was given. Because no objection was made at trial, we review this
particular claim for plain error.
Contrary to Mr. Grant’s contention, the Eleventh Circuit pattern jury
instruction on deliberate ignorance is not inconsistent with the standard laid out in
Global-Tech. Compare Global-Tech, 131 S. Ct. at 2069-71 (holding that the
doctrine of willful blindness, well established in criminal law and embraced by
federal courts of appeals, applies to civil lawsuits for induced patent infringement),
with Eleventh Circuit Pattern Jury Instruction, Special Instruction No. 8 (2010).5
In fact, the Supreme Court in Global-Tech specifically cited to the Eleventh
Circuit’s deliberate ignorance instruction in Perez-Tosta as illustrative of the
deliberate ignorance standard. See Global-Tech, 131 S. Ct. at 2070 n. 9. The
instruction in Perez-Tosta matched almost verbatim the instruction used in Mr.
5
Special Instruction No. 8 provides:
Deliberate Ignorance as Proof of Knowledge
If a Defendant’s knowledge of a fact is an essential part of a crime, it’s enough that the
Defendant was aware of a high probability that the fact existed – unless the Defendant
actually believed the fact didn’t exist.
“Deliberate avoidance of positive knowledge” – which is the equivalent of knowledge –
occurs, for example, if a defendant possesses a package and believes it contains a
controlled substance but deliberately avoids learning that it contains the controlled
substance so he or she can deny knowledge of the package’s contents.
So you may find that a defendant knew about the possession of a controlled substance if
you determine beyond a reasonable doubt that the defendant (1) actually knew about the
controlled substance, or (2) had every reason to know but deliberately closed [his] [her]
eyes.
But I must emphasize that negligence, carelessness, or foolishness isn’t enough to prove
that the Defendant knew about the possession of the controlled substance.
The district court’s instruction matches this language verbatim. See Trial Transcript at 594.
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Grant’s case. Compare Perez-Tosta, 36 F.3d at 1564 n.13, with Trial Transcript at
594. Under these circumstances, we find no plain error.
IV. CONCLUSION
The district court properly denied Mr. Grant’s motion to suppress the
wiretap evidence because Agent Badolato’s affidavit—even without the
information provided by Mr. Lumsden—was supported by probable cause and did
not merely contain stale information. The district court did not plainly err in using
the Eleventh Circuit pattern jury instruction on deliberate ignorance and any error
in giving that instruction was harmless. Accordingly, we affirm.
AFFIRMED.
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