United States v. Stewart ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4356
NORBERT W. STEWART, a/k/a Dred,
a/k/a Shorty,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Judge.
(CR-95-320)
Submitted: June 30, 1998
Decided: August 4, 1998
Before HAMILTON and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Jonathan Matthew Harvey, Columbia, South Carolina, for Appellant.
J. Rene Josey, United States Attorney, Cameron G. Chandler, Assis-
tant United States Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Norbert Stewart appeals his conviction for conspiracy to possess
with the intent to distribute and to distribute marijuana, cocaine, and
cocaine base, in violation of 21 U.S.C.A. § 846 (West Supp. 1998);
possession with the intent to distribute cocaine base, in violation of
21 U.S.C.A. § 841(a)(1) (West 1981); using a communication facility
to facilitate the possession with the intent to distribute and distribution
of marijuana, cocaine, and cocaine base, in violation of 21 U.S.C.A.
§ 843 (West 1994 & Supp. 1998); and money laundering, in violation
of 18 U.S.C.A. §§ 1956(a)(1)(A)(i) & (B)(i) (West Supp. 1998). We
affirm.
In 1992, Stewart met Delroy Beckford, with whom he purchased
cocaine. After purchasing the cocaine, Beckford transported the
cocaine to South Carolina where his girlfriend, Pam Rogers, distrib-
uted the drugs. An investigation of the organization established that
several other individuals were involved in purchasing and distributing
drugs and that much of the organization's business was conducted
over the telephone.
During the course of the investigation, the Government applied to
the district court for a wiretap of Rogers' telephone and presented the
supporting affidavit of FBI Special Agent Richard Powers. The affi-
davit outlined the methods of normal investigative techniques that had
been tried with limited success and those that were unlikely to suc-
ceed if attempted. Based upon the application and affidavit, the dis-
trict court issued an order authorizing the wiretap of Rogers'
telephone.
Following the indictment of fifty individuals, Stewart moved to
suppress the evidence obtained from the wiretap. The district court
held a hearing and denied the motion to suppress. At trial, the Gov-
ernment introduced several recorded telephone conversations.
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On appeal, Stewart asserts that the district court erroneously denied
his motion to suppress the wiretap evidence because the Govern-
ment's application and accompanying affidavit did not contain suffi-
cient facts to satisfy 18 U.S.C.A. § 2518(1)(c) (West 1970) and to
support the district court's finding of necessity under § 2518(3)(c)
(West 1970). Under § 2518(1)(c), a wiretap application must contain
"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." The burden
upon the government "to show the inadequacy of normal investigative
techniques is not great, and the adequacy of such a showing is `to be
tested in a practical and common sense fashion.'" United States v.
Smith, 31 F.3d 1294, 1297 (4th Cir. 1994) (quoting United States v.
Clerkley, 556 F.2d 709, 714 (4th Cir. 1977)).
The affidavit of Special Agent Powers explained the traditional
investigative procedures used to investigate the organization for the
three years preceding the wiretap application. These included inter-
viewing a number of confidential sources, placing a pen register on
Rogers' telephone, "spot" surveillance of Rogers' residence, and trac-
ing wire transfers. The affidavit explained that through these proce-
dures, law enforcement authorities had been able to gather a limited
amount of evidence concerning the organization but could not deter-
mine the identities of other co-conspirators and sources.
The affidavit also explained that such techniques as introducing
undercover agents, employing physical surveillance, mailcovers, and
search warrants would not be successful in disclosing the nature of
the conspiracy and those involved. Because the application and affi-
davit provided specific factual information as to how certain investi-
gative methods had been employed with limited success and how
others were unlikely to succeed, we find that the Government pro-
vided sufficient facts from which the issuing court could reasonably
have concluded that a wiretap was necessary.
Stewart's contention that there was insufficient evidence to support
a conviction of conspiracy fails. To prove a conspiracy, the govern-
ment must show an agreement between two or more persons to "ef-
fectuate a criminal act." See United States v. Burgos, 94 F.3d 849, 857
(4th Cir. 1996) (en banc), cert. denied, 117 S. Ct. 1087. We must
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affirm Stewart's conviction "if there is substantial evidence, taking
the view most favorable to the Government, to support it." Glasser v.
United States, 315 U.S. 60, 80 (1942).
Viewed in the light most favorable to the Government, the evi-
dence at trial showed that Stewart associated with Beckford and con-
spired to purchase cocaine and to distribute it in South Carolina.
Beckford testified that he shared the proceeds of the sale of cocaine
in South Carolina with Stewart and that Stewart supplied cocaine to
Beckford and other co-defendants. The testimony also showed that
members of the organization transported cocaine for Stewart and that
Stewart sold cocaine and crack to other members of the conspiracy.
Such evidence, along with the wiretap evidence, is sufficient to sus-
tain a conviction for conspiracy.
Accordingly, we affirm Stewart's conviction. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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