United States v. Tony James Leflore , 653 F. App'x 703 ( 2016 )


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  •            Case: 15-11012   Date Filed: 06/28/2016   Page: 1 of 14
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-11012
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 2:13-cr-00287-AKK-CSC-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    TONY JAMES LEFLORE,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    ________________________
    (June 28, 2016)
    Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
    PER CURIAM:
    Case: 15-11012    Date Filed: 06/28/2016   Page: 2 of 14
    Tony Leflore appeals his convictions for conspiracy to possess with intent to
    distribute cocaine and marijuana, in violation of 
    21 U.S.C. §§ 841
    (b)(1)(A), 846;
    unlawful use of a communication facility, in violation of 
    21 U.S.C. § 843
    (b),
    (d)(1); and possession with intent to distribute cocaine powder and crack cocaine,
    in violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(C). After careful consideration and a
    thorough review of the record, we affirm.
    I.
    A grand jury indicted Leflore on numerous counts arising out of an alleged
    drug trafficking ring. The charges against Leflore in the superseding indictment
    included one count of conspiracy to distribute powder cocaine, crack cocaine, and
    marijuana; 21 counts of knowing and intentional unlawful use of a communication
    facility (a cellular telephone) in the commission of the drug offenses; three counts
    of possession with the intent to distribute cocaine; and one count of money
    laundering.
    Before trial, Leflore filed a motion to suppress, raising two arguments. First,
    Leflore contended that all evidence seized during a search of his residence should
    be suppressed, despite the issuance of a warrant, because the officers entered his
    residence on October 17, 2013 at 10:14 p.m., while the warrant reflected that it was
    not issued until 10:31 p.m. that night. Second, Leflore urged the court to suppress
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    evidence obtained through a court-authorized wiretap, arguing that normal
    investigative procedures would have worked as well as a wiretap. 1
    The government opposed the motion. It asserted that the warrant, which was
    issued along with five others at about the same time to search properties associated
    with Leflore and his alleged coconspirators, reflected an incorrect time of issuance.
    The government offered as evidence the warrants issued to search two of the
    properties, showing the issuing times as 9:21 p.m. and 9:27 p.m. As regards the
    wiretap applications, the government contended that the affidavits in support,
    which it offered into evidence, contained extensive discussions of alternative
    investigation techniques and showed why these alternative measures were
    inadequate and thus why the wiretap was necessary.
    The magistrate judge held an evidentiary hearing. Regarding the warrant,
    the judge considered the testimony of Hubert Douglas Walters, Jr., a Task Force
    Officer with the United States Drug Enforcement Administration who was part of a
    team assigned to search Leflore’s residence. Walters testified that he and his team
    waited until they received confirmation that a warrant had issued before entering
    and searching Leflore’s residence. In addition to the two warrants the government
    1
    Leflore also asserted that statements in the wiretap application were misleading and
    deceptive, but he failed to identify specific misleading statements until he filed amended
    objections to the magistrate judge’s report and recommendation. Likewise, Leflore did not
    challenge the wiretap applications for lack of probable cause until his objections to the report and
    recommendation and even then only made a passing reference to this issue. The district court
    overruled the objections.
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    offered, the magistrate judge also took judicial notice of the warrants for three
    other properties, which he found were issued at 9:35 p.m., 9:40 p.m., and 9:45 p.m.
    Based on this evidence, the magistrate judge found that the time on the warrant at
    issue was “simply a mistake” and that the actual time of issuance was 9:31 p.m.
    Doc. 85 at 8. 2 For this reason, the magistrate judge recommended denying the
    motion to suppress evidence seized as a result of the search of Leflore’s residence.
    As regards the wiretap, the court considered the detailed affidavits attached
    to the wiretap applications, which described the techniques that had previously
    failed, appeared unlikely to succeed, or were too dangerous to employ. For
    example, according to the affidavits, authorities sifting through Leflore’s trash
    risked compromising the investigation because Leflore lived on a cul-de-sac in a
    neighborhood with houses close together, making it more likely that someone
    would observe the search and tell Leflore. The authorities also lacked confidential
    sources who could purchase drugs from Leflore. And although undercover officers
    were helpful in investigating low-level drug dealers, authorities were unable to
    employ these officers to investigate Leflore directly. Nor had pole cameras, air
    surveillance, or telephone toll analyses been successful at gaining the information
    officers needed. Moreover, the objective of the investigation, according to the
    affidavits, went beyond simply capturing Leflore; the authorities wished to topple
    2
    Citations to “Doc.” refer to docket entries in the district court record in this case.
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    the entire organization to stop the flow of cocaine. At the suppression hearing,
    Walters confirmed this information and maintained that wiretaps were necessary to
    fulfill the goals of the investigation.
    The magistrate judge recommended denying this portion of the motion to
    suppress as well. The judge found that law enforcement’s goal was to dismantle
    the organization and that Walters had adequately explained why the various
    alternative techniques of surveillance—searching trash, employing confidential
    informants, and installing and monitoring pole cameras, for example—were
    insufficient as compared to wiretaps.
    The district court adopted the magistrate judge’s recommendations over
    Leflore’s objections 3 and denied the motion to suppress.
    Trial commenced on September 15, 2014 with testimony lasting five days.
    The government presented the testimony of over 20 witnesses, including one of
    Leflore’s coconspirators, Leonardo Fuller, and one of Leflore’s buyers, Stanley
    Parker. Fuller testified that he sold cocaine and marijuana for Leflore and that he
    witnessed Leflore sell cocaine for cash. Fuller also identified Leflore’s voice on a
    government wiretap recording and confirmed that Leflore was discussing
    marijuana. For his part, Parker testified that he purchased cocaine from Leflore on
    3
    Leflore filed three sets of objections to the magistrate judge’s recommendation, two
    before the district court adopted the recommendation and one after the district court denied
    Leflore’s motion to suppress. The district court overruled all of Leflore’s objections.
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    numerous occasions for three and half years since 2008, paying over $30,000 for
    30 kilograms of the drug. Parker also explained that he purchased from Leflore, in
    four or five transactions, a total of about 100 pounds of marijuana from 2008
    through 2011. Parker then identified Leflore’s and another coconspirator’s voice
    on a wiretap recording and confirmed that Leflore avoided using the word
    “cocaine” on the telephone.
    Walters also testified for the government. He described intercepted
    telephone calls connecting Leflore to the drug operation. Walters identified items
    recovered after the search of Leflore’s home and vehicle, including one of the
    telephones authorities had wiretapped, about $10,000 in cash found in a storage
    closet, $3,100 in cash found in the center console of Leflore’s vehicle, and a key to
    another vehicle, which contained 11.5 kilograms of cocaine. On cross-
    examination, Leflore’s attorney asked Walters whether Leflore had used the word
    cocaine during any of the wiretapped telephone calls. Walters reported that he
    never heard the word cocaine on the wiretap. When pressed by Leflore’s counsel
    to identify what “conversation [Walters] heard . . . about illicit drug activity,”
    Walters responded that on “numerous telephone calls between Mr. Leflore” and a
    coconspirator, “both reference[d] money or cocaine as a thing.” Doc. 293 at 189.
    Leflore’s attorney lodged no objection to the testimony he elicited.
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    After the close of the government’s case, Leflore moved for judgment of
    acquittal as to all counts. The court denied Leflore’s motion. Leflore then called
    Walters to testify briefly, after which, the defense rested. The jury returned a
    verdict of guilty on count 1, conspiracy to possess with intent to distribute cocaine
    and marijuana, in violation of 
    21 U.S.C. §§ 841
    (b)(1)(A), 846; counts 13, 19, and
    24, possession of cocaine powder and crack cocaine with intent to distribute in
    violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(C); and 16 counts of unlawful use of a
    communication facility (a cellular telephone), in violation of 
    21 U.S.C. § 843
    (b),
    (d)(1). The jury rendered a verdict of not guilty on all remaining counts, including
    the money laundering count.
    Leflore moved for judgment of acquittal and, in the alternative, for a new
    trial. The district court denied the motion. The district court sentenced Leflore to
    292 months’ imprisonment. This appeal followed.
    II.
    Leflore raises four arguments on appeal. First, he argues that the district
    erred in denying his motion to suppress evidence seized during the search of his
    home. We review the denial of a motion to suppress under a mixed standard,
    reviewing the district court’s findings of fact for clear error and its application of
    the law to those facts de novo, while construing the facts in the light most
    favorable to the prevailing party below. United States v. Lewis, 
    674 F.3d 1298
    ,
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    1302-1303 (11th Cir. 2012). A district court’s choice between two permissible
    views of the evidence cannot be clear error. See Anderson v. City of Bessemer
    City, N.C., 
    470 U.S. 564
    , 574 (1985). We defer to the district court’s factual
    determination “unless it is contrary to the laws of nature, or is so inconsistent or
    improbable on its face that no reasonable factfinder could accept it.” United States
    v. Ramirez-Chilel, 
    289 F.3d 744
    , 749 (11th Cir. 2002) (internal quotation marks
    omitted).
    The district court did not err in denying the motion to suppress regarding the
    evidence seized during a search of Leflore’s home. The district court found that
    the time of issuance noted on the face of the warrant authorizing the search was a
    scrivener’s error; the warrant was actually issued at 9:31 p.m., before authorities
    searched Leflore’s home. This finding was not clearly erroneous. The sequential
    order of the five other warrants presented by the same affiant on the same night for
    the same investigation, all of which were issued before the search of the home, and
    the testimony that law enforcement did not enter Leflore’s home until after
    receiving confirmation at 10:14 p.m. that the warrant had been issued, adequately
    support the district court’s factual finding. The search of Leflore’s home,
    therefore, was pursuant to a valid warrant, and the evidence seized as a result was
    admissible at trial.
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    Second, Leflore argues that the district court erred in denying his motion to
    suppress evidence obtained as a result of the wiretaps because the wiretap
    applications failed to show that normal investigative procedures were insufficient
    and that wiretaps were necessary, as required under 
    18 U.S.C. § 2518
    (1)(c).
    Section 2518(1)(c) requires a wiretap application to 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.” 
    18 U.S.C. § 2518
    (1)(c). “The ‘necessity’ requirement in § 2518
    ensures that law enforcement does not use electronic surveillance when less
    intrusive methods will suffice.” United States v. Perez, 
    661 F.3d 568
    , 581 (11th
    Cir. 2011). “Section 2518 does not foreclose electronic surveillance until every
    other imaginable method of investigation has been unsuccessfully attempted;
    however, it does require the Government to show why alternative measures are
    inadequate for this particular investigation.” 
    Id.
     (internal quotation marks and
    citation omitted); accord United States v. Van Horn, 
    789 F.2d 1492
    , 1496 (11th
    Cir. 1986) (“The affidavit need not, however, show a comprehensive exhaustion of
    all possible techniques, but must simply explain the retroactive or prospective
    failure of several investigative techniques that reasonably suggest themselves.”).
    The district court did not err in concluding that the wiretap applications
    sufficiently showed why alternative measures were inadequate for the
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    investigation. The affidavits submitted in support of the wiretap applications
    contained extensive discussions of alternative investigative techniques, including a
    search of Leflore’s trash, undercover drug purchases, and pole cameras. Further,
    the affidavits adequately explained why those techniques were too risky or
    ineffective. For example, to succeed in not only nabbing Leflore but also toppling
    the enterprise, the affidavits showed, and Walters confirmed, that authorities could
    not rely on confidential sources or undercover drug purchases. And even if other
    techniques may have garnered limited success, “[t]he partial success of alternative
    investigative measures . . . does not necessarily render electronic surveillance
    unnecessary.” Perez, 
    661 F.3d at 581
    . We agree with the district court that the
    government satisfied its burden under § 2518 to show the necessity of electronic
    surveillance. Accordingly, the district court did not err in denying the motion to
    suppress.4
    Third, Leflore contends that the district court erred by allowing Walters to
    testify that, in wiretapped conversations, Leflore referred to cocaine as a “thing.”
    To the extent this constituted error, Leflore invited it, and thus it is not reversible.
    4
    In his appellant’s brief, Leflore makes a passing reference to two additional arguments.
    He first references Franks v. Delaware, 
    438 U.S. 154
     (1978), asserting the general proposition
    that deliberately false or misleading statements in a wiretap application constitute grounds for
    suppression of evidence, but he fails to argue that the wiretap applications actually contained
    misleading statements. He then states without elaboration that the wiretap applications lacked
    probable cause. Because Leflore simply makes passing reference to these points without
    mounting an argument or citing authority in support, we deem these issues abandoned. See
    Sapuppo v. Allstate Floridian Ins. Co., 
    739 F.3d 678
    , 682 (11th Cir. 2014).
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    “In the context of a district court’s decision to admit certain evidence, the accepted
    rule is that where the injection of allegedly inadmissible evidence is attributable to
    the action of the defense, its introduction does not constitute reversible error.”
    United States v. Jernigan, 
    341 F.3d 1273
    , 1289 (11th Cir. 2003) (alteration
    adopted) (internal quotation marks omitted); accord United States v. Sarras, 
    575 F.3d 1191
    , 1216 (11th Cir. 2009) (holding that, because the defense counsel’s
    question elicited the response about which counsel complained on appeal, any
    error was invited error and thus unreviewable). Leflore’s attorney pressed Walters
    to confirm that Leflore avoided using the term “cocaine” on telephone calls.
    Walters obliged, but clarified that he understood Leflore’s use of the term “thing”
    to refer to cocaine or money. The admission of this defense-elicited testimony
    does not constitute reversible error.
    Finally, Leflore argues that the evidence was insufficient to support a guilty
    verdict on the conspiracy charge, and thus the district court should have granted his
    motion for judgment of acquittal. “We review the sufficiency of the evidence de
    novo, viewing the evidence in the light most favorable to the government, with all
    reasonable inferences and credibility choices made in the government’s favor.”
    United States v. Edouard, 
    485 F.3d 1324
    , 1349 (11th Cir. 2007) (internal quotation
    marks omitted).
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    To sustain a conviction for conspiracy to distribute drugs in violation of 
    21 U.S.C. § 846
    , “the government must prove that 1) an agreement existed between
    two or more people to distribute the drugs; 2) that the defendant at issue knew of
    the conspiratorial goal; and 3) that he knowingly joined or participated in the
    illegal venture.” United States v. Reeves, 
    742 F.3d 487
    , 497 (11th Cir. 2014)
    (internal quotation marks omitted). “[P]articipation in a criminal conspiracy need
    not be proved by direct evidence; a common purpose or plan may be inferred from
    a development and collocation of circumstances.” 
    Id.
     (internal quotation marks
    omitted). “It is also well established in this Circuit that where there are repeated
    transactions between participants buying and selling large quantities of illegal
    drugs, that may be sufficient to find the participants were involved in a single
    conspiracy to distribute those drugs.” 
    Id.
     Moreover, “the uncorroborated
    testimony of a co-conspirator or accomplice is sufficient to prove guilt beyond a
    reasonable doubt.” Craig v. Singletary, 
    127 F.3d 1030
    , 1044 (11th Cir. 1997)
    (collecting cases); accord United States v. Broadwell, 
    870 F.2d 594
    , 601 (11th Cir.
    1989).
    The district court did not err in denying Leflore’s motions for judgment of
    acquittal. The testimony and other evidence presented at trial, including wiretap
    recordings and the testimony of a coconspirator and a drug purchaser, was
    sufficient to support the convictions. See Broadwell, 
    870 F.2d at 601
    . Leflore
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    argues that Fuller’s and Parker’s testimony was incredible. But it is well-
    established that weighing the credibility of a witness is exclusively within the
    province of the jury. See United States v. Hernandez, 
    743 F.3d 812
    , 815 (11th Cir.
    2014). We must “assume that the jury made all credibility choices in support of
    the verdict.” United States v. Maxwell, 
    579 F.3d 1282
    , 1299 (11th Cir. 2009).
    Only where the testimony is “incredible or insubstantial on its face,”—that is,
    where the testimony addressed “facts that [the witness] physically could not have
    possibly observed or events that could not have occurred under the laws of
    nature”—will we second-guess the jury’s credibility determination. United States
    v. LeQuire, 
    943 F.2d 1554
    , 1562 (11th Cir. 1991) (internal quotation marks
    omitted). Under this standard, Fuller’s and Parker’s testimony was not incredible. 5
    Finally, Leflore asserts that an excerpt from the transcript of a sentencing
    hearing involving one of the alleged coconspirators—in which the district court
    opined that the record in that case failed to support the conclusion that the
    defendant conspired with Leflore—shows that the evidence in his case was
    insufficient to support the conspiracy conviction. Our review of the sufficiency of
    the evidence, however, is limited to “evidence presented at trial.” United States v.
    LeCroy, 
    441 F.3d 914
    , 924 (11th Cir. 2006); accord United States v. Orrego-
    5
    We also reject Leflore’s argument that the government’s failure to call as witnesses
    other coconspirators—whom he claims may have supported the defense—establishes the
    insufficiency of the evidence against him. Leflore has offered no support for this argument, and
    we find none.
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    Martinez, 
    575 F.3d 1
    , 8 (5th Cir. 2009) (“[R]eview of sufficiency challenges is
    confined to evidence presented at trial.” (internal quotation marks omitted)). What
    the district court thought of evidence in a different case is irrelevant to our
    analysis.
    For the foregoing reasons, we reject Leflore’s arguments on appeal and
    affirm his convictions.
    AFFIRMED.
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