United States v. Alfonso Allen

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-14444 JANUARY 31, 2011
________________________ JOHN LEY
CLERK
D. C. Docket No. 05-20916-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFONSO ALLEN,
a.k.a. Spoon,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(January 31, 2011)

Before CARNES, FAY and SILER,* Circuit Judges.

*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
PER CURIAM:

Alfonso Allen (“Allen”) appeals his convictions and sentences for conspiracy

to distribute fifty or more grams of cocaine base, in violation of 21 U.S.C. §

841(a)(1), all in violation of 21 U.S.C. § 846 (Count 1), distribution of cocaine base,

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 8 and 9), possession

with intent to distribute cocaine base, in violation of 18 U.S.C. § 841(a)(1) and 18

U.S.C. § 2 (Count 10), possession of firearms in furtherance of a drug trafficking

crime, as set forth in Count 10, all in violation of 18 U.S.C. § 924(c)(1)(A) and 18

U.S.C. § 2 (Count 11), knowing possession of a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 2 (Count 12), and knowing

possession of a firearm which was not registered to him in the National Firearms

Registration Record, in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 2 (Count

13).

Allen raises several issues on appeal. First, he argues the district court erred

in denying his motion to suppress evidence obtained from intercepted wiretap

communications and evidence obtained from the warrantless search of his cell phone.

Second, he argues the district court erred in denying his Batson challenge to the

government’s peremptory striking of two African-American jurors. Third, he argues

the district court abused its discretion by finding the government’s filing of a 21

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U.S.C. § 851 information was not vindictive in nature. After careful review of the

record, counsels’ briefs, and the benefit of oral argument, we affirm the district court.

I. BACKGROUND

Cornell Roberts and Andrew Haynes operated a drug distribution organization

in the Overtown neighborhood of Miami, Florida. Roberts and Haynes used an

apartment they dubbed “the Mint” to convert powder cocaine into crack cocaine,

which they then sold in a stairwell at the Rainbow Towers apartment complex. In

December 2003, the organization set up another crack cocaine factory called “the

Rolex” in an apartment leased by Roberts’ sister. The Cornell Roberts crack cocaine

organization employed an extensive network to further its nefarious business,

including lieutenants, enforcers, sellers and lookouts. Appellant Alfonso Allen, also

known as “Spoon,” was a lieutenant who set up the sellers at the beginning of their

shifts at the Rainbow Towers with small “baggies” of crack cocaine marked with

green dollar signs. Several times during each shift, Allen picked up the sellers’ cash

proceeds and replenished their crack cocaine supplies, keeping track of each seller’s

cash receipts and crack cocaine allotments on tally sheets.

On July 11, 2006, a joint task force investigating the Cornell Roberts

organization began a court-authorized wiretap on Roberts’ Metro PCS cell phone.

After Roberts discarded his Metro PCS cell phone, the task force began another court-

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authorized wiretap on August 11, 2005 through September 11, 2005 of Roberts’ other

cell phone. During this period of time, Allen was recorded reporting to Roberts on

numerous occasions. The contents of the recordings included, among other things,

Allen reporting to Roberts concerning Allen’s collection of monies from the sellers,

shortages of cash or crack, problems with crack cocaine production, updates on police

surveillance, and Allen explaining to Roberts how he was able to successfully

convince competing crack cocaine sellers to stop selling their product at Rainbow

Towers, thus avoiding violence and police involvement which would hamper the

continuing sales of their crack cocaine.

On August 17, 2005, officers monitoring the wiretap learned that Allen was

planning to meet with Roberts in Miami, Florida. Detectives conducted a computer

driver’s license search to obtain a photograph of Allen and discovered that Allen’s

driver’s license had been suspended. Detectives Suarez and Tillman intercepted

Allen while he was driving to the planned meeting and arrested him for driving with

a suspended license. While conducting an inventory search of Allen’s vehicle, prior

to having it towed to the pound, Detective Suarez noticed what looked like a

marijuana cigarette in the ash tray of the front passenger seat. Detective Suarez also

found a Western Union order for a cell phone payment in the backseat and noticed

that the phone number on the bill was the same as the one being wiretapped.

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 Detective Tillman then searched Allen’s person and removed from his pockets

the following items: (1) a cell phone; (2) a wallet; and (3) a wad of cash. These items

were placed on the hood of Allen’s vehicle. As Allen was being searched, ATF

Agent DeVito arrived on the scene. After Allen was moved away from his vehicle,

Agent DeVito picked up Allen’s cell phone from the hood of the vehicle, flipped it

open, and began scrolling through the telephone numbers in the contact list.

Recognizing some of the numbers on the list, Agent DeVito copied the familiar-

looking numbers onto a piece of scrap paper and later included them in his report.

Agent DeVito then closed the phone and placed it inside Allen’s vehicle. Agent

DeVito also found a tally sheet folded up in Allen’s wallet, which noted narcotics

transactions by persons in Roberts’ organization, identifiable on the tally sheet by

initials for their names or nicknames.

On September 9, 2005, the task force officers executed a search warrant on the

apartment known as “the Rolex” within the Cornell Roberts organization. During the

search, a police officer stationed at the rear of the building observed Allen

intentionally jump, head-first, out of a second floor window and land on the ground

in front of him. Appearing stunned but uninjured, Allen was taken into custody. The

officers searching the apartment found firearms (a sawed-off 12 gauge shotgun and

loaded semi-automatic pistol), ammunition, various drug tally sheets (including

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several marked “Sp”), a wallet belonging to co-conspirator Kareem Roberts, baggies

of powder cocaine and marijuana, beakers and plates caked with crack cocaine

residue, baking soda, baggies marked with a dollar signs, currency, razor blades used

to cut crack cocaine "cookies", electronic scales, and scraps of paper covered with

phone numbers. In addition, Allen’s identification card and a copy of the police

report of Allen’s August 17, 2005 arrest were also found in the living room.

On July 18, 2006, a federal grand jury in the Southern District of Florida

returned a second superseding indictment charging Allen with conspiracy to

distribute fifty or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1),

all in violation of 21 U.S.C. § 846 (Count 1), distribution of cocaine base, in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 8 and 9), possession with intent

to distribute cocaine base, in violation of 18 U.S.C. § 841(a)(1) and 18 U.S.C. § 2

(Count 10), possession of firearms in furtherance of a drug trafficking crime, as set

forth in Count 10, all in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2

(Count 11), knowing possession of a firearm as a convicted felon, in violation of 18

U.S.C. § 922(g)(1) and 18 U.S.C. § 2 (Count 12), and knowing possession of a

firearm which was not registered to him in the National Firearms Registration Record,

in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 2 (Count 13). The indictment

also charged eleven co-defendants with conspiracy to distribute fifty or more grams

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of cocaine base in Count 1, and variously charged them with other offenses similar

to Allen.

After his arrest, Allen adopted motions to suppress the intercepted wiretap

communications filed by his co-defendants. Following a hearing, the district court

denied the motions. Allen also filed a motion to suppress the physical evidence

seized during his August 17, 2005 arrest which the district court also denied. At trial,

Allen moved to withdraw his plea of not guilty, and with the district court’s approval,

entered a plea of guilty as to Counts 1 and 11, pursuant to a written agreement with

the United States. Two months later, on December 19, 2006, Allen sought to

discharge his counsel and moved to withdraw his guilty plea. The district court

denied Allen’s motion and on January 26, 2007, sentenced Allen on Count 1 to 360

months of imprisonment, followed by 120 months imprisonment on Count 11, to run

consecutively. Following his imprisonment, Allen would be subject to supervised

release for five years and specially assessed $200.

Allen appealed his sentence, and on February 3, 2009, this Court vacated

Allen’s guilty plea and conviction and remanded the case with instructions to assign

another district court judge. Allen renewed his motions to suppress the physical

evidence from his August 17, 2005 arrest and the intercepted wiretap

communications. The district court denied all of Allen’s motions. On April 16, 2009,

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the government filed an information pursuant to 21 U.S.C. § 851 disclosing its intent

to use evidence regarding narcotics convictions at sentencing.

On June 9, 2009, jury selection commenced for Allen’s trial. During voir dire,

the government used peremptory challenges on jurors 12, 13, and 14. Allen raised

separate Batson1 challenges to the striking of jurors 13 and 14, noting that they were

African-American. Regarding the first Batson challenge, the district court asked the

government why it chose to use a peremptory challenge on juror 13. The government

responded that the juror was rolling her eyes repeatedly during examination, not

paying attention, putting on make-up during questioning, and that her sister had been

arrested for traffic violations. Regarding the government’s use of a peremptory

challenge to strike juror 14, the government responded that juror 14 had an aunt who

had been arrested for drug trafficking. The district court denied Allen’s Batson

challenges to jurors 13 and 14, holding that the jurors had been struck on proper race

neutral grounds.

On June 17, 2009, Allen’s trial concluded and the jury returned verdicts

convicting Allen as charged. Allen filed a motion to strike the government’s 21

U.S.C. § 851 information, which the district court denied after hearing argument.

On August 25, 2009, Allen was sentenced to life imprisonment as to Count 1;

1
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

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360 months incarceration as to Counts 8, 9, and 10, to run concurrent with each other

and with Count 1; 120 months incarceration as to Count 11, to run consecutive to

Counts 1 and 8-10; and 120 months incarceration as to Counts 12 and 13, to run

concurrent with each other and with Counts 1, and 8-10. This timely appeal followed.

II. DISCUSSION

On appeal, Allen challenges the district court’s denial of his motions to

suppress the intercepted wiretap communications and evidence obtained from the

warrantless search of his cell phone. In addition, Allen asserts that the district court

erred in overruling his Batson challenge for the government’s improper use of

peremptory challenges to remove two African-American jurors, and for denying his

motion to strike the government’s notice of sentencing enhancement filed for

vindictive purposes.

A. Intercepted wiretap communications

We review the district court’s denial of a motion to suppress evidence gathered

via electronic surveillance under a mixed standard of review. United States v.

Malekzadeh, 855 F.2d 1492, 1496 (11th Cir. 1988). Findings of fact are reviewed for

clear error and the application of law to those facts is reviewed de novo. United

States v. Mercer, 541 F.3d 1070, 1073-74 (11th Cir. 2008) (citing United States v.

Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007)).

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 Allen argues that the government failed to show necessity for the wiretap of

Cornell Roberts’ cell phone and failed to exhaust all other investigative procedures,

as required by 18 U.S.C. § 2518. The provision on which Allen relies states that an

application for interception of wire communications 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.” 18 U.S.C. § 2518(c)(1). The statute authorizing wiretaps is not

intended “to be routinely employed as the initial step in a criminal investigation,”

United States v. Giordano, 416 U.S. 505, 515, 94 S. Ct. 1820, 1827 (1974), but rather,

it is designed to ensure that electronic surveillance is neither routinely employed nor

used when less intrusive techniques will succeed. Id. This does not, however, mean

that the statute requires “a comprehensive exhaustion of all possible techniques, but

must simply explain the retroactive or prospective failure of several investigative

techniques that reasonably suggest themselves.” United States v. Van Horn, 789 F.2d

1492, 1496 (11th Cir. 1986). Here, Allen maintains that the government did not

exhaust all of its investigative procedures before seeking to wiretap Cornell Roberts’

cell phone. However, 18 U.S.C. § 2518 and relevant case law do not require the

government to explore every possible avenue of investigation open to it before

pursuing electronic surveillance of wire communications, only those avenues which

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do not reasonably appear unlikely to succeed or which are not too dangerous. Allen

argues that the wiretap was not necessary because the government had not exhausted

all of the other investigative avenues open to it. Specifically, Allen asserts the

government could have used a cooperating confidential informant to infiltrate the

Cornell Roberts organization or set up a sting operation through an undercover DEA

agent Roberts had been speaking with. The government points out that these were

not reasonable avenues for the government to explore at the time. Specifically, when

the wiretap was applied for in July 2005, the confidential informant Allen refers to

was already in jail on bank robbery charges, and a sting sale of real cocaine would not

have advanced the goals of the investigation (to discover the source of Roberts’

powder cocaine) since agents would have had to immediately arrest Roberts in order

to prevent the cocaine from entering the stream of commerce, thus shutting down the

investigation. Based upon these facts, we find no error in the district court’s denial

of Allen’s motion to suppress the intercepted wiretap communications.

B. Warrantless search of cell phone

Allen asserts that the district court erred in denying his motion to suppress

evidence improperly obtained during his August 17, 2005 arrest. Specifically, Allen

argues that the warrantless search of his cell phone contact list, once he was already

secured by the arresting officers and could no longer access his cell phone, violated

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his Fourth Amendment expectation of privacy.

Whether the warrantless search of a cell phone incident to arrest violates a

person’s Fourth Amendment expectation of privacy is an unanswered question in this

Circuit. It is a fairly difficult question, however, it is also a question that we need not

answer today. The law is clear that potential Fourth Amendment violations are

subject to a harmless error analysis, and we find that the facts here are equally clear

that any error would be harmless. United States v. Khoury, 901 F.2d 948, 960 (11th

Cir. 1990). “The error is harmless if there is no ‘reasonable probability that the

evidence complained of might have contributed to the conviction.’” United States v.

Turner, 871 F.2d 1574, 1581-82 (11th Cir. 1989) (quoting Fahy v. Connecticut, 375

U.S. 85, 86-87 (1963)). Factors the court may consider regarding whether the

evidence is harmless include: the importance of the evidence to the prosecution,

whether the evidence was cumulative, and the overall strength of the prosecution’s

case. Turner, 871 F.2d at 1582.

Excluding the contact list obtained from the warrantless search of Allen’s cell

phone, there was overwhelming evidence of Allen’s guilt. Allen was observed by an

officer on the scene jumping head-first out of a second story window as police

executed a search warrant on the apartment he was in, revealing a 12 gauge sawed-off

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shotgun, a loaded semi-automatic pistol, ammunition, various drug tally sheets

marked “Sp” for “Spoon” (Allen’s nickname), baggies of powder cocaine and

marijuana, beakers and plates caked with crack cocaine residue, baking soda, baggies

marked with green dollar signs, currency, razor blades used to cut crack cocaine

“cookies, electronic scales, scraps of papers covered with telephone numbers, Allen’s

identification card, and a copy of the police report from Allen’s August 17, 2005

arrest. Allen was recorded on the Roberts’ wiretap explaining to Roberts that he did

not take the pistol when he jumped from the second story window because he was

concerned about getting out of the apartment. Allen was further recorded numerous

times discussing with Roberts his collection of money from the crack sellers, the

sellers’ shortages of cash and crack cocaine, problems with crack cocaine production,

lazy and dishonest sellers, and police surveillance. In addition, in one wiretap

conversation with Roberts, Allen identified himself as Spoon and bragged to Roberts

about how he had persuaded competing drug sellers to stop selling at Rainbow

Towers without resorting to violence and avoiding any police involvement. Allen

was also recorded telling Roberts where the guns were hidden in the Rolex apartment

so Roberts could procure one for his own use.

Furthermore, Allen’s incriminating statements were corroborated by co-

conspirator testimony at trial and police observations that Allen was a lieutenant

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within the Cornell Roberts crack cocaine organization. This voluminous evidence

established clearly that Allen’s duties where to set up sellers at the beginning of their

shifts at the Rainbow Towers with crack cocaine baggies marked with green dollar

signs, pick up sales proceeds and replenish crack cocaine supplies, record each

seller’s sales data on tally sheets, and pay the sellers in cash at the end of their shifts.

The evidence further established that the lieutenants, the bosses, and the sellers all

carried firearms for protection, that pistols were stored at the Rolex, and that a

shotgun was left at the Rolex to deter any potential robbers.

The contact list from Allen’s cell phone was entered into evidence to show

Allen was linked to Cornell Roberts and his co-conspirators and to illustrate the

connection between Allen and three street level distributors who had not been

recorded during the wiretap, but whose phone numbers did appear on the contact list.

However, in light of the abundance of other incriminating evidence – including

recordings of Allen speaking to Roberts, testimony from his co-conspirators, and

evidence obtained during the search of the Rolex – the contents of Allen’s cell phone

contact list added little to nothing in proving that Allen was an integral part of the

Cornell Roberts crack cocaine organization. The cell phone contact list was merely

a small piece of a large and complex puzzle, the absence of which would not

reasonably prevent seeing the larger picture presented here. Thus, even if admission

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of the contact list was error (a question which we do not reach), any such error was

harmless.

C. Allen’s Batson challenge

We review jury selection de novo under the three-part test articulated in Batson

v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), and review the district court’s

underlying factual findings for clear error. United States v. Allen-Brown, 243 F.3d

1293, 1297 (11th Cir. 2001). In Batson, the Supreme Court outlined the following

test to assess challenges to peremptory strikes: (1) the party challenging the

peremptory strike must establish a prima facie case of discrimination, (2) if the court

finds that a prima facie case of discrimination has been established, the burden shifts

to the party exercising the peremptory challenge to articulate a non-discriminatory

explanation for the strike, and (3) if a nondiscriminatory reason is offered, the court

must determine whether the party challenging the strike has met its burden of proving

purposeful discrimination. Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co.,

Inc., 236 F.3d 629, 636 (11th Cir. 2000). “A district court’s finding as to why a juror

is excused is an issue of fact, and as such, it will not be disturbed on appeal ‘unless

it is clearly erroneous or appears to have been guided by improper principles of law.’”

Allen-Brown, 243 F.3d at 1297.

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 Allen argues that the district court erred in denying his Batson challenge to the

government’s peremptory strikes of two African-American jurors. The government

responds that the two African-American jurors were struck for race neutral reasons:

inattentiveness and close family members who had been arrested. Allen maintains

that the government’s peremptory striking of these two prospective jurors was

motivated by race because the government did not strike two white jurors who also

had family members who had been arrested.

Applying the Batson three-part test, it is clear that even if Allen can establish

a prima facie case for discrimination, Allen cannot satisfy the second and third prongs

of the test. The government has provided an acceptable race-neutral,

nondiscriminatory explanation for its striking of the jurors. Specifically, juror 13 was

inattentive and had a sister who had been arrested for an unspecified traffic violation.

Juror 14 had an aunt who had been arrested for drug trafficking, the same crime for

which Allen was being tried. Finally, applying the third Batson prong, Allen has not

proved the government purposefully discriminated in using their using peremptory

strikes to remove them. Accordingly, we find no error.

D. Vindictive filing of government’s 21 U.S.C. § 851 information

“[T]he dismissal of an indictment on the ground of prosecutorial misconduct

is a discretionary call; we therefore review the court’s action for an abuse of

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discretion.” United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006) (citations

omitted). “A district court abuses its discretion if, in making the decision at issue, it

applies the incorrect legal standard or makes findings of fact that are clearly

erroneous.” Id. (quoting United States v. Jordan, 316 F.3d 1215, 1249. (11th Cir.

2003)).

Allen argues that the government’s filing of a 21 U.S.C. § 851 information,

listing prior convictions which would possibly subject Allen to a sentence of life

imprisonment, was filed in retaliation for his successful appeal to vacate his earlier

guilty plea. However, we can find no vindictive conduct on the government’s behalf.

In fact, the government went so far as to extend the same plea agreement to Allen on

remand that Allen had initially agreed to, even offering to refrain from filing the 21

U.S.C. § 851 information. Defense counsel informed Allen of the risks involved in

refusing the plea agreement and explained to him that once the information was filed,

Allen would be subject to a life sentence should he be convicted. Under these

circumstances, it does not appear that the government’s filing of a 21 U.S.C. § 851

information was vindictive; Allen simply chose not to accept the plea agreement and

to take his chances at trial. The fact that the trial did not turn out favorably for him

and that he is now facing a life sentence does not render the government’s actions

vindictive in nature. Allen is merely facing the consequences of his actions.

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Accordingly, we find that the district court committed no error in denying Allen’s

motion to strike the government’s 21 U.S.C. § 851 information.

For the foregoing reasons, we AFFIRM.

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