UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4946
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PAUL STARNER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:14-cr-00008-LMB-1)
Submitted: July 21, 2015 Decided: August 18, 2015
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter L. Goldman, O’REILLY & MARK, P.C., Alexandria, Virginia,
for Appellant. Dana J. Boente, United States Attorney,
Christopher Catizone, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On September 24, 2014, a federal jury convicted Paul
Starner of conspiracy to distribute cocaine and cocaine base in
violation of 21 U.S.C. §§ 841 (a)(1) and 846. Before trial,
Starner filed two motions to suppress: one concerning wiretap
evidence and one concerning statements Starner made in a post-
arrest interview. The district court denied both motions.
Starner now appeals those denials. He also appeals his
conviction, contending there was insufficient evidence for the
jury to find him guilty of conspiracy to distribute cocaine.
For the reasons that follow, we affirm.
I.
A.
In February 2013, as part of its investigation of a drug-
trafficking organization operating in Prince William County,
Virginia, the Federal Bureau of Investigation (“FBI”) obtained
authorization from the district court to wiretap the telephone
communications of a suspected cocaine distributer. The wiretap
revealed that the distributer’s name was Johnnie Hill and that
Hill frequently communicated with Starner. The FBI obtained
four subsequent authorizations to tap Hill’s phone but never
tapped Starner’s phone.
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The information the FBI gathered over the wiretaps between
February and June 2013, led the FBI to believe Starner was a
low-level player in the conspiracy, purchasing small quantities
of powder and crack cocaine to redistribute to other buyers.
Starner was arrested on October 17, 2013.
Following his arrest, Starner was taken to the FBI’s field
office in Manassas, Virginia, where two Prince William County
detectives interviewed him. The detectives testified that
Starner was offered use of the restroom, and a bottle of water
and a granola bar prior to his interview. They also testified
that Starner was handcuffed with his hands in front of him,
rather than behind his back, so that he would be more
comfortable.
Before the interview, the detectives sought to obtain a
written waiver of Starner’s Miranda rights. Starner was unable
to read the waiver form because he did not have his glasses, so
the detectives read Starner’s Miranda rights aloud to him.
After the detectives finished reading, Starner verbally
acknowledged he understood his Miranda rights, and signed the
written waiver.
During the interview, Starner informed the detectives that
he had sustained a brain injury during a car accident in the
1970s and suffered from memory loss as a result. Starner claims
that because of his injury he cannot remember anything about the
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interview, including whether he was offered food and beverage,
or whether he was informed of and waived his Miranda rights.
Starner states that he does remember, however, that the
detectives informed him he could receive up to 30 years in
prison if he did not answer their questions.
B.
In support of his motion to suppress the wiretap evidence,
Starner argued that the affidavits the government submitted in
support of its application for wiretap authorization did not
satisfy 18 U.S.C. § 2518(3), which requires the government to
demonstrate probable cause for a wiretap and exhaust less
intrusive measures before applying for a wiretap. Starner also
claimed that the government failed to minimize its interception
of phone calls unrelated to the suspected criminal activity. In
support of his motion to suppress his post-arrest statements,
Starner argued that his Miranda rights waiver was involuntary.
The district court denied both motions after a hearing on
September 22, 2014. The court found that the government had
established probable cause to authorize the wiretap of Hill’s
phone and noted that Starner could not identify any
investigative procedures the FBI should have, but failed to, try
prior to applying for a wiretap, nor any phone calls or portions
of phone calls the FBI listened to impermissibly. The court
also noted that it did not find Starner’s claims regarding his
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mental state at the time of his interview to be credible and
could find no evidence demonstrating police intimidation or
failure to properly administer his Miranda rights. Thus, the
district court admitted at trial evidence from the wiretaps and
Starner’s post-arrest interview. On September 24, 2014 after a
one-day trial, the jury convicted Starner of conspiracy to
distribute cocaine and cocaine base.
II.
We turn first to Starner’s contention that the district
court erred in denying his motions to suppress. “We review
factual findings regarding [a] motion to suppress for clear
error and legal conclusions de novo.” United States v.
Williams, 740 F.3d 308, 311 (4th Cir. 2014). We construe the
evidence in the light most favorable to the prevailing party in
the district court. United States v. Foster, 634 F.3d. 243, 246
(4th Cir. 2011). Because the district court denied Starner’s
motions, we construe the evidence in the light most favorable to
the government. In examining the sufficiency of a wiretap
affidavit, “we review for abuse of discretion determinations of
necessity under § 2518, United States v. Wilson, 484 F.3d 267,
280 (4th Cir. 2007), and give great deference to the issuing
judge’s determination of probable cause, United States v. Depew,
932 F.2d 324, 327 (4th Cir. 1991).
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A.
Starner argues that the district court should have
suppressed the evidence the government obtained from tapping
Hill’s telephone. Starner contends here, as he did before the
district court, that the government failed to demonstrate
probable cause for the wiretap, failed to exhaust less intrusive
investigative measures before applying for the wiretaps, and
failed to minimize its interception of phone calls unrelated to
the suspected criminal activity. Starner also contends that the
district court erred in failing to hold an evidentiary hearing
concerning his motion to suppress. We address each contention
in turn.
1.
18 U.S.C. § 2518 sets out three probable-cause requirements
the government must meet before a judge may authorize the
interception of a individual’s telephone communications:
“probable cause for belief that [the] individual is committing,
has committed, or is about to commit a particular offense
enumerated in [18 U.S.C. § 2516]”; “probable cause for belief
that particular communications concerning that offense will be
obtained through such interception”; and probable cause that the
telephone to be tapped is “leased to, listed in the name of, or
commonly used by [the individual].”
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The government must establish such probable cause only with
respect to the individual whose phone is to be tapped; not for
every individual with whom the wiretap subject might exchange
phone calls during the authorized period. If “recordings of [a]
defendant’s conversations [a]re . . . made incident to a lawful
wiretap, . . . it [is] not error to allow the introduction of
the taped telephone calls simply because defendant was not named
in the application or order as one whose conversations would
possibly be intercepted.” United States v. Smith, 565 F.2d 292,
294 (4th Cir. 1977). Thus, the government’s interception of
telephone conversations between Hill and Starner was proper so
long as the government had sufficient probable cause to tap
Hill’s telephone.
The district court found that the government’s wiretap
affidavits contained “tons of evidence” to support tapping
Hill’s phone, and that “any fair reading of the affidavits
establishes adequate probable cause to justify” tapping Hill’s
telephone. J.A. 48, 50. Although Starner correctly points out
that Hill was not mentioned by name in the government’s initial
wiretap affidavit, the wiretap statute does not require that the
government identify a target individual’s name. Rather, it only
requires probable cause that the target individual is committing
an offense, that the government will obtain information about
the offense by listening to the target individual’s telephone
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calls, and that the telephone identified by the government does
indeed belong to the target individual. Starner has offered no
argument that the government failed to meet those requirements.
Thus, we defer to the district court’s finding that the
requisite probable cause existed to justify the wiretap.
2.
Starner next argues that the government failed to exhaust
normal investigative procedures before applying for the wiretap.
The wiretap statute requires the government to show 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. § 2518(3)(c). To meet this
exhaustion requirement, the government must provide more than “a
mere boilerplate recitation of the difficulties of gathering
usable evidence,” but “the adequacy of [the government’s]
showing is to be tested in a practical and commonsense fashion
that does not hamper unduly the investigative powers of law
enforcement agents.” United States v. Oriakhi, 57 F.3d 1290,
1298 (4th Cir. 1995) (quotation and alteration omitted).
Here, the government’s affidavits discussed over
20 investigative tactics the government had tried prior to
applying for the wiretap. Appellee’s Br. at 17. Starner does
not point to any alternative tactics the government could have
utilized. Thus, we defer to the district court’s finding that
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the government adequately exhausted normal investigative
procedures before applying for the wiretap.
3.
Starner next argues that the government did not
sufficiently minimize its collection of wiretap evidence. The
wiretap statute provides that wiretaps “shall be conducted in
such a way as to minimize the interception of communications not
otherwise subject to interception . . . , and must terminate
upon attainment of the authorized objective.” 28 U.S.C.
§ 2518(5). “The wiretapping statute does not require that all
innocent communications be left untouched,” and “[i]n
determining whether the minimization requirements of § 2518(5)
have been met, courts apply a standard of reasonableness on a
case-by-case basis.” Oriakhi, 57 F.3d at 1300. Here, the
government followed proper procedures to ensure it did not
record innocent communications any more than necessary,
Appellee’s Br. at 18-19, and Starner fails to identify any
particular telephone conversation that he believes the
government intercepted improperly. Thus, he fails to establish
a failure to comply with the wiretap statute’s minimization
requirement.
4.
Finally, Starner claims that the district court erred by
failing to conduct an evidentiary hearing concerning Starner’s
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motion to suppress wiretap evidence. We have already held that
the government’s wiretap affidavits established sufficient
probable cause to justify intercepting Hill’s telephone
conversations with Starner. To the extent Starner is
contending that the district court should have held an
evidentiary hearing concerning the accuracy of the government’s
statements in its wiretap affidavits, see Franks v. Delaware,
438 U.S. 154 (1978), that argument fails. In Franks, the
Supreme Court held that the Fourth Amendment requires an
evidentiary hearing be held at a defendant’s request if the
defendant has offered proof that an affidavit contains
indications of deliberate falsehood or reckless disregard for
the truth. 438 U.S. at 155 - 56, 171. Starner offered no such
proof in the district court and has offered none here.
B.
We turn next to Starner’s argument that evidence from his
post-arrest interview should be suppressed because he was
mentally unable to voluntarily waive his Miranda rights. To
determine whether a confession was given involuntarily, “[t]he
proper inquiry is whether the defendant’s will has been
overborne or his capacity for self-determination critically
impaired” by “threats, violence, implied promises, improper
influence, or other coercive police activity.” United States v.
Holmes, 670 F.3d 586, 591 (4th Cir. 2012) (quotation omitted).
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In thus considering, we review the totality of the
circumstances, including not just whether there was coercive
police activity, but also “the characteristics of the defendant,
the setting of the interview, and the details of the
interrogation.” Id.
Here, Starner claims that he was mentally incapacitated at
the time of the interview due to a brain injury he claims
impairs his short- and long-term memory, and that the police
coerced him by informing him that if he did not answer their
questions, he could be subject to 30 years in prison. In
support, he cites only his own testimony, which the district
court did not find credible. See J.A. 123. Even if the police
did inform Starner that he potentially faced 30 years in prison,
“statements by law enforcement officers that are merely
uncomfortable or create a predicament for a defendant are not
ipso factor coercive.” Holmes, 670 F.3d at 592–93. Further,
the totality of the circumstances does not indicate police
coercion. Starner was offered access to the restroom, food and
beverage, and was placed in handcuffs with his arms in front of
him, rather than behind his back. The police read Starner’s
Miranda rights aloud to him, and saw no indication that Starner
did not comprehend their communications. Based on this record,
we cannot overturn the district court’s finding that Starner
voluntarily waived his Miranda rights.
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III.
We turn finally to Starner’s claim that there was
insufficient evidence in the record to support his conviction.
We review the sufficiency of the evidence in the light most
favorable to the government as well, and the jury verdict must
be sustained if there is substantial evidence to support the
conviction. United States v. Jaensch, 665 F.3d 83, 93 (4th Cir.
2011). In determining the sufficiency of the evidence, “we do
not weigh the evidence or assess the credibility of witnesses,
but assume that the jury resolved any discrepancies in favor of
the government.” United States v. Kelly, 510 F.3d 433, 440 (4th
Cir. 2007). “Reversal for insufficient evidence is reserved for
the rare case where the prosecution's failure is clear.” United
States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010).
“Conspiracy is an inchoate offense, the essence of which is
an agreement to commit an unlawful act.” United States v.
Edmonds, 679 F.3d 169, 173 (4th Cir. 2012). “To prove
conspiracy, the government need not prove an explicit agreement.
It may rely upon indirect evidence from which the conspiracy
agreement may be inferred.” Id. at 174. Such indirect evidence
may include the amount of cocaine involved in the distribution,
the regularity of distribution transactions, and distributions
involving a credit agreement known as “fronting.” Id.
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The government presented all three examples of indirect
evidence at Starner’s trial. First, Starner admitted to buying
over $200 of cocaine at one time, which one of the lead FBI
agents on the case testified was an amount inconsistent with
purely personal use. Second, transcripts of tapped calls
indicate the regularity of Starner and Hill’s transactions.
During one call, after Starner told Hill he didn’t have his
“stuff” or his money, Hill told Starner “we been through this
10 times man.” Later in the conversation, Hill said, “this
ain’t the first or second or third time you did this to me.”
Finally, in a separate conversation, after establishing Starner
had taken some of Hill’s product, Starner said, “I apologize
Bush I got a hundred right now but I’ll have the rest of it
tomorrow or the next day,” indicating Starner paid Hill on
credit. In reviewing this evidence in the light most favorable
to the government, we find sufficient evidence to sustain
Starner’s conviction.
IV.
For the foregoing reasons, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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