United States v. Corderell Dewayne Carson

Case: 12-10682 Date Filed: 05/31/2013 Page: 1 of 53

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-10682
________________________

D. C. Docket No. 2:10-cr-00483-AAK-PWG

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

CORDERELL DEWAYNE CARSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(May 31, 2013)

Before HULL, WILSON and FARRIS,* Circuit Judges.

HULL, Circuit Judge:

*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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Following a jury trial, Defendant-Appellant Corderell Dewayne Carson

appeals his convictions and sentences for one count of conspiracy to distribute

controlled substances, in violation of 21 U.S.C. § 846, and three counts of using a

telephone to facilitate that drug trafficking conspiracy, in violation of 21 U.S.C.

§ 843(b). After oral argument and careful review of the briefs and record, we

affirm.

I. BACKGROUND

We recount the background facts of this case in the light most favorable to

the government. United States v. Tobin, 676 F.3d 1264, 1270 (11th Cir. 2012).

We also describe the relevant procedural history.

A. Investigation of Drug Sale Activity at 1239 McDonald Street

In 2009, the Jefferson County Sheriff’s Office in Alabama and the FBI

launched a joint investigation into suspected drug activity centered at a house

located at 1239 McDonald Street in Brighton, Alabama. The focus of the

investigation soon turned to Carlos Riggs, who resided at 1239 McDonald Street.

Riggs began selling Oxycontin, a brand of oxycodone, in 2006. Riggs was

supplied with 80-milligram Oxycontin pills by Brandon Moody. Within a few

months, Riggs’s operation became big business, and Riggs began recruiting dealers

to help him sell the Oxycontin, including his brother, Marlon Riggs. Carlos Riggs

would sell the Oxycontin pills to his dealers for $40 or so per pill; in turn, the

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dealers would sell the pills to customers at a slightly increased price to make a

small profit. Most often, Riggs “fronted” the pills to his dealers, requiring

payment only after the pills were sold, or the dealer returned the unsold pills.

Riggs’s dealers operated out of the yard at 1239 McDonald Street. Riggs also

allowed other suppliers to distribute Oxycontin pills to the dealers in the yard.

Sometimes Carlos Riggs would even buy pills from his dealers. The distribution

ring moved 2,000 to 4,000 80-miligram Oxycontin pills every 14 days or so for a

period of two years.

In June 2010, Carlos Riggs was arrested on a parole revocation unrelated to

this case. Despite Riggs going to jail, the drug sale business at 1239 McDonald

Street continued and even thrived. Carlos Riggs’s cousin, Cameron White, took

over the operation.

Around the same time, the maker of Oxycontin, Perdue Pharmaceuticals,

reformulated the pill in an effort to prevent abuse. The new pills—nicknamed

“OPs”—turned into gel when crushed, and as a result could not be snorted or shot-

up, reducing the pills’ value as an illicit drug. As a result, in 2010, some of the

dealers at 1239 McDonald Street began selling heroin instead of Oxycontin.

B. Defendant Corderell Carson

Corderell Carson grew up on McDonald Street, and at the time of the

charged conspiracy, lived at 1250 McDonald Street. Carson was, in his terms, a

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small-time drug dealer who sometimes operated on McDonald Street.

Carson grew up with the Riggs brothers and was especially good friends

with Marlon Riggs. Carson concedes that on three occasions, he bought drugs

from members of the Riggs organization when Carson’s own supplier ran out.

However, later at his trial, Carson’s codefendants would testify that Carson

was one of the busiest dealers of the Riggs organization. According to the

codefendants, when the Riggs operation began selling heroin on McDonald Street,

so did Carson. Indeed, a codefendant claimed that Carson became the main source

of heroin. Carson sold codefendant Cameron White three grams of heroin three or

four times a week from September 2010 to January 2011.

As a result of his continued presence at or in the vicinity of 1239 McDonald

Street, Carson himself became a target of the law enforcement investigation.

Carson had three encounters with law enforcement relevant to this appeal.

1. November 4, 2009 Traffic Stop and Search

On November 4, 2009, 1 Jefferson County Sheriff’s Office Detective Jacob

Bradley pulled Carson over for several traffic violations, about five to six blocks

from 1239 McDonald Street. Detective Bradley was familiar with Carson as he

was aware of the investigation at 1239 McDonald Street and had seen Carson at

1
Although the police report indicates the stop occurred on November 5, 2009, Detective
Jacob Bradley conceded at the suppression hearing that the event actually occurred on November
4, and his report was written on November 5.
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that location. After Detective Bradley told Carson why he had been stopped,

Carson consented to a search of his vehicle.

Upon conducting the search, Detective Bradley found and seized two loaded

guns in the console of Carson’s vehicle: a Heckler and Koch .45 caliber handgun

and a Smith and Wesson .40 caliber handgun. Detective Bradley also found and

seized $2,000 in cash from the vehicle.

2. September 23, 2010 Encounter

On September 23, 2010, the law enforcement task force investigating the

drug activity executed a search warrant at 1239 McDonald Street.

While the search of 1239 McDonald Street was being conducted, three

plainclothes law enforcement officers, Sergeant Victor Sims, Sergeant Cameron

Beedle, and another sergeant of the Homewood Police Department, were patrolling

in an unmarked patrol car on a nearby street in an attempt to maintain a perimeter

around 1239 McDonald Street. While patrolling, Sgt. Sims saw Carson emerge on

foot from a line of bushes beside the road, which he found suspicious. After Sgt.

Sims pointed Carson out, Sgt. Beedle, who was on the drug investigation task

force, recognized Carson as a target of the drug investigation.

The officers stopped Carson and asked him to place his hands on the patrol

car so that the officers could conduct a frisk and ensure he was unarmed. Sgt.

Beedle and Sgt. Sims then frisked Carson. The officers felt a “wad” in Carson’s

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front pants pocket. Sgt. Sims asked Carson what the wad was, and Carson said

money. The officers asked Carson if they could pull the money out of his pocket

to verify it was money, and Carson said yes. The officers discovered it was $1,440

in cash. The officers then asked Carson where he got it. Carson answered that he

had just cashed his check from working at a steel plant in North Birmingham.

Sgt. Beedle asked why Carson was in the area. Carson responded that he

was visiting a girl. Sgt. Sims asked Carson why he was coming out of the bushes,

and Carson stated, “I was cutting through the cut,” and “I don’t know my way

around here.” Sgt. Beedle knew that Carson’s home was on the street—in fact,

Sgt. Beedle said Carson’s home was visible from where they had stopped

Carson—and told Carson, “[y]ou live right there.” Carson denied it and told the

officers that he resided in North Birmingham, the address on his driver’s license.

Sgt. Sims kept the $1,440 in cash with Carson’s apparent permission.

Sgt. Beedle and Sgt. Sims then took Carson to 1239 McDonald Street, about

three or four houses down, and to FBI Special Agent Wayne Gerhardt, Jefferson

County Sheriff’s Office Sergeant Hattie French, and Jefferson County Sheriff’s

Office Sergeant Dannielle Jackson. Carson was not placed in handcuffs. Sgt.

Sims and Sgt. Beedle handed Carson’s identification and the money to the onsite

agents and returned to their post securing the perimeter.

The onsite agents asked Carson where he worked. Carson answered that he

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worked at a Shell gas station, breaking down boxes. The agents asked if they

could verify Carson’s employment; Carson told them he was paid under the table,

about $350 per week. Special Agent Gerhardt then had an IRS agent, Ezra Heath,

come over. The agents asked Carson if he had paid taxes on the money, and

Carson said he had not. Carson’s money was permanently seized. Special Agent

Gerhardt received Carson’s money and provided Carson with a receipt. Gerhardt

also wrote on the receipt his name and the telephone number for the FBI office in

Birmingham in case Carson wanted to contact him.

Carson was not advised of his Miranda 2 rights at any point during this

encounter.

3. January 5, 2011 Search of Carson’s Home

On January 5, 2011, law enforcement executed several arrest warrants on a

number of suspects in the drug investigation, including Carson. Law enforcement

went to Carson’s home to execute the arrest warrant. While there, as stated in the

officer’s affidavit in support of the subsequent search warrant, officers “observed a

large amount of U.S. Currency on the couch in the living room, marijuana on the

coffee table, box of sandwich bags, and a loaded magazine that belong[ed] to an

assault rifle on the bed.” Officers also “smelled a strong odor of raw marijuana

throughout the residence.” Due to the strong odor, the officers “based on training

2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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and experience,” believed “additional marijuana and other illegal drugs [could be]

stored at the location.” Law enforcement arrested Carson, secured the residence,

and sought a warrant to search the remainder of the house.

A search warrant was obtained for the following described property in

Carson’s house: “Drug proceeds, records, Controlled Substance marijuana, drug

paraphernalia, and items as outlined in Attachment 1 (items common to the drug

trade) and other evidence of illegal activity.” Attachment 1 to the search warrant

listed a number of items, including those in Paragraph 11: “Any and all other

material evidence of violations of Criminal Code of Alabama, together with fruits,

instrumentalities and evidence of crimes at this time unknown.”

Under the search warrant law enforcement seized 30 items from Carson’s

home, including items not mentioned in the warrant, such as a camcorder, two

televisions, a DVD player, a PS3 game system, a cable modem, a motorcycle

helmet, and two automobiles. Law enforcement also located and seized $5,877 in

cash, scattered between the living room, a bedroom, and in a shoebox in an air

conditioning vent. Law enforcement also found and seized two guns: an assault

rifle, a Ruger SR-556, hidden inside an air conditioning vent, and a handgun, a

Ruger SR9, hidden in the attic crawl space. They also found a small quantity of

marijuana.

4. Intercepted Phone Calls

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The task force used a variety of techniques to investigate the suspected drug

activity at 1239 McDonald Street, including controlled buys. However, the

controlled buys were only marginally successful, as law enforcement was limited

in the amount it could purchase due to the high price of the Oxycontin pills.

Search warrants executed at 1239 McDonald Street were mostly unfruitful because

the location was not a stash house and no drugs or cash were ever found inside.

And due to the nature of the drugs, customers would often ingest the Oxycontin

pills before leaving the street after purchasing them, making immediate stops of

suspected customers unproductive.

Ultimately, law enforcement sought and obtained authorization to conduct

three wiretaps. When Carlos Riggs went to jail, law enforcement used the wiretaps

on the telephones of Cameron White (who made several calls to Carlos Riggs

while in jail), Brandon Moody (the alleged supplier of Oxycontin), and Marlon

Riggs (who law enforcement thought might take over the operation after Carlos

Riggs’s arrest).

Carson participated or was mentioned in the following intercepted calls.

In an intercepted phone call on July 26, 2010, Carson called Marlon Riggs

and asked to speak with another dealer, Gavin Walker. In the course of the

conversation, Carson told Walker: “Dude in the . . . little heating van, the little AC

dude. He[’s] fixing to pull up. Give him a[n] old car.” An “old car” or “car”

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refers to an Oxycontin pill.

In an August 9, 2010 phone call, Carson called Marlon Riggs and warned

him: “The folks on Watts now,” referring to the drug investigation task force.

On August 11, 2010, Carson called Marlon Riggs and asked, “You got some

cars?” 3 Marlon Riggs responded that he did not.

In a phone call on September 9, 2010, Carson called Cameron White and

said, “You still got some hero?” White replied, “Yeah, I’m [a]bout [to] pull up at

the spot now.” 4 “Hero” refers to heroin, and “the spot” refers to 1239 McDonald

Street.

In another call on September 9, 2010, White called an unidentified male.

The unidentified male asked if White had “some of that boy.” “Boy” is another

term for heroin. White responded, “Yeah, but . . . I ain’t in Brighton right now.”

The unidentified male asked if White had left some with someone. White stated,

“Yeah, they got some down there. Little Ike got it down there at the spot. Wayne

got some too.” “Wayne” is Carson’s nickname.

In a September 10, 2010 call, Gavin Walker asked Cameron White, “Where

that skillet at?” White answered, “Damn Wayne had that bitch last.” A “skillet”

refers to a digital scale.

3
This phone call serves as the basis for Count 20, charging Carson with use of a
communication facility in furtherance of a drug trafficking offense, in violation of § 843(b).
4
This phone call serves as the basis for Count 33, charging Carson with use of a
communication facility in furtherance of a drug trafficking offense, in violation of § 843(b).
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On September 12, 2010, Walker called White and asked if anyone had any

“boy.” White responded that he had “been trying to get . . . some.” In the course

of the conversation, White asked “who all down there,” to which Walker replied,

“Me, Wayne, Fatboy . . .”

In a September 14, 2010 call, Carson called White and told him, “Tell [Ike]

white boy [is fixing] to pull up . . . in about 30 seconds.” White is then heard

telling someone, “White boy is about to pull up in [a]bout 30 seconds wanting

them OPs. Want them OPs. . . . [He] need them three.”5 “OPs” are a nickname for

the reformulated Oxycontin pills.

On September 18, 2010, Carlos Riggs called White from jail. In that call,

White complained to Riggs that Carson was not helping out at “the spot” and when

the “[b]ill man come around, he take off runnin’.”

In a September 19, 2010 intercepted phone call, Carson called White and

asked if he “got some Ps?” “Ps” refer to Oxycontin pills. In a phone call later that

same day, Carson called White again and asked if he “got some dog food?” White

answered, “Yea there is some dog food at the house.” Later in the conversation

Carson asked, “You know what I’m talking about man?” In response, White said,

“Oh, you talking about that dog food. No there ain’t no more of that. No I need to

get some of that.” “Dog food” is a nickname for heroin. But Carson and White

5
This phone call serves as the basis for Count 40, charging Carson with use of a
communication facility in furtherance of a drug trafficking offense, in violation of § 843(b).
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also had dogs, so the phone call may have referred to actual dog food.

On September 20, 2010, Carson called White. White said, “I was fixing to

see if you had some of them OPs up there.” Carson responded, “All right, I’ll try

to get you some down there in a minute.”

In a September 24, 2010 phone call, Carson again called White asking “how

many cars you got?” White said he only had one. Carson responded, “Bring me

that one.”

C. The Superseding Indictment

On March 30, 2011, the government filed a superseding indictment charging

Defendant Carson and 17 other defendants 6 with a number of offenses related to

the alleged Oxycontin and heroin drug sale operation at 1239 McDonald Street.

Specifically, the superseding indictment charged Carson with a conspiracy to

possess with the intent to distribute or distribute controlled substances lasting from

May 2008 to December 12, 2010 in violation of 21 U.S.C. § 846 (Count 1), three

counts of using a telephone to facilitate a drug trafficking offense in violation of 21

U.S.C. § 843(b) (Counts 20, 33, and 40), and one count of possessing a firearm in

connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)

(Count 59).

With regard to Count 1, all defendants were charged with conspiring to

6
These codefendants included Carlos Riggs, Marlon Riggs, Gavin Walker, and Cameron
White, among others.
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possess with the intent to distribute or distribute:

100 grams or more of a mixture and substance containing a detectible
amount of heroin . . . , a mixture and substance containing a detectable
amount of cocaine hydrochloride, . . . and an amount of oxycodone
(Oxycontin), . . . and a mixture and substance containing a detectable
amount of marijuana.

Carson was the only defendant to proceed to a trial. All other defendants

pled guilty and entered into plea agreements with the government.

D. Pretrial Motions

Prior to trial, Carson filed three motions to suppress: (1) a motion to

suppress evidence found in the January 5, 2011 search of his home; (2) a motion to

suppress the cash and guns found in Carson’s vehicle in the November 2009 traffic

stop; and (3) a motion to suppress the cash found on Carson’s person and the

statements Carson made during the September 23, 2010 police encounter.

1. First Motion to Suppress

In his first motion to suppress, Carson argued that his home was searched

pursuant to an unconstitutional general warrant. Specifically, the warrant

permitted officers to seize “Drug proceeds, records, Controlled Substance

marijuana, drug paraphernalia, and items as outlined in Attachment 1 (items

common to the drug trade) and other evidence of illegal activity.” Attachment 1

included a list of 11 rather broad categories, including paragraph 11: “Any and all

other material evidence of violations of Criminal Code of Alabama, together with

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fruits, instrumentalities and evidence of crimes at this time unknown.” Carson

alleged that the warrant impermissibly allowed law enforcement to seize almost

anything, and that the “unlawfulness of the warrant was so plain that it was

unreasonable for any competent officer to rely upon it in good faith.”

The matter proceeded to a magistrate judge. The magistrate judge first set

the motion for an evidentiary hearing, but the parties agreed that the issue could be

resolved without a hearing based on the pleadings. The magistrate judge then

issued Findings and Recommendations, ultimately recommending that the motion

to suppress should be denied because “[t]he good faith exception of Leon is

applicable to the acquisition and execution of a warrant in this case.”

The magistrate judge rejected the government’s alternative arguments that it

was not a general warrant or that the unconstitutional parts of the warrant could be

severed. First, the magistrate judge noted that in Andresen v. Maryland, 427 U.S.

463, 96 S. Ct. 2737 (1969), the Supreme Court had held that a warrant was not

unconstitutionally overbroad when it included, at the end of a list of items to be

seized, a general clause authorizing seizure of “other fruits, instrumentalities and

evidence of crime at this [time] unknown.” Id. at 479, 96 S. Ct. at 2748. But the

magistrate judge also observed that “[t]he lynchpin in Andresen was the fact that

the overly broad phrase appeared after a colon preceding the description of items to

be seized.” Viewing the Andresen warrant in context: (1) the general clause in

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Andresen was not in its own sentence and was part of a series following a list of

“items pertaining to . . . lot 13, block T” (the property to be searched) and a colon;

and (2) the word “crime” in the general clause was limited to the crime of false

pretenses charged in relation to “lot 13, block T.” Id. at 480–82, 96 S. Ct. at 2748–

49. Here, however, the warrant’s Attachment 1 “stands alone,” and “by its own

terms is not limited in scope because no limiting clause precedes the more general

clauses.”

The magistrate judge also rejected the government’s alternative argument

that any unconstitutional portion of the warrant could be severed from those

portions supporting probable cause. The magistrate judge concluded that this

could not be done here where it was impossible “to determine whether the seizures

were made pursuant to the unlawful general provision of the warrant or the more

limited one.”

However, the magistrate judge determined that the good faith exception of

United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984), should be applied to

the search conducted pursuant to the warrant. The magistrate judge first observed

that the following question had been put to the parties:

whether an officer obtaining a search warrant from a Jefferson County
[state] judge containing language which had previously been
determined by a judge of the United States District Court for the
Northern District of Alabama to be in violation of the Fourth
Amendment’s specificity requirements could be said to have acted in
objective good faith in relying on a warrant with similar defects.
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The magistrate judge agreed with the government that a U.S. district court judge’s

determination was not binding, and further observed that the Eleventh Circuit had

later held Leon’s good faith exception was applicable to the warrant in that case in

an unpublished affirmance.

The magistrate judge found the warrant in this case “far more limited in

scope” than that in the Northern District of Alabama case. Specifically, “the broad

definition of paragraph 11 [in Attachment 1] is expressly cabined by the limitation

describing Attachment 1 on the face of the warrant”: “(items common to the drug

trade).” Thus, the warrant was “limited to evidence and, therefore, presumably

violations of law common to the drug trade as opposed to a more broad definition

of items to be seized and unspecific offenses.” Accordingly, the magistrate judge

concluded that law enforcement could in good faith rely upon the warrant and

recommended Carson’s motion to suppress be denied.

2. Second and Third Motions to Suppress

Carson’s second motion to suppress sought to exclude the admission of the

firearms and money seized in the November 2009 search of his vehicle. In a third

motion to suppress, Carson sought to suppress evidence obtained in the September

2010 encounter. Specifically, Carson sought to exclude admission as evidence: (1)

the $1,440 in cash found on Carson’s person; and (2) the statements he made to

law enforcement during the encounter. Carson argued that the statements should
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be suppressed because he was in custody when the statements were made and he

was at no time advised of his Miranda rights.

The magistrate judge conducted a suppression hearing regarding Carson’s

second and third motions to suppress. At the suppression hearing, the government

presented the testimony of Detective Jacob Bradley concerning the November 4,

2009 traffic stop and search, and the testimony of Sergeant Victor Sims, Sergeant

Cameron Beedle, and Sergeant Dannielle Jackson concerning the September 2010

stop.

The officers testified to the events described above in relation to the

September 2010 stop. Notably, on cross-examination of Sgt. Sims, defense

counsel questioned Sgt. Sims about conducting the pat-down of Carson:

[Defense Counsel:] Well—now, when you patted [Carson] down, you
put him on the—pat him down?
[Sgt. Sims:] Yes, sir.
[Defense Counsel:] You’re looking for weapons?
[Sgt. Sims:] Yes, sir.
[Defense Counsel:] Did you find any weapons?
[Sgt. Sims:] No, sir.
[Defense Counsel:] Did you find anything that was hard?
[Sgt. Sims:] Not that I can recall, no, sir.
[Defense Counsel:] But then you saw something soft?
[Sgt. Sims:] Yes, sir.
[Defense Counsel:] Did you think that was a weapon?
[Sgt. Sims:] No, sir. I recognized it as money, as a roll of money.
[Defense Counsel:] But when you patted him down, did you think it
was a weapon?
[Sgt. Sims:] No, sir.
[Defense Counsel:] But you asked him what it was?
[Sgt. Sims:] Yes, sir.
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[Defense Counsel:] At that time, [Carson] had—not spreading but had
his hands on the car?
[Sgt. Sims:] Yes, sir.
[Defense Counsel:] Was he free to go?
[Sgt. Sims:] He was not free to go, per se.
[Defense Counsel:] All right. Well, when you asked him those
questions, did you—before you asked him those questions, did you
give him his rights?
[Sgt. Sims:] I didn’t read him his rights, no, sir.
[Defense Counsel:] Did anybody read him his rights at that time?
[Sgt. Sims:] No, sir.
[Defense Counsel:] All right. And then you got the money?
[Sgt. Sims:] I asked him, and he gave me permission.

After the suppression hearing, the magistrate judge issued Findings and

Recommendations.

The magistrate judge first recommended denying Carson’s motion to

suppress the evidence obtained in the November 2009 search of his car because

Detective Bradley had probable cause to stop Carson’s car, Detective Bradley’s

questions during the stop were constitutionally permissible, and Carson’s consent

to the search of the car and seizure of the cash and guns was voluntary.

The magistrate judge also recommended denying Carson’s motion to

suppress the evidence of the cash and Carson’s statements made during the

September 2010 stop. Most relevant here, the magistrate judge made this

recommendation because: (1) the Terry7 stop of Carson was based on reasonable

suspicion that he was engaged in criminal activity; (2) Carson consented to

7
Terry v. Ohio, 392 U.S. 1, 30–31, 88 S. Ct. 1868, 1884–85 (1968).
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removal of the cash from his pocket; (3) Carson was not in custody for Miranda

purposes when he was walked from where he was initially stopped to the agents at

1239 McDonald Street; and (4) Carson was not in custody when he spoke with the

onsite agents at 1239 McDonald Street. The magistrate judge stated that “Carson

was simply not in custody at the time he made” the statements to the officers, and

even after being moved to 1239 McDonald Street, “he was not under arrest. . . .

[n]or was Mr. Carson in custody” for purposes of Miranda.

Over Carson’s objections to the magistrate judge’s findings and

recommendations as to all three motions to suppress, the district court concluded

that “the magistrate judge’s report on all three of these issues is due to be and is

hereby adopted, and the recommendations of the magistrate judge are accepted by

this Court.”

3. Motion in Limine

Carson also filed a motion in limine seeking to exclude items seized from his

home in the January 5, 2011 search, specifically the two guns found. Carson

argued that these items were: (1) irrelevant to the conspiracy charged in the

superseding indictment; and (2) unfairly prejudicial, as he would admit to being a

drug user at trial. After hearing argument on the motion in limine, the district court

denied it.

E. Carson’s Trial

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Carson’s jury trial began on August 29, 2011.

During the first day of trial, Carson’s defense counsel objected that it had

only received redacted copies of the wiretap applications and orders, and the

statute governing these wiretaps required unredacted copies be provided to the

defense at least 10 days prior to trial. The government explained that the

redactions were related to individuals who were involved in ongoing

investigations. Based on the district court’s “cursory review,” the district court

stated that the redactions appeared to be consistent with the government’s

explanation. The district court overruled defense counsel’s objection but ordered

the government to provide the defense with unredacted copies of the wiretap

applications and orders by the end of the day.

The government furnished these copies the next morning. Despite receiving

unredacted copies, defense counsel maintained its argument that “the statute says

what it says,” and the government’s failure to produce unredacted copies of the

wiretap applications 10 days prior to trial precluded admission at trial of the

intercepted phone calls and other evidence resulting from the wiretaps.

The district court rejected the defense’s argument. The district court

observed that having reviewed the redacted copies, “the Court believes that they

were complete enough for you to have all of the basic elements that you need to

cross-examine or to be ready for trial.” Further, any prejudice caused by delay in

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receiving the unredacted copies had been rectified by defense counsel receiving

them that day. The district court also told the defense it could have additional time

to review the unredacted copies and even offered to delay trial if necessary for

defense counsel to complete that review.

In its case-in-chief, the government presented the testimony of numerous

law enforcement officers that participated in the investigation, including Special

Agent Gerhardt, Sgt. French, Detective Bradley, Sgt. Sims, and Sgt. Beedle; the

wiretapped phone conversations involving Carson; and the testimony of several of

Carson’s codefendants: Carlos Riggs, Marlon Riggs, Cameron White, Gavin

Walker, and Demarcus Witt.

The defense case proceeded on a theory that Carson was a small-time drug

dealer and drug user, but he was not part of the Riggs organization and thus not a

member of the charged conspiracy. The defense called witnesses who testified that

Carson visited those he knew at 1239 McDonald Street for social reasons and that

he had little discretionary money.

Carson also testified in his defense. First, Carson admitted that he sold

drugs beginning in 2009. But Carson denied that his drug dealing was part of the

Riggs organization. Carson said his involvement with the Riggs brothers and

others in the organization was strictly for “[e]ntertainment purposes.”

Carson said he did deal drugs at times on McDonald Street, but claimed that

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he was kicked off the street three times by Carlos Riggs. And Carson said he

purchased from Riggs’s dealers only three times when his own supplier ran out.

Carson said he otherwise did not deal with the Riggs organization because their

prices were higher and he was afraid of Carlos Riggs. On each occasion he dealt

with the Riggs organization, Carson had no intention of making it a continuous

arrangement.

Notably, Carson did not contest that he participated in the wiretapped phone

conversations and that these phone conversations concerned drug transactions—

including the three calls that anchored the three counts of using a telephone in

furtherance of the drug conspiracy. For the most part, Carson’s defense was that

the various phone calls referenced individual transactions in line with his own

small-time drug dealing and personal drug use. For instance, Carson said that the

July 26, 2010 phone call in which he asked Gavin Walker to give a man in a van a

pill was to pay for the man’s work on Carson’s air conditioning unit. In the

September 9, 2010 phone call in which Carson asked Cameron White for some

heroin, Carson said he was interested in obtaining it only as a customer and

planned to use it with a girl. In the phone call referencing dog food, Carson said he

meant actual dog food and not heroin.

Carson also testified that the September 18, 2010 phone call between

Cameron White and Carlos Riggs referenced a falling out he had with White, and

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supported his argument that Carlos Riggs often kept him from selling on

McDonald Street.

On September 2, 2011, the jury returned its verdict. The jury found Carson

guilty on Count 1 of conspiring to possess with the intent to distribute or distribute

oxycodone (Oxycontin) and heroin. The jury found the conspiracy involved an

amount of heroin weighing less than 100 grams. The jury found Carson guilty as

to Counts 20, 33, and 40, charging use of a communication facility in furtherance

of a drug trafficking offense. Lastly, the jury found Carson not guilty on Count 59

charging possession of a firearm in furtherance of a drug trafficking offense.

F. Carson’s Sentence

On February 1, 2012, the district court entered a judgment sentencing

Carson to 210 months’ imprisonment as to the drug conspiracy conviction, and 48

months’ imprisonment as to each of the three convictions for use of a

communication facility to facilitate a drug trafficking offense, all sentences to run

concurrently with one another.

Carson filed this timely appeal.

II. CARSON’S STATEMENTS IN THE SEPTEMBER 2010 ENCOUNTER

A. Standard of Review

“We apply a mixed standard of review to the denial of a defendant’s motion

to suppress, reviewing the district court’s findings of fact for clear error and its

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application of law to those facts de novo.” United States v. Tamari, 454 F.3d

1259, 1261 (11th Cir. 2006) (internal quotation marks omitted).

B. Miranda Discussion

On appeal, Carson first argues that the statements he made to law

enforcement in the September 2010 encounter should have been suppressed as they

were made without Carson first being advised of his rights under Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). Specifically, Carson challenges the

admission of: (1) his statements to Sergeant Sims and Sergeant Beedle when he

was first stopped, including his statement concerning where he obtained the $1,440

in cash; and (2) his statements to Special Agent Gerhardt and Sergeant Jackson

after being escorted to 1239 McDonald Street. Carson maintains he was in custody

for the duration of the encounter and was therefore entitled to Miranda warnings

prior to any questioning by law enforcement.

The Fifth Amendment provides individuals with a right against self-

incrimination. U.S. Const. amend. V. In Miranda v. Arizona, the Supreme Court

held that the government may not use a defendant’s statements elicited during a

custodial interrogation against that defendant unless officials provide specific

warnings concerning the defendant’s rights against self-incrimination beforehand.

United States v. Woods, 684 F.3d 1045, 1055 (11th Cir. 2012) (per curiam).

But the trigger for Miranda protections is custody. A person is in custody

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for purposes of Miranda if, under the totality of the circumstances, a reasonable

person would believe the restraint on his freedom of movement has been curtailed

to the degree associated with a formal arrest. United States v. Lall, 607 F.3d 1277,

1284 (11th Cir. 2010). In assessing whether a reasonable person in Carson’s

position would have understood his freedom of movement to have been curtailed

in this way, “we consider the totality of the circumstances, including whether the

officers brandished weapons, touched the suspect, or used language or a tone that

indicated that compliance with the officers could be compelled, as well as the

location and length of the detention.” United States v. Luna-Encinas, 603 F.3d

876, 881 (11th Cir. 2010) (internal quotation marks and citations omitted).

For instance, a person temporarily detained pursuant to an ordinary traffic

stop is not “in custody” for the purposes of Miranda. Berkemer v. McCarty, 468

U.S. 420, 440, 104 S. Ct. 3138, 3150 (1984). This Court has further held that a

defendant stopped pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), is

not “in custody” for Miranda purposes where the restraint used is “the minimal

amount necessary for such a stop” and the circumstances of the stop do not involve

“the type of ‘highly intrusive’ coercive atmosphere that may require Miranda

warnings even before a formal arrest is made.” United States v. Acosta, 363 F.3d

1141, 1150 (11th Cir. 2004).

Carson alleges that the stop and questioning he was subjected to by law

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enforcement amounted to custodial interrogation because: (1) he was ordered to

place his hands on the patrol car; (2) the officers searched him and took away his

money and identification; 8 and (3) the officers then took him to another area for

further questioning. In response, the government argues that Carson was not in

custody for Miranda purposes because: (1) he was standing on a public street in

public view; (2) he was questioned only briefly; (3) Carson was never placed in

handcuffs or arrested; and (4) the officers never brandished their weapons.

Alternatively, the government argues that even if Carson was in custody, any error

in the admission of his two statements was harmless.

We need not resolve the custody issue because even assuming that Carson

was subjected to custodial interrogation without the benefit of Miranda warnings,

“[t]he admission of statements obtained in violation of Miranda is subject to

harmless error scrutiny.” United States v. Arbolaez, 450 F.3d 1283, 1292 (11th

Cir. 2006) (per curiam). Under harmless error scrutiny, “[t]he question is whether

there is a reasonable probability that the evidence complained of might have

contributed to the conviction.” Id. (internal quotation marks omitted). Thus, we

must decide whether “after we subtract the statements that should not have been

admitted at [Carson’s] trial, the remaining evidence is so overwhelming that we are

8
Carson’s assertion here is premised on the fact that at trial, Sgt. Beedle testified that
upon taking Carson to Special Agent Gerhardt and Sgt. Jackson, Sgt. Beedle “handed his
identification [to the officers and] said, ‘Here’s him. Here’s his money.’” According to Carson,
this “prov[es] that they had taken the identification.”
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convinced beyond a reasonable doubt that the improperly admitted evidence did

not affect the verdict.” United States v. Street, 472 F.3d 1298, 1315 (11th Cir.

2010); see United States v. Gari, 572 F.3d 1352, 1362 (11th Cir. 2009). The

government bears the burden to demonstrate that an error was harmless beyond a

reasonable doubt. United States v. Lee, 427 F.3d 881, 892 (11th Cir. 2005).

The non-Mirandized statements introduced from the September 2010

encounter were essentially that: (1) Carson first said he had obtained the $1,440 in

cash found on his person from working at a steel plant but then said it was payment

for breaking down boxes at a Shell gas station; and (2) Carson said he did not live

on McDonald Street and was in the area because he had been visiting a girl. 9

Subtracting these two statements Carson made to law enforcement in the

September 2010 encounter concerning where he obtained the cash and why he was

in the area, the remaining evidence of Carson’s guilt is overwhelming.

Carson’s testimony alone could support the verdict. First, Carson admitted

that he was a drug dealer, and at times he sold drugs, including Oxycontin, on

McDonald Street. Carson also acknowledged that he associated with many

members of the Riggs organization, particularly Marlon Riggs. On three

occasions, Carson conceded he purchased drugs from Riggs organization members

when his own supplier ran out, and on one of those occasions he purchased heroin.

9
Carson’s other statements during the encounter, including that Carson had been paid
“under the table” and had not paid taxes on those earnings, were not admitted at trial.
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As for the wiretapped phone conversations, Carson admitted it was his voice on the

calls, including the three phone calls that served as the bases of the three counts for

use of a telephone in furtherance of the drug conspiracy.

While Carson testified fervently that these isolated incidents did not mean he

was part of the charged drug conspiracy, the jury was free to not only disbelieve

Carson’s testimony but also to conclude the exact opposite of what he said was

true and to use it as substantive evidence against him. See United States v.

Williams, 390 F.3d 1319, 1325 (11th Cir. 2004).

Additionally, Carson’s codefendants testified that Carson sold pills at 1239

McDonald Street, both providing Oxycontin pills to Riggs organization members

for resale and purchasing pills to sell himself. When the Riggs organization

switched from selling Oxycontin to selling heroin, one of Carson’s codefendants

testified that Carson became a major source of heroin. And despite Carson’s

assertions that he often purchased the drugs for his own use, a number of Carson’s

codefendants testified that they had never seen Carson use Oxycontin or heroin.

We must also consider the impact the admission of these two statements had

on the other evidence and on Carson’s defense. See Arbolaez, 450 F.3d at 1293

(“[T]he court must inquire into (1) the effect of the erroneously admitted statement

upon the other evidence introduced at trial, and (2) upon the conduct of the

defense.” (internal quotation marks omitted)). The admission of these statements

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showed Carson was inconsistent concerning where he had obtained the cash and

about where he lived. But in the absence of these statements, other evidence

showed Carson had $2,000 in cash during the November 2009 traffic stop and

$5,877 in cash at his home in the January 2011 search. More importantly, the

testimony of Carson’s codefendants significantly undermined his credibility on

every key point, even without the statements. Furthermore, Carson has never

indicated that the admission of these two non-Mirandized statements affected his

defense in any way. For example, he has never claimed that he would not have

testified had these statements been excluded.

Finally, these statements played little if any role in the government’s case

against Carson. The two non-Mirandized statements from the September 2010

encounter, while introduced, were not emphasized by the government during trial,

during cross-examination of Carson, or in closing argument.

Accordingly, we are convinced beyond a reasonable doubt that the

admission of the statements Carson made without the benefit of Miranda warnings

in the September 2010 encounter did not contribute to the jury’s verdict. Thus, we

affirm the district court’s denial of Carson’s motion to suppress the statements.

III. WARRANT TO SEARCH CARSON’S HOME

A. Standard of Review

As noted above, in reviewing a district court’s denial of a motion to

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suppress, this Court reviews factual findings for clear error and applications of law

de novo. See Tamari, 454 F.3d at 1261. The government says, though, that

because the district court’s ruling on Carson’s motion to suppress the results of the

warrant was based entirely on written evidence, this Court’s review should be

completely de novo. See United States v. Pulvano, 629 F.2d 1151, 1156 (5th Cir.

1980). 10

B. Discussion

On appeal, Carson argues that the district court improperly applied the good

faith exception to the warrant requirement in denying his motion to suppress the

results of the January 5, 2011 search of his home. Carson argues that a reasonably

trained police officer would have known the warrant was unconstitutionally broad

because it permitted law enforcement to “seize virtually anything they thought

might be connected with any criminal activity.” In support, Carson cites the “bare

minimum” amount of education Alabama police officers receive regarding

criminal procedures and laws.

The government argues that the district court’s ruling may be affirmed

because: (1) the search warrant was not overly broad and thus not an

unconstitutional general warrant; (2) even if overbroad, the unconstitutionally

10
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions prior to September 30,
1981.
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overbroad sections of the warrant may be severed from those portions supported by

probable cause; and (3) as the district court held, at the very least, the motion was

properly denied on the basis of the good faith exception.

The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. It further provides that “no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” Id.

“The manifest purpose of this particularity requirement was to prevent general

searches.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 1016 (1987).

The exclusionary rule operates to safeguard Fourth Amendment rights like the

particularity requirement for a search warrant. United States v. Calandra, 414 U.S.

338, 348, 94 S. Ct. 613, 620 (1974).

But under United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1985), the

prosecution is not barred from using in its case-in-chief evidence obtained by law

enforcement officers that acted in reasonable reliance on a search warrant issued by

a detached, neutral magistrate but ultimately found to be invalid. See id. at 913,

104 S. Ct. at 3415. This Court has explained that Leon’s good faith exception

applies in all but four limited sets of circumstances:

(1) where the magistrate or judge in issuing a warrant was misled by
information in an affidavit that the affiant knew was false or would
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have known was false except for his reckless disregard of the truth;
(2) where the issuing magistrate wholly abandoned his judicial role . .
. ; (3) where the affidavit supporting the warrant is so lacking in
indicia of probable cause as to render official belief in its existence
entirely unreasonable; and (4) where, depending upon the
circumstances of the particular case, a warrant is so facially
deficient—i.e., in failing to particularize the place to be searched or
the things to be seized—that the executing officers cannot reasonably
presume it to be valid.

United States v. Martin, 297 F.3d 1308, 1313 (11th Cir. 2002) (internal quotation

marks omitted). Here, Carson challenges the application of the good faith

exception based on the fourth circumstance.

We conclude that this case does not fit within the fourth circumstance, and

thus the district court’s ruling that the good faith exception applies is due to be

affirmed.

Here, the affidavit specified the location to be searched and the items to be

seized, including marijuana, which law enforcement attested to observing at the

residence. The inclusion of a “catch-all” provision in Attachment 1 does not

render the warrant “so facially deficient . . . that the executing officers cannot

reasonably presume it to be valid.” Leon, 468 U.S. at 923, 104 S. Ct. at 3421. For

instance, in Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737 (1976), the

Supreme Court concluded that a similarly challenged phrase was constitutional as

it “must be read as authorizing only the search for and seizure of evidence relating

to” the specific crime at issue. Id. at 480, 96 S. Ct. at 2748. While in Andresen,

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the general clause came after the specific items to be seized and a specified crime

to which the items contained in the general clause must relate, in this case, the face

of the warrant limited the items in Attachment 1 to those “common to the drug

trade.” Accordingly, the warrant was not so facially deficient that the executing

officers could not have reasonably presumed it was valid. We affirm the district

court’s denial of Carson’s motion to suppress the results of the search warrant.

IV. ADMISSION OF THE FIREARMS

A. Standard of Review

We review a district court’s ruling on the admission of evidence for an abuse

of discretion. United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013). “An

abuse of discretion occurs if the district court applies an incorrect legal standard or

makes findings of fact that are clearly erroneous.” Id. (internal quotation marks

omitted). Even if Carson succeeds in demonstrating an abuse of discretion in the

admission of evidence, “nonconstitutional evidentiary errors are not grounds for

reversal absent a reasonable likelihood that the defendant’s substantial rights were

affected.” Id. Moreover, “[i]n reviewing issues under Federal Rule of Evidence

403, we look at the evidence in a light most favorable to its admission, maximizing

its probative value and minimizing its undue prejudicial impact.” Id. (internal

quotation marks and alterations omitted).

B. Discussion

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Carson’s third claim is that the admission of the two firearms found in his

home was unduly prejudicial, irrelevant, and unnecessary, as he readily conceded

that he was a drug dealer and the admission of the firearms served no probative

purpose. Carson primarily relies on United States v. Beechum, 582 F.2d 898 (5th

Cir. 1978), for the proposition that if the government already possesses a strong

case on the defendant’s intent to commit a crime or intent is not contested, the

probative value of admitting that evidence to prove that intent will be outweighed

by prejudice to the defendant. Id. at 914.

We can easily dispense with this argument. First, the evidence was clearly

relevant. As we have previously recognized, guns are “tools of the trade” in drug

trafficking. See United States v. Lopez, 649 F.3d 1222, 1242 (11th Cir. 2011).

And despite Carson’s concession that he was a drug dealer, Carson’s possession of

firearms was highly relevant to the government’s argument that Carson was not a

small-time drug dealer as he claimed. See also Old Chief v. United States, 519

U.S. 172, 188, 117 S. Ct. 644, 654 (1997) (“Thus, the prosecution may fairly seek

to place its evidence before the jurors, as much to tell a story of guiltiness as to

support an inference of guilt, to convince the jurors that a guilty verdict would be

morally reasonable as much as to point to the discrete elements of a defendant’s

legal fault.”).

Finally, Beechum is factually distinguishable. Beechum concerned the

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circumstance where the government attempted to admit evidence of intent to

commit an extrinsic offense and not the offense with which the defendant was

charged. 582 F.2d at 911–14. That is not the case here. The firearms evidence

was admitted as part of the government’s case on the offenses actually charged.

Given the high threshold required to apply the bar of Federal Rule of

Evidence 403, we conclude that the district court did not abuse its discretion in

declining to apply that bar here and in admitting the evidence of the firearms.

V. REDACTED WIRETAP APPLICATIONS AND ORDERS

A. Standard of Review

This Court reviews an issue of statutory interpretation de novo. United

States v. Lanzon, 639 F.3d 1293, 1298 (11th Cir. 2011).

B. Discussion

Carson’s next argument on appeal is that the contents of the wiretapped

conversations and evidence obtained under the wiretaps should have been excluded

because “only parts” of the supporting applications and orders were provided to the

defense prior to trial.

Pursuant to 18 U.S.C. § 2518(9),

The contents of any wire, oral, or electronic communication
intercepted pursuant to this chapter or evidence derived therefrom
shall not be received in evidence or otherwise disclosed in any trial,
hearing, or other proceeding in a Federal or State court unless each
party, not less than ten days before the trial, hearing, or proceeding,
has been furnished with a copy of the court order, and accompanying
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application, under which the interception was authorized or approved.
This ten-day period may be waived by the judge if he finds that it was
not possible to furnish the party with the above information ten days
before the trial, hearing, or proceeding and that the party will not be
prejudiced by the delay in receiving such information.

18 U.S.C. § 2518(9) (emphasis added). In accordance with the statute, the

government furnished the defense with copies of the applications and court orders

at least 10 days prior to trial. But the copies contained redactions. Upon Carson’s

objection, the government did provide Carson with unredacted copies at the

beginning of the second day of trial.

In response, the government argues that: (1) Carson waived this argument

because he did not move to suppress the evidence on this basis; (2) the government

complied with the statute’s requirements and the statute does not explicitly require

disclosure of unredacted copies of the application and order; and (3) even if the

statute required unredacted copies, the failure to comply with that requirement

caused Carson no prejudice and thus the evidence should not be suppressed.

Despite Carson’s failure to move to suppress the evidence, Carson did

preserve a timely objection on the basis that the government failed to comply with

§ 2518(9). Thus, we assume Carson did not waive this claim. We also agree with

the government that the statute does not explicitly require the government to

furnish the defendant with unredacted copies of a wiretap application and/order,

although we can certainly imagine a scenario in which an application and/or order

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is so heavily redacted that it frustrates the purpose of the disclosure. But even

assuming that Carson did not waive the issue and the statute requires complete

copies, we conclude that Carson’s claim here fails.

In United States v. Caggiano, a Unit B panel of the Fifth Circuit 11 held that a

technical violation of 18 U.S.C. § 2518(8)(b), requiring an issuing judge to seal a

wiretap application and order, did not require suppression of the evidence obtained

pursuant to the wiretap, so long as “the procedures actually employed fulfilled the

purpose of [the statute] and the technical noncompliance did not prejudice the

defendants.” 667 F.2d 1176, 1178 (5th Cir. Unit B 1982). The panel observed that

“[a] failure to comply with the procedures of . . . § 2518(8)(b) may render an

interception unlawful and its fruits inadmissible under 18 U.S.C. § 2518(10)(a)(i),”

id. at 1178–79, which provides that an “aggrieved person . . . may move to

suppress the contents of any intercepted wire or oral communication . . . , or

evidence derived therefrom, on the grounds that . . . the communication was

unlawfully intercepted.” 18 U.S.C. § 2518(10)(a). However, “[s]uch technical

noncompliance necessitates suppression . . . only if the violated procedure is a

central or a functional safeguard in the statutory scheme to prevent abuses of the

wiretap act and if the purpose of the procedure has been frustrated or the procedure

has been deliberately ignored.” Caggiano, 667 F.2d at 1179.

11
Decisions issued by a Unit B panel of the former Fifth Circuit are binding on this Court.
See Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
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In applying those principles to Caggiano, the panel first “assume[d] that the

sealing requirement is a central or a functional safeguard.” Id. But the defendants

failed to show prejudice from this technical violation of § 2518(8)(b): the

defendants “have not suggested that the procedure which was in fact employed

promoted any breach of confidentiality or that they were in any other way

prejudiced by the noncompliance . . . ; nor do they suggest that the government

deliberately circumvented the sealing requirement.” Id. Accordingly, the panel

held that the contents of the wiretapped conversations were properly admitted into

evidence.

This Court has not confronted this issue in the specific context of a

government’s alleged noncompliance with § 2518(9). However, the Fourth

Circuit, in an unpublished decision, United States v. Owen, 966 F.2d 1445 (4th Cir.

1992) (table), considered a defendant’s challenge to the admission of any evidence

obtained pursuant to a wiretap when the government did not provide the

applications and orders at least 10 days prior to trial, instead providing them on the

first day of trial, in violation of § 2518(9). Id. at *1. Citing our prior panel’s

opinion in Caggiano, the Fourth Circuit observed that “[t]echnical noncompliance

with the wire interception statute necessitates suppression ‘only if the violated

procedure is a central or a functional safeguard in the statutory scheme to prevent

abuses of the wiretap act and if the purpose of the procedure has been frustrated or

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the procedure has been deliberately ignored.’” Id. at *2 (quoting Caggiano, 667 at

1179).

Applying these principles in Owen, the Fourth Circuit held that the evidence

should not be suppressed for the government’s technical noncompliance with

§ 2518(9). Specifically, the defendants in Owen failed to: (1) demonstrate “that

the government’s failure to furnish them a copy of the court interception order and

its application frustrated the purposes of the act or that the government deliberately

ignored its procedures”; and (2) “[m]ore importantly, [defendants had] not

established that they suffered any prejudice because they did not receive the

information until the day trial commenced.” Id. at *2.

We conclude that even if providing only redacted copies of the wiretap

application and orders technically violated § 2518(9), the district court correctly

held that the contents of the communications and evidence obtained pursuant to

them should not be suppressed. Certainly the fact that the statute does not

explicitly require unredacted copies weighs against a determination that disclosure

of unredacted, complete copies is a “central or a functional safeguard in the

statutory scheme.” But more importantly, Carson does not allege being provided

redacted copies prior to trial prejudiced his defense. Indeed, Carson concedes that

his only prejudice is the admission of the recordings. Furthermore, the district

court informed defense counsel that the trial could be pushed back if necessary so

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that the defense could fully review and use the unredacted copies. The defense

apparently did not take up the district court’s offer. Thus, Carson suffered no

prejudice from the delay in receiving unredacted copies.

Ultimately, Carson does not demonstrate that the failure to furnish him with

complete copies prior to trial frustrated the purpose of the statute or that the

government deliberately ignored the statute, and Carson concedes that he suffered

no prejudice due to any noncompliance with the statute. We affirm the district

court’s ruling permitting admission of the wiretap evidence.

VI. DISCLOSURE OF CODEFENDANTS’ PLEA AGREEMENTS

A. Standard of Review

This Court reviews de novo alleged Brady/Giglio violations. See United

States v. Jones, 601 F.3d 1247, 1266 (11th Cir. 2010).

B. Discussion

Carson’s fifth argument on appeal is that the government violated Brady12

and Giglio 13 by failing to disclose that the government had agreed with cooperating

codefendants that the government would not disclose evidence of certain drug

quantities at the codefendants’ sentencings. While Carson concedes that he had

the codefendants’ plea agreements and knew the attribution amounts agreed to by

12
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
13
Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972).
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each codefendant, Carson points out that statements in the government’s

sentencing memorandum demonstrate another component of those plea agreements

was not disclosed to him. Specifically, he says the government alludes to this

component in his sentencing memorandum when the government states that “the

Government agreed not to present additional evidence of drug quantities at [the]

sentencing” of the codefendants. Had he known the government agreed with his

codefendants not to present evidence of higher quantity amounts, Carson says,

“this additional information would have been a sharp tool to use in the cross-

examination of the government witnesses.”

Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), “the

suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S. Ct. at

1196–97. In order to establish a Brady claim, the defendant must show that: (1)

“the government possessed evidence favorable to the defendant”; (2) “the

defendant does not possess the evidence nor could he obtain it himself with any

reasonable diligence”; (3) “the prosecution suppressed the favorable evidence”;

and (4) “had the evidence been disclosed to the defense, a reasonable probability

exists that the outcome of the proceedings would have been different.” United

States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001) (per curiam) (internal

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quotation marks omitted).

In Giglio, the Supreme Court applied Brady to hold that, where a witness’s

credibility is at issue, the government is required to disclose evidence bearing on

the witness’s credibility. Giglio v. United States, 405 U.S. 150, 154–55, 92 S. Ct.

763, 766 (1972). “Impeachment evidence should be disclosed in time to permit

defense counsel to use it effectively in cross-examining the witness.” United

States v. Jordan, 316 F.3d 1215, 1253 (11th Cir. 2003).

But the delayed disclosure of Brady/Giglio material compels reversal only

when the defendant demonstrates prejudice. United States v. Beale, 921 F.2d

1412, 1426 (11th Cir. 1991). Specifically in the context of the government’s

failure to disclose impeachment evidence, a defendant is prejudiced where there is

a “reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.” United States v.

Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985).

Carson does not contest that the government disclosed the plea agreements

of the codefendants. Carson’s entire Brady/Giglio argument is premised on the

idea that the government’s statements in his sentencing memorandum—that the

government agreed it would not argue the cooperating codefendants were

responsible for higher quantities of drugs at the codefendants’ sentencings—

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demonstrate undisclosed “side agreements” favorable to the defense.

A threshold question is whether this is favorable evidence the government

failed to disclose. As the government argues, the plea agreements contained, and

the government disclosed, the agreed-upon amounts of drugs attributable to each

codefendant for sentencing purposes. The government says, and it seems

inherently logical, that the agreed-to attribution amounts and the “undisclosed”

side agreements that the government would not introduce additional drug

quantities at sentencing are the same agreements.

Moreover, at trial Carson had the opportunity and indeed did vigorously

cross-examine the codefendants about the plea agreements. Defense counsel

questioned Carlos Riggs about the plea agreement and the fact that he admitted to

agents that he was supplied with “a thousand pills at a time” to sell on McDonald

Street. Through Special Agent Gerhardt’s testimony in the government’s case-in-

chief, defense counsel knew (and the jury heard) that the 17 codefendants agreeing

to guilty pleas had actually admitted the conspiracy involved the sale of over

60,000 Oxycontin pills. Defense counsel asked several of the codefendants

whether they were attributed this greater amount or a smaller amount. For

instance, in cross-examining Cameron White, defense counsel asked:

[Defense Counsel:] And you and the Government negotiated an
amount of drugs to be attributed to you, correct?
[Cameron White:] Yes.
[Defense Counsel:] Now, did the Government attribute to you 60,000
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pills?
[White:] No.
[Defense Counsel:] They attributed to you how many pills, do you
remember?
[White:] I think—
[Defense Counsel:] Just a minute. Let me just . . . at least 20, but less
than 50?
[White:] Yes.
[Defense Counsel:] Plus 100 grams of heroin, but less than 400 grams
of heroin?
[White:] Yes.

Similarly, defense counsel questioned Gavin Walker about his plea agreement and

the applicability of the sentencing guidelines, and noted that his sentence would be

“determined in large part by the amount of drugs attributed to you.” Defense

counsel then confirmed that in his plea agreement with the government: (1) Walker

did not agree to an attribution amount of 60,000 Oxycontin pills; and (2) Walker

agreed to an attribution amount of 20,000 to 50,000 pills and 100 to 400 grams of

heroin.

In sum, there is no favorable evidence that the government suppressed.

Carson knew the attribution amounts agreed to by the government and his

codefendants, and Carson knew that these amounts were less than that thought to

have been attributable to the entire conspiracy. Implicit in those agreed-to

attribution amounts was that the government would only seek to show the

codefendants were responsible for those amounts. And in any event, Carson

cannot show prejudice; this information, even if it was not disclosed, would not

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have altered the proceedings. Accordingly, Carson’s claim fails.

VII. JURY CHARGE AND INDICTMENT

A. Standard of Review

We review a district court’s jury instructions de novo “to determine whether

the instructions misstated the law or misled the jury to the prejudice of the

objecting party.” United States v. Felts, 579 F.3d 1341, 1342 (11th Cir. 2009) (per

curiam). We will not reverse a defendant’s conviction based on a challenge to a

jury charge unless the Court is “left with a substantial and ineradicable doubt as to

whether the jury was properly guided in its deliberations.” Gibson, 708 F.3d at

1275 (internal quotation marks omitted).

B. Discussion

Carson’s sixth and seventh challenges are claims that the jury instructions

constructively amended the superseding indictment in violation of the Fifth

Amendment, permitting the jury to convict Carson for a conspiracy not charged by

the indictment.

“It is well settled that a defendant enjoys a Fifth Amendment right to be tried

on felony charges returned by a grand jury indictment and that only the grand jury

may broaden the charges in the indictment once it has been returned.” United

States v. Sanders, 668 F.3d 1298, 1309 (11th Cir. 2012) (per curiam). A district

court may not broaden the charges by constructive amendment. Id. “In evaluating

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whether the indictment was constructively amended, we review the district court’s

jury instructions . . . in context to determine whether an expansion of the

indictment occurred either literally or in effect.” United States v. Seher, 562 F.3d

1344, 1363 (11th Cir. 2009) (internal quotation marks omitted). “A jury

instruction amends an indictment when it broadens the possible bases for

conviction beyond what is contained in the indictment.” Id. (internal quotation

marks and alterations omitted).

Carson argues two jury charges constructively amended the superseding

indictment: (1) the conspiracy charge permitted the jury to convict Carson of a

conspiracy to distribute any one of the controlled substances listed in the

indictment, while the indictment charged Carson with a conspiracy to distribute all

four controlled substances; and (2) the conspiracy charge allowed the jury to

convict Carson for a “lesser-included offense” of conspiring to possess with the

intent to distribute less than 100 grams of heroin, while the indictment charged

Carson with a conspiracy to possess with the intent to distribute more than 100

grams of heroin.

The government responds that: (1) “the law is well established that where an

indictment charges in the conjunctive several means of violating a statute, a

conviction may be obtained on proof of only one of the means, and accordingly the

jury instruction may properly be framed in the disjunctive,” see United States v.

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Simpson, 228 F.3d 1294, 1300 (11th Cir. 2009); and (2) the inclusion of a charge

on the amount of heroin involved in the conspiracy mattered only for purposes of

sentencing and did not constructively amend the indictment.

We next review the relevant jury instructions. Specifically over the

defendant’s objection, the district court instructed the jury that:

as to Count One, you will note that the Defendant is not charged with
committing a substantive offense; rather, he is charged with
conspiring to commit the offense.
It’s a separate Federal crime for anyone to conspire to
knowingly possess with intent to distribute oxycodone, heroin,
cocaine hydrochloride or marijuana.
While the Indictment is worded in the conjunctive, the law
permits the government to prove the conspiracy charged in the
disjunctive. In other words, in order for a defendant to be found
guilty, it will be sufficient if the government proves beyond a
reasonable doubt that the defendant conspired to possess one of the
controlled substances mentioned in Count 1, even if they were not
involved in the other conspiracy, as long as all 12 of you agree as to
which conspiracy the defendant was involved in. So, for example, if
all 12 of you find beyond a reasonable doubt that the defendant was
involved in a conspiracy to distribute and possess with the intent to
distribute oxycontin, that would be sufficient to convict the defendant
of Count One, even if you find the defendant was not also involved in
a conspiracy to distribute and possess with the intent to distribute
heroin, cocaine hydrochloride or marijuana.
....
The Defendant can be found guilty only if all the following
facts are proved beyond a reasonable doubt:
(1) two or more people in some way agreed to try to
accomplish a shared and unlawful plan to possess heroin,
or oxycodone, or cocaine hydrochloride, or marijuana, as
described in Count One;
(2) the Defendant . . . knew the unlawful purpose of the plan
and willfully joined in it; and
(3) the object of the unlawful plan was to possess with the
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intent to distribute oxycodone, or cocaine hydrochloride,
or marijuana, or more than one hundred grams of heroin.

The district court also included, with the defendant’s approval, a multiple

conspiracies charge in line with Eleventh Circuit Pattern Jury Instruction 13.3:

Proof of several separate conspiracies isn’t proof of the single,
overall conspiracy charged in the indictment unless one of the several
conspiracies proved is the single overall conspiracy.
You must decide whether the single overall conspiracy charged
existed between two or more conspirators. If not, then you find the
Defendants [sic] not guilty of that charge.
But if you decide that a single overall conspiracy did exist, then
you must decide who the conspirators were. And if you decide that a
particular Defendant was a member of some other conspiracy—not
the one charged—then you must find that Defendant not guilty.
So to find a Defendant guilty, you must all agree that the
Defendant was a member of the conspiracy charged—not a member
of some other separate conspiracy.

As to the verdict form, the district court also reviewed that form with the

jury, instructing the jury that they may need to determine what drugs were

involved in the conspiracy, and in the case of heroin, how much: “In other words,

you will need to decide if you find that this defendant is guilty of conspiring to

possess with the intent to distribute or distribute heroin weighing 100 grams or

more or weighing less than 100 grams.” The district court then stated:

The defendant is charged with possessing and intending to distribute
at least 100 grams of heroin. But you may find the defendant guilty of
the crime even if the amount of the controlled substance for which he
should be held responsible is less than 100 grams. So if you find the
defendant guilty, you must also unanimously agree on the weight of
heroin the defendant possessed and specify the amount on the verdict
form.
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With those instructions in mind, we next consider the relevant statutes.

In Count 1 of the superseding indictment, Carson was charged with

conspiring to knowingly, intentionally, and unlawfully possess with the intent to

distribute and distribute 100 grams or more of a mixture and substance containing

a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B);

a mixture and substance containing a detectable amount of cocaine hydrochloride,

in violation of § 841(a)(1) and (b)(1)(C); an amount of oxycodone (Oxycontin), in

violation of § 841(a)(1) and (b)(1)(C); and a mixture and substance containing a

detectable amount of marijuana, in violation of § 841(a)(1) and (b)(1)(D), all in

violation of 21 U.S.C. § 846.

Section 841(a)(1) provides that “it shall be unlawful for any person

knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a controlled substance.” 21

U.S.C. § 841(a)(1). Section 846 provides that “any person who attempts or

conspires to commit any offense defined in this subchapter [including § 841(a)]

shall be subject to the same penalties as those prescribed for the offense, the

commission of which was the object of the attempt or conspiracy.” 21 U.S.C.

§ 846. Together, these statutes provide that a person may violate § 846 by

conspiring to violate § 841(a)(1). For purposes of a conviction under

§ 841(a)(1) and by extension § 846, the specific amount and type of drugs involved
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do not matter, and “the government’s failure to prove the amount or type charged

in the indictment does not merit reversal.” United States v. Baker, 432 F.3d 1189,

1233 (11th Cir. 2005).

The amount and quantity of drugs only matter for purposes of § 841(b).

Section 841(b) “provides enhanced maximum sentences for persons convicted of

violating §§ 841(a) or 846, depending on the quantity and type of drug involved.”

Sanders, 668 F.3d at 1309 (citing 21 U.S.C. § 841(b)). Further, the enhanced

penalties found in § 841(b) “cannot apply unless the jury determines the drug type

and quantity involved in the overall drug conspiracy offense.” Id.; see also

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63 (2000).

We consider first Carson’s argument that the jury instructions constructively

amended the indictment by charging the conspiracy as one to possess with the

intent to distribute four controlled substances disjunctively, while the indictment

charged the conspiracy as one to possess with the intent to distribute those same

substances conjunctively.

As we noted above, neither the type of drug nor the quantity of that drug is

an element of the offense of conspiracy to violate § 841(a)(1). Count 1 of the

superseding indictment charged a generic violation of §§ 841(a)(1) and 846. “We

recognize that [the] count adds sentencing language to give Apprendi notice that

the government also charged that the overall conspiracy [involved heroin in an

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amount of 100 grams or more, cocaine hydrochloride, oxycodone, or marijuana].

This language, however, is not required for conviction under § 841(a) but is

required to set the statutory maximum sentence under § 841(b).” Sanders, 668

F.3d at 1311. Thus, the fact that the jury instructions changed the “and” to “or” in

the list of controlled substances did not change the elements of the offense and did

not constructively amend Carson’s indictment. A conspiracy to possess with the

intent to distribute any of the four controlled substances listed in the indictment

could support a conviction under §§ 841(a)(1) and 846. It is also well-settled that

the government may charge in the conjunctive and prove in the disjunctive. See

Simpson, 228 F.3d at 1300.

Because the offense for which Carson was convicted was clearly

encompassed by the indictment against the defendant, Carson is not being

punished for actions that are beyond the reach of the charging document. The jury

instructions that referred to the four drugs in the disjunctive did not constructively

amend the defendant’s indictment. See, e.g., United States v. Crawford, 449 F.3d

860, 861 (8th Cir. 2006) (“[I]t is well settled that a conspiracy to distribute more

than one controlled substance may be charged in the conjunctive . . . but submitted

to the jury . . . in the disjunctive.”); United States v. Muelbl, 739 F.2d 1175, 1178–

84 (7th Cir. 1984) (concluding that defendant’s indictment was not constructively

amended by jury instruction permitting the jury to find the defendant guilty of

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conspiring to distribute marijuana, cocaine, or methaqualone even though

indictment charged the defendant with conspiring to distribute marijuana, cocaine,

and methaqualone).

Similarly, the amount of heroin involved in the offense is not an element of

the offense; thus, that the jury instructions permitted the jury to find Carson guilty

of Count 1 even if the conspiracy involved less than 100 grams of heroin—despite

being charged with a conspiracy to distribute 100 grams or more of heroin—did

not constructively amend the indictment. Moreover, the district court reiterated

that the jury had to find the quantity of heroin involved only after determining

whether Carson had committed the charged offense beyond a reasonable doubt.

In his reply brief on appeal, Carson also argues that part of the instruction

about the verdict form was misleading, in that it does not mention conspiracy and

states the defendant “is charged with possessing and intending to distribute at

least” 100 grams of heroin. Even though “conspiracy” should have been used in

this one sentence, the district court later stated: “You don’t answer those questions

[concerning the amount of heroin] if you don’t find that the defendant conspired to

possess with the intent to distribute heroin.” Also the charge overall clearly

described Count 1 as a conspiracy charge, and the special verdict form itself states:

1. We, the Jury, find the Defendant, Corderell DeWayne Carson,
GUILTY/NOT GUILTY, as charged in Count One of the indictment.

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[Note: If you find the Defendant not guilty as charged in Count One,
you need not consider paragraph 2 below. In that case, go straight to
paragraph 3]

2. We, the Jury, having found the Defendant guilty of the offense
charged in Count One, further find with respect to this charge that he
conspired to possess with the intent to distribute or distribute the
following (place an X in the appropriate box):

Oxycodone (Oxycontin) 

Heroin
(i) Weighing 100 grams or more 
(ii) Weighing less than 100 grams 

After considering the district court’s instructions in context and in light of

the jury’s special verdict, we conclude that the jury was not misled into convicting

Carson of a crime for which he was not indicted. Because Carson could not have

been convicted of an offense for which he was not indicted, the district court’s jury

charges did not constructively amend the indictment.

VIII. CONCLUSION

Accordingly, upon review of the record and briefs and with the benefit of

oral argument, we affirm.

AFFIRMED.

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