2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2012/941NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__ ___________ No. 10

- 4304

_____________ UNITED STATES OF AMERICA

v. JONATHAN COBB , a/k/a JC

JONATHAN COBB, Appellant

_____________

No. 10

- 4305

_____________ UNITED STATES OF AM ERICA

v. DAVID COBB, a/k/a Sweat

DAVID COBB, Appellant

_____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania ( No s . 2:0 9

- cr - 00733

- 001 & 2:09

- cr - 00733

- 002 ) Distric t Judge: Honorable Eduardo C. Robreno Submitted Pursuant to Third Circuit L

. A

. R

. 34.1(a) March 22, 2012

____________2 Before: RENDELL, FISHER and CHAGARES, Circuit Judges

. (Filed : May 25, 2012 )

____________ OPINION

___________ CHAGARES, Circuit Judge David Cobb and Jonathan Cobb challenge their respective convictions related to their participation in a cocaine distribution scheme , alleging that the District Court erred by admitti ng conversations captured on an illegal wiretap, failing to exclude evidence seized during the warrantless search of David Cobb’s vehicle , and allowing inappropriate expert testimony under Federal Rule of Evidence 702. David Cobb also challenges the District Court’s admission of his prior convictions, and Jonathan Cobb contends that the District Court’s upward varia nce at his sentencing renders his sentence unreasonable. We will affirm in all respects. .

I. Because we write exclusively for the parties, we provide only an abbreviated summary of the facts essential to our disposition. On November 18, 2009, a grand jury returned a two

- count indictment charging brothers David and Jonathan Cobb with conspiracy to possess with intent to distribute 500 grams or more of cocaine and possession of cocaine with intent to distribute, both in violation of 21 U.S.C. § 841(b)(1) (B)(ii). These charges arose from the Cobbs’ participation as middlemen in a3 cocaine distribution enterprise in Delaware County, Pennsylvania, which law enforcement authorities began investigating in March 2008

. As part of its investigation, authorities sought to obtain a wiretap for Jonathan Cobb’s mobile phone pursuant to 18 U.S.C. § 2518

. In support of its application for a wiretap, the Government submitted a 64

- page affidavit from FBI Special Agent Luke Church detailing the nature and scope of the i nvestigation of the Cobbs’ drug dealing
act ivities. Appendix (“ App.”) 54

- 117. 1 The necessity section of this affidavit, which
span ned eight pages, state d that “interception of wire communications over [J onathan Cobb’s mobile phone] i s the only available technique with a reasonable likelihood of identifying the full scope of this conspiracy” given the insular nature of the enterprise and the Cobb s ’ efforts to evade police surveillance. Id. at 106

- 14. In support of this assertion, Agent Church explained t hat the use of undercover agent s and additional confidential informant s was dangerous and unlikely to lead to additional relevant information, given that the Cobbs “are very cautious and normally deal only with persons who have had a close relationship wit h one or more members of the organiza tion” and none of the confidential informants were in a position to provide information about the Cobbs’ suppliers. Id. at 108

- 09

. Agent Church further averred that physical surveillance ha d been difficult because Jon athan Cobb actively sought to avoid detection, including using rental cars and monitoring the cars outside his home. Id.

1 Jonathan and David Cobb filed separate appendices containing the same relevant documents. For convenience, all citations to the “Appendix” refer to the appendix filed by Jonathan Cobb. at 1 10

- 11. Other forms of investigation were likewise problematic because they would make the Cobbs aware of the4 ongoing investigatio n and thus cause the Cobbs to “become mor e circumspect in their dealings. ” Id. Based on the information contained in Agent Church’s affidavit, o n September 29, 2009, the District Court authorized a 30

- day wiretap of Jonathan Cobb’s mobile phone. The evidence obtained through the wiretap included conversations in which Jonathan Cobb orchestrated the buying and selling of cocaine and warned his co

- conspirators about police surveillance. On October 20, 2009, agents overheard a conversation that led them to believe Jonathan and David Cobb were planning to obtain a large quantity of cocaine that evening. at 113.

Id. at 146. Based on surveillance indicating the Cobbs had me t with their supplier, police stopped each of their respective cars on an exit ramp off an interstate

. Id.
at 194

- 223

. After an officer ordered David Cobb to put his hands up, the officer observed David Cobb lean down with both hands “ down below the seat area ” of the car. Id. at 224. David Cobb eventually complied, and the same police of ficer drove David Cobb’s vehicle to a nearby parking lot. Id. at 224

- 25. While driving, the officer noticed a shopping bag under the passenger seat, which he later discovered contained a 997

- gram brick of cocaine

. Id. Both sid es filed pretrial motions. T he Government s ought to introd uce recordings obtained during the wiretap of Jonathan Cobb’s mobile phone and evidence of prio r criminal conduct pursuant to Federal Rule of Evidence 404(b) and 609. The Cobb s opposed these motions (either by arg ument or by brief) and filed a motion to su p press evidence seized from the warrantless search of David Cobb’s vehicle. On June 15, 2010, at 225.5 the District Court grante d the motion to admit wiretap evidence and partially granted the
Government ’s motion to admit evidence under Rule 404(b).
F ollowing a seven

- day trial, on June 28, 2010, a jury found Jonathan and David Cobb guilty o f both counts. 2

II. On November 3, 2010, David Cobb was sentenced to a term of 288 months of imprisonment, eight years of supervised rel ease, and a $1,500 fine. Two days later, Jonathan Cobb was sentenced to an identical period of imprisonment and supervised release, along with a $2,500 fine.

A. The Cobbs first contend that the wiretap of Jonathan Cobb’s pho ne was improper because A gent Church ’s affidavit failed to demonstrate the required necessity to secure a wiretap

. “We review de novo the question of whether a full and complete statement of necessity for a wiretap was made in the application. Once it is determined that the
stat ement was made, we will review the court’s determination of necessity for an abuse of discretion.” United States v. Phillips , 959 F.2d 1187, 1189 (3d Cir. 1992). 3 To demonstrate necessity, the Government must provide an affidavit containing “ a full and c omplete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be

2 A third co

- d efendant was found not guilty on both counts. 3 Because David Cobb did not join Jonathan Cobb’s pretrial motio n to bar wiretap evid ence, the G overnment asserts that we should apply plain error review. Gov’t Br. 36 n.4. David Cobb responds that he did join in the objection at trial. Because we hold that the District Court did not abuse its discretion in admitting the wiretap evidenc e, we need not decide whether David Cobb properly raised an obj ection to this evidence

.6 too dangerous [.]” 1 8 U.S.C. § 2518(1)(c). After evaluating this affidavit, a court may only grant an application for a wiretap if it finds that “normal investigative procedures” have failed, or such procedures are too dangerous or are unlikely to succeed. Id. § 2518(3)(c). These necessity provisions were “ designed to assure that wireta pping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn , 415 U.S. 143, 153 n .12 (1974). However,

“ c ourts have consistently held that 18 U.S.C. § 2518(3)(c) does not requ ire the government to exhaust all other investigative procedures before resorting to electronic surveillance.” United States v. Williams , 124 F.3d 411, 418 (3d Cir. 1997). Rather, the “government need only lay a ‘factual predicate’ sufficient to inform the judge why other methods of investigation are not sufficient.” Id. (quoting United States v. McGlory

Review of the affidavit submitted by Agent Church compels us to conclude that the wiretap application contained suf ficient factual information to demonstrate why other methods of investigation were inadequate. Specifically, Agent Church explained that the drug dealing conspiracy took great care to conceal its activities, especially insofar as members of the conspiracy refused to engage in transactions with unknown persons and took affirmative steps to thwart police surveillance. App. 108

- 13. Thus, we find that the District Court did not abuse its discretion by determining that the wiretap was warranted. , 968 F.2d 309, 345 (3d Cir. 1992)).

4

4 David Cobb also argues that the wiretap was improper because Agent Church’s affidavit did not establish probable cause that “particular communications concerning” a narcotics

- related offense would be captured through a wiretap, as required by 18 U.S.C. § 2518(3). There is extensive evidence in the affidavit that Jonathan Cobb used his mobile7 B. The Cobb s next argue that the District Court erred by failing to suppress evidence of the cocaine found in the automobile driven by David Cobb. “ [W] e review the denial of a suppression motion for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the court’s properly found facts.” United States v. Agnew Although the Fourth Amendment generally requires police to secure a warrant before conducting a search, the longstanding “automob ile exception” to the warrant requirement allows police to search a vehicle so long as there is “probable cause to believe [the] vehicle contains evidence of criminal activity.” , 407 F.3d 193, 196 (3d Cir. 2005).

Arizona v. Gant , 556 U.S. 332, 347 (2009). Thus, when there is probable caus e to search a vehicle, the search “is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.” United States v. Ross , 456 U.S. 798, 809 (1982). This type of automobile search may extend to “any area of the vehicle in which the evidence might be found.” Gant Accordingly , if the police had probable cause to believe drug s or other evidence of the Cobb s ’ drug dealing conspiracy was present in the vehicle, the sea rch of the vehicle cannot violate the Fourth Amendment. Probable cause is a “fluid concept” that requires a court to analyze the totality of the circumstances to determine whether “there is a fair , 556 U.S. at 347.

phone to conduct illegal drug transactions, including a statement from a con fidential witness that Jonathan Cobb used his mobile phone for this purpose. See App. 72

- 73. This argument is plainly without merit.8 probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates We have no difficultly concluding that the District Court was correct in finding that police officers had probable cause to believe that evidence of the Cobbs’ drug dealing operat ion was present in the vehicle. By this point, federal and state investigators had collected ample evidence that the Cobbs bought and sold illegal narcotics. The wiretapped conversation between Jonathan Cobb and his supplier led investigators to believe that the Cobbs intended to meet with the supplier to obtain a large amount of cocaine. Law enforcement officers then arranged surveillance, through which they observed the Cobbs meet with the supplier and then drive away. Although the surveillance team b riefly lost track of the Cobbs’ vehicles during this transaction, they were able to locate them by tracing their cell phones shortly after they believed the transaction occurred. The totality of the evidence here compels us to uphold the District
Court’s find ing that there was probable cause to search David Cobb’s vehicle, and thus the District Court did not err by refusing to suppress the evidence found pursuant to that search. , 462 U.S. 213, 2 3 8 (1983).

C. Jonathan Cobb next argues that the District Court erred in allowing Police Officer David Tyler to testify as an expert in the field of coded drug language. We review the9 admission of expert testimony for abuse of discretion. United States v. Gibbs , 190 F.3d 188, 211 (3d Cir. 1999). 5
District c ourts have broad discretion to de termine whether to admit expert testimony so long as such testimony “is helpful to the trier of fact.” Id. More relevant to the specific circumstances here, “ i t is well established that experienced government agents may testify to the meaning of coded dr ug language under Federal Rule of Evidence 702

. ” Id. We have explained that “[b]ecause the primary purpose of coded drug language is to conceal the meaning of the conversation from outsiders through deliberate obscurity, drug traffickers’ jargon is a spe cialized body of knowledge and thus an appropriate subject for expert testimony.” Officer Tyler testified that he had been an officer in the Chester County Police Department for twenty

- one years, sixteen of which were spent in the narcotics unit. Ap p. 320. During his career, Officer Tyler participated in more than 1,000 drug investigations and received specialized training on the coded language used by drug dealers. Id.

Id.

5 Although the Government suggests that we should review this claim for plain error because the Cobbs did not properly o bject at trial, the record reveals that counsel for both David and Jonathan Cobb objected to Officer Tyler testifying as an expert witness. App. 311. at 299, 314. Given his lengthy experience with confidential informants and nar cotics dealers, Office r Tyler was well

- qualified to opine on the meaning of the language used by these defendants. Moreover, while Jonathan Cobb argues that Officer Tyler’s testimony was unhelpful to the jury because he “simply narrate[d] what is being sa id among the conversant on the intercepted calls , ” J. Cobb Br. 29, the copious use of slang and jargon10 by the Cobbs during the wiretapped conversations made Officer Tyler’s testimony useful because it enabled the jury to understand what the conversations w ere about. We also see no error in the District Court’s decision to allow Officer Tyler to serve as both an expert witness and a fact witness, given that his testimony as a fact witness was limited to identifying the voices heard durin g the wiretapped con versations. The District Court therefore did not abuse its discretion by admitting Officer Tyler’s testimony.
D. David Cobb also argues that the District Court erred by allowing the Government to introduce his prior drug convictions under Federal Rule of Evidence 404(b). Our review is plenary when a district court’s ruling “requires us to interpret the rules of evidence.” United States v. Daraio , 445 F.3d 253, 259 (3d Cir. 2006). However, w e review a district court’s decision to admit evidence of prio r bad acts under Rule 404(b) for an abuse of discretion so long as “the evidence could have been admissible in some circumstances

. ” Federal Rule of Evidence 404(b) prohibits the introduction of “[e]vidence of other crimes, wrongs, or acts” for the pu rpose of “prov[ing] the character of a person in order to show action in conformity therewith.” Such evidence may be admitted, however, “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence o f mistake or accident,” so long as “the prosecution in a criminal case [provides] reasonable notice in advance of trial . . . of the general nature of any such evidence it intends to introduce at trial.” Id.

Id. Thus, we have held that evidence of other act s may be admitted under Rule 404(b) when it (1) has a proper evidentiary11 purpose, (2) is relevant under Rule 402, (3) is not substantially more prejudicial than probative as required by Rule 403, and (4) is accompanied by a limiting instruction, when such an instruction is requested. United States v. Cross

Under these circumstances, the District Court did not abuse its discretion in determining that the admission of David Cobb’s two former convictions for possession with intent to deliver cocaine satisfied Rule 404(b). This evidence was relevant for the purpose of showing David Cobb’s knowledge and intent with regard to the brick of cocaine discovered in the car he was driving. As we have held in nearly identical circums tances, the District Court did not abuse its discretion by finding that the evidence was not substantially more prejudicial than probative, particularly given that the District Court provided an appropriate limiting instruction. , 308 F.3d 308, 321 (3d Cir. 2002).

See United States v. Givan

David Cobb argues that, unlike the defendant in , 320 F.3d 452, 461

- 62 (3d Cir. 2003) (holding that a defendant’s prior drug conviction was properly admitted under Rule 404(b) because it was relevant to showing the defendant’s intent with regard to the drugs found in his car and the court had issued a p roper limiting instruction ). Thus, the Rule 404(b) elements are satisfied. United States v. Givan , he did not put his knowledge at issue because he did not testify in his own defense to deny knowing the drug s were in his car. This contention is unavailing because we have held that “[t]he parameters of Rule 404(b) are not set by the defense’s theory of the case; they are set by the material issues and facts the government must prove to obtain a conviction. ” United States v. Sampson , 980 F.2d 883, 888 (3d Cir. 1992). Because intent was a necessary12 element of the charges for which David Cobb was on trial, the District Court did not abuse its discretion by admitting this evidence.
E. Finally, Jonathan Cobb argu es that the District Court erred by granting the Government’s motion for an upward variance to give him a sentence significantly higher than the range recommended by the United States Sentencing Guidelines

. Review of a sentence imposed by a district court requires us to consider first whether the district court committed any procedural error. United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc) . If no such error occurred, we must then consider the s entence’s substantive reasonableness based on the totality of the circumstances. Id. “At both stages of our review, the p a rty challenging the sentence has the burden of demonstrating unreasonableness.” Jonathan Cobb alleges no procedural error, but instead argues that his sentence of
288 mo nths of imprisonment, well above the recommended G uidelines range of 130

- 162 months, was unreasonable in light of the fact ors already encompassed in the G uidelines calculation and his “relatively modest criminal record.” J. Cobb Br. 32. Given the extensi ve criminal background described in Jonathan Cobb’s Pre

- Sentence Investigation Report, which included crimes involving guns and violence, and given the evidence showing Jonathan Cobb was the leader of the conspiracy in this case, he has not satisfied his b urden of proving that his sentence is substantively unreasonable. Id.

III. For the foregoing reasons, w e will affirm the judgments of the District Court.