[ DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 11

- 15716 Non

- Argument Calendar

________________________ D.C. Docket No. 1:09

- cr - 00482

- TWT

- LTW

- 5 UNITED STATES OF AMERICA , Plaintiff

- Appellee,

versus IVEY GRANT , Defendant

- Appellant.

__________________________ Appeal from the United States District Court for the Northern District of Georgia

_________________________ (June 6, 2013) Before MARCUS, JORDA N, and KRAVITCH, Circuit Judges. JORDAN, Circuit J udge : Ivey Grant appeals his convict ion f or conspiracy to possess , with intent to distribute , at least 100 kilograms of marijuana, in violation of 21 U.S.C. § § 846 , 841(a)(1) and (b)(1)(B)(vii)

. H e argues that the district court erred in denying his

Case: 11-15716 Date Filed: 06/06/2013 Page: 1 of 172 pretrial motion to suppress wiretap evidence because (1) the affidavit in support of the wiretap application contained information the government knew had been purchased by an informant from another inmate and therefore violated Franks v. Delaware , 438 U.S . 154 (1978) ; (2) the other informatio n in the affidavit was stale; and (3) the remaining portions of the affidavit did not establish probable cause that a crime had been, was being, or was about to be committed. He also contends that the jury instruction s were e rroneous because (4 ) the deliberate ignorance jury instruction should not have been given as the relevant evidence in the case pointed to actual knowledg e , rather than deliberate avoidance, of drug trafficking ; and (5 ) the pattern jury instruction on deliberate ignorance was an incorrect statement of the law in light of the Supreme Court’s recent decision in Global

- Tech Appliances,
Inc. v. SEB S.A. , 131 S. Ct. 2060 (2011). After reviewing the record and the parties’ briefs, we affirm

. I. F ACTUAL B ACKGROUND Mr. Grant owned Hi

- Tech Manufacturing Services, a truck

- welding shop in Lithonia, Georgia. Aside from performing welding services , Mr. Grant allowed others to park their trucks on his property. One such individual was Marlon Burton, who m FBI agents had been investigating for drug trafficking

. 1 In

1 Mr. Burton pled guilty to conspiracy to possess , with the intent to distribute , at least five kilograms of cocaine and at least 100 kilograms of marijuana. At the time of Mr. Grant’s trial, h e had been sentenced to imprisonment for 360 months.

Case: 11-15716 Date Filed: 06/06/2013 Page: 2 of 173 November of 2008, t he FBI sought (and obtained) a wiretap to intercept calls made on a cellular telephone used by Mr. Burton. FBI Special Agent Nikki Badolato submitted an affidavit containing information gathered over the course of the investigation, including information provided by an unidentified cooperating witness (CW

- 1), a second cooperating witness later identified as Leon Lumsden (CW

- 2), an undercover F BI agent , and recorded telephone calls. During the course of the investigation, and with the aid of information garnered from this wiretap, the
FBI gathered evidence about Mr. Grant’s role in Mr. Burton’s criminal enterprise. A. Wiretap Affidavit: Infor mation from Mr. Lumsden

T he affidavit executed by Agent Badolato included information obtained from Mr. Lumsden, who said that he had met Mr. Burton three years earlier and that he knew individuals “ who work [ ed ] for Burton’s drug

- trafficking organization. ” See Affidavit [D.E. 219

- 1 and 219

- 2] at ¶ 31. “Through these contacts,” Mr. Lumsden knew that Mr. Burton was a “ high

- level cocaine and marijuana distributor ” who received narcotics from Mexico. See i d. Agent Badolato stated that she believed Mr. Lumsd en was reliable and that she had attempted to corroborate his information where possible.
Mr. Grant filed a motion to suppress evidence garnered from the wiretap

. He argued that Agent Badolato recklessly disregarded the truth when she based her affidavit, in part, upon information obtained from Mr. Lumsden, who had

Case: 11-15716 Date Filed: 06/06/2013 Page: 3 of 174 purchased the information relating to Mr. Burton’s alleged drug trafficking from Marcus Watkins, another inmate, who in turn sold information to fellow i nmates so they could obtain U.S.S.G. § 5K1.1 reductions. 2 Mr. Grant argued that because t he affidavit improperly presented th is information as first

- hand knowledge , which amounted to “a material falsehood and a material omission . . . [and] a reckless disregard for the truth , ” he was entitled to a hearing under Franks v. Delaware , 438 U.S. 154 (1978). See Motion to Suppress [D.E. 130] at 8, 17. The government opposed the motion and argued that there was no evidence that Agent Badolato lied or recklessly disregarded the truth when she submitted her affidavit. At a Franks hearing before the magistrate judge, t he government argued that the remainder of the affidavit, aside from Mr. Lumsden’s information, established probable cause to iss ue the wiretap order

. The magistrate judge agreed and the district court adopted the magistrate’s report and recommendation

. B. Wiretap Affidavit: Information from CW
- 1
The wiretap a ffidavit also contained information from another confidential informant, CW

- 1, who told agents that Marco Duron, a Mexico

- based drug

2 During his interview with FBI agents , Mr. Lumsden said he had received the information from a girlfriend. The source of the information was actually Mr. Watkins’ cousin, Katrina McCurty , and Mr. Lumsden had pu rchased the information from her hoping to receive a sentence reduction. See Transcript of Franks Hearing [D.E. 262] at 40

- 41, 86

- 87, 104

- 05, and 109

- 10. Mr. Grant contends that Agent Badolato should have known that Mr. Lumsden was unreliable because oth er agents from the FBI and several Assistant United States Attorneys from the Northern District of Georgia knew that he had purchased information from Mr. Watkins.

Case: 11-15716 Date Filed: 06/06/2013 Page: 4 of 175 trafficker, had “fronted” Mr. Burton 100 kilograms of cocaine, which was paid back within 3 days. See Affidavit at ¶ 17. CW

- 1 had worked with Mr. Burton in the past; “CW

- 1, or his associates , regularly supplied Burton with narcotics prior to
CW

- 1 working with the FBI. ” Id. at ¶ 18. During a call with CW

- 1 in June 2008, Mr. Burton agreed to establish a new narcotics supply line in Atlanta. According
to CW

- 1, d uring a meeting on July 17, 2008 , between Mr. Burton , CW

- 1 , and an undercover FBI agent , Mr. Burton:

• drove CW

- 1 and the agent in his Mercedes sedan and showed them his residence to prove that his narcotics operation had been profitable ; • stated that he distributed cocaine and agreed to check a list of names to determine whether they were under investigation ;
• discussed his $130,000 debt that he wanted to clear up with the cartel in the hope of becoming the sole cocaine distributor in Atlanta;
• negotiated how much each kilogram o f cocaine would cost and agreed upon a price of $20,000 per kilogram;
• called individuals inquiring about secluded propert ies to be used for the narcotics operation;
• “stated that he wanted to run the drug business exclusively out of Atlanta;” and
• drove th em to two residences that he had constructed and offered them as stash houses for the narcotics operation. See id. at ¶¶ 19

- 21. Other details were discussed on subsequent calls on July 30

- 31 , August 1, September 2

- 3 , and November 5, 2008, during which Mr. Burton told the undercover agent that he was ready to begin distributing drugs. See id. at ¶¶ 23

- 29,
32

. Moreover, toll reco rds from August 17 to November 13 , 2008 , showed that

Case: 11-15716 Date Filed: 06/06/2013 Page: 5 of 176 Mr. Burton contacted known Mexican drug tr af fickers on multiple occasions. See id. at ¶¶ 33

- 37. C. Trial Testimony and Jury Instructions
At trial, two cooperating co

- defendants testified for the government: Mr. Burton and Otoniel Herrera , a truck driver who transported marijuana to Hi

- Tech

. 3 Mr. Herrera testified that he delivered three separate loads of marijuana to Atlanta, which w ere unloaded at Hi

- Tech. See Trial Transcript [D.E. 377] at 310 , 318

- 19,
322

. M r. Burton testified about Mr. Grant’s role i n the drug trafficking conspiracy

as follows

. See id. at 110

- 16; 126

- 30; 134

- 35; 145

- 46. Mr. Burton rented space at Hi

- Tech to unload large quantities of drugs from trailers coming from Mexico and to load them with drug proceeds for delivery back to Mexico. Mr. Burton paid Mr.
Grant approx imately $6,500 per load of marijuana and $13,000 per load of cocaine
that was loaded or unloaded at Hi

- Tech ; in total, he used Hi

- Tech 30 or 40 times to unload marijuana and cocaine. He notified Mr. Grant, by telephone, when trucks carrying drugs were en route to Hi

- Tech and Mr. Grant routinely went to his shop to open the gate and allow the trucks to enter his property. Mr. Burton also testified that Mr. Grant required the trucks to arrive in the dark and helped clear the way for the trucks to back up to the main building to

3 Mr. Herrera pled guilty to a narcotics charge and was sentenced to 46 months ’ imprisonme nt.

Case: 11-15716 Date Filed: 06/06/2013 Page: 6 of 177 unload. Mr. Grant was thin and able to crawl inside the truck across the legitimate load, often fruit or produce, to unload the marijuana bales. If necessary, M r. Grant would drive the forklift to remove the legitimate load and locate the marijuana. After unpacking the marijuana bales, he burned the packaging at his shop. At the government’s request, the district court gave the Eleventh Circuit pattern instructi on on deliberate ignorance. Mr. Grant objected, arguing that it was improper to give the deliberate ignorance instruction because there was no evidence of such conduct in the case. See id. at 521

- 22, 600. He did not object to the language of the deliber ate ignorance charge as an incorrect statement of the law. After the jury found him guilty , Mr. Grant moved for a new trial , re asserting his challenge to the wiretap evidence, but the district court denied his motion . The district court noted that it h ad once again reviewed the report and recommendation , the wiretap application , and the affidavit an d concluded that there was “an overabundance of probable cause ” to support the wiretap, even excising Mr. Lumsden’s information. See Transcript of Motion for New Trial and Sentencing [D.E. 380] at 2, 5

- 6. The district court ultimately sentenced Mr. Grant
to a term o f imprisonment of 108 months. See id. at 41.
II. S TANDARD S OF R EVIEW Case: 11-15716 Date Filed: 06/06/2013 Page: 7 of 178 We review the district court’ s denial of a motion t o suppress evidence under a mixed standard of review. United States v. Jiminez , 224 F.3d 1243 , 1247 (11th Cir. 2000 ). “A district court’ s denial of a motion to suppress evidence is reviewed as a mixed question of law and fact, with the rulings of law reviewed de novo and the findings of fact reviewed for clear error, in the light most favorable to the prevailing party. ” United States v. D e La Cruz Suarez , 601 F.3d 1202 , 1213 (11th Cir. 2010 )

. An application for a wiretap authorization must be supported by the same probable cause necessary for a search warrant. United States v. Nixon , 918 F.2d 895, 900 (11th Cir. 1990). The district cour t must “make a practical, common sense decision about whether the totality of the circumstances indicate that there is probable cause that the sought

- for evidence will be obtained.” Id. (internal quotation marks omitted). O ur review of the district court ’s determination is to ensure that there was a “ substantial basis ” for concluding that probable cause existed. Id.
P robable cause for a wiretap must exist at the time the surveillance is authorized

. United States v. Domme , 753 F.2d 950, 953 (11th Cir. 1985) . Warrant applications based on stale information fail to create probable cause that improper conduct is continuing. United States v. Harris , 20 F.3d 445 , 450 (11th Cir. 1994). Nevertheless, w hen criminal activity is “ prot racted and continuous, ” it is more likely that passage of time will not dissipate probable cause; it is reasonable to

Case: 11-15716 Date Filed: 06/06/2013 Page: 8 of 179 assume that the activity has continued beyond last dates mentioned and may still be continuing. Domme , 753 F.2d at 953. “ Time becomes les s significant in the wiretap context, because the evidence sought to be seized is not a tangible object easily destroyed or re moved, ” so “ th e stale information issue should be construed less rigorously.” Id. See also United States v. Hyde , 574 F.2d 856 , 865 (5th Cir. 1978) ( staleness issue must be examined more liberally when a continuing pattern of criminal activity is alleged; such a “ result is even more defensible in wiretap cases than in ordinary search warrant cases”). When reviewing stalen ess claim s we do not apply a talismanic rule which establishes arbitrary time limitations ; rather, we review each case based on the unique facts presented. Harris , 20 F.3d at 450. “[E] ven stale information is not fatal if the government affidavit updates, substan tiates, or corroborates the stale material. ” Id. ; Jiminez , 224 F.3d at 1249. “We apply a deferential stan dard of review to a trial court’ s jury instructions.” United States v. Steed , 548 F.3d 961 , 977 (11th Cir. 2008) (quoting United States v. Puche , 350 F. 3d 1137, 1148 (11th Cir. 2003)). Under this standard, we will only reverse if we are left with a substantial and eradicable doubt as to whether the jury was proper ly guided in its deliberations. Id. However, we review j ury instructions de novo to d etermine whether they misstate d the law or misled the jury to the prejudice of the objecting party. United States v. Richardson , 233 F.3d 1285, 1292 (11th Cir. 2000). The district court has broad

Case: 11-15716 Date Filed: 06/06/2013 Page: 9 of 1710 discretion in formulating a jury charge so long as the cha rge as a whole is a correct statement of the law. Id. ; United States v. Schlei , 122 F.3d 944, 969 (11th Cir. 1997). We will not reverse a conviction unless we find that issues of law were presented inaccurately or the charge improperly guided the jury in such a substantial way as to violate due process. United States v. Perez

- Tosta , 36 F.3d 1552, 1564 (11th Cir. 1994 )

. Jury instructions that are challenged for the first time on appeal are reviewed for plain error

. United States v. Starke , 62 F.3d 1374, 1380 (11th Cir. 1995). Under the “plain error” standard, a d efendant must demonstrate that (1) an error occurred, ( 2) the error was plain, and (3) the error affected substantial rights ; if these conditions are met, we may exercise our discretion to correct a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of ju dicial proceedings

. United States v. Felts , 579 F.3d 1341 , 1344 (11th Cir. 2009) ; United States v. Evans , 478 F.3d 1332 , 1338 (11th Cir. 2007)

. I I I. D ISCUSSION A. Motion to Suppress First, Mr. Grant argues that the magistrate judge should have granted his motion to suppress the wiretap evidence because the affidavit knowingly contained material misrepresentations and omissions in violation of Franks

. Second, he contend s that once the alleged falsehoods are excised, no probable cause remains

Case: 11-15716 Date Filed: 06/06/2013 Page: 10 of 1711 for the wireta p. He asserts that the information provided by CW

- 1 was stale and that the evidence provided by CW

- 1 and the undercover agent only showed that Mr. Burton was trying to get back into the cocaine trafficking business, so that his
comments amount ed only to m ere puffery. We disagree. 1. Probable Cause

We need not determine whether there was a violation under Franks because

e ven if we excis e the information obtained from Mr. Lumsden , the remaining portions of Agent Badolato’s affidavit contained sufficient information to establish probable cause. See United States v. Novaton , 271 F.3d 968, 988 (11th Cir. 2001) (“ in light of the other facts contained in the affidavits, the alleged omissions [pursuant to Franks ] were immaterial to a finding of probable cause for the wiretaps ”). The facts discussed above

— namely, the investigation by the FBI, the consensually recorded telephone calls between CW

- 1 and Mr. Burton, and the statements of CW

- 1 and the undercover agent

— provided sufficient probable cause to believe th at evidence of Mr. Burton’s drug trafficking would be intercepted. See
Nixon , 918 F.2d at 90 0 (holding that wiretap authorization and its extension were supported by probable cause where defendants agreed to sell narcotics to undercover agents, confidential informant purchased cocaine, pen register activities indicated phone calls to known drug dealers, and surveillance and investigate reports suggested narcotics

- related activity).

Case: 11-15716 Date Filed: 06/06/2013 Page: 11 of 1712 2 . Staleness of Information Supporting Probable Cause Mr. Grant asserts that CW

- 1’s information was stale because his last drug deal with Mr. Burton was in 2003 . Although information that is five years old is , without more, undoubtedly stale, 4 the affi davit here demonstrated past “protracted and continuous” drug trafficking activity as well as recent drug trafficking activity between CW

- 1 and Mr. Burton just before the application for the wiretap. See
Domme , 753 F.2d at 953. The affidavit d id not rely only on past drug deals; it related that , d uring his July 2008 meeting with CW

- 1 and the undercover agent, Mr. Burton discussed his intention of clearing his past drug debt so he could become the sole coc aine distributor in Atlanta, negotiated the price o f cocaine, made calls to acquire secluded propertie s for the narcotics operation, and showed possible stash houses to be used for t he operation. See Harris , 20 F.3d at 451 (“ Because the affidavit alleged ongoing activity and a continuing relationship between coconspirators, the information was not fatally stale. ”) ; Domme , 753 F.2d at 955 (“In light of the less rigorous treatment accorded the stale information issue . . . the facts presented were sufficient to form a reasonable belief that the activitie s were continuing, despite the gap in time”).

4 See Transcript of Franks Hearing at 51 (Agent Badolato testifies that “the last drug deals that took place between CW

- 1 and Marlon Burton were back in 2003”); id. at 52 ( Agent Badolato does not dispute that such information is five years old).

Case: 11-15716 Date Filed: 06/06/2013 Page: 12 of 1713 Moreover, toll records from August 17 to November 13, 2008 , showed that Mr. Burton contacted known Mexican drug traffickers on multiple occasions. See Affidavit at ¶¶ 33

- 37. For example, Mr. Burton had been in contact with Mr. Duron, who directs supplies of cocaine from Mexico , on 33 occasions, with the last actual contact on November 7, 2008 (a few weeks before the affidavit was signed).
See id. at ¶ 35

. These toll records, along with the meetings and recorded calls in July and October 2008 , sufficiently corroborated the possibly stale information

. See United States v. Green , 40 F.3d 1167, 1172 (11th Cir. 1994) (holding that information from confidential informant regarding the recent continued sale of cocaine served as an update of previously obtained information which was unspecific about time and was therefore not stale). See also Jiminez , 224 F.3d at 1249; Harris , 20 F.3d at 451. As the wiretap authorization was supported by probable cause and the information in the affidavit was not stale, we affirm the district court’s denial of Mr. Grant’s motion to suppress.
B. Jury Instructions 1. The Deliberate Ignorance Instruction
We have held that a deliberate ignorance instruction is appropriate “only when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid

Case: 11-15716 Date Filed: 06/06/2013 Page: 13 of 1714 learning all of the facts in order to have a defense in the event of a subsequent
prose cution.” United States v. Rivera , 944 F.2d 1563, 1571 (11th Cir. 1991) (quotation and alteration omitted). A district court should not instruct the jury on deliberate ignorance when the relevant evidence points only to actual knowledge, rather than delibe rate avoidance. Id. I mproperly i nstructing the jury on deliberate ignorance , however, is harmless error where the jury was also instructed and could have convicted on an alternative, sufficiently supported theory of actual knowledge. See United States v. Kennard , 472 F.3d 851, 858 (11th Cir. 2006); United States v. Perez

– Tosta , 36 F.3d 1552, 1564 (11th Cir. 1994); United States v.
Stone , 9 F. 3d 934, 937 , 942 (11th Cir. 1993) ; Rivera , 944 F.2d at 1572. As noted earlier, Mr. Grant argues that the deliberate ignorance instruction was improper because there was no evidence to support a theory of deliberate ignorance. The government argues that there was evidence of both actual knowledge and deliberate ignor ance of drug trafficking activity. We need not decide whether the evidence at trial supported a deliberate ignorance instruction. Even assuming there was no evidence that Mr. Grant was deliberately ignorant and for that reason the instruction should not have been given, the instruction constituted h armless error because there was sufficient evidence to prove that Mr. Grant had actual knowledge. See United States v. Steed , 548 F.3d 961, 978 (11th Cir. 2008) (declining to address whether the facts at tria l supported

Case: 11-15716 Date Filed: 06/06/2013 Page: 14 of 1715 a deliberate ignorance instruction because any shortcoming in the evidence about deliberate ignorance was rendered harmless by the sufficiency of the evidence of actual knowledge) ; Kennard , 472 F.3d at 858 (same)

. The testimon y of Messrs.
Burto n and Herrera

— discussed above

— established that Mr. Grant actually knew that the trucks were unloading marijuana at Hi

- Tech. Specifically, Mr. Burton testified that Mr. Grant often cleared the way for the trucks, participated in unloading the marijuana by c rawling inside the trucks or using a forklift to remove the legitimate load and locate the marijuana, unpackaged the marijuana bales, and burned the packaging at Hi

- Tech. Mr. Burton also testified that he paid Mr. Grant approximately $6,500 per load of ma rijuana and $13,000 per load of cocaine.
Th is evidence was sufficient for a jury to conclude that Mr. Grant had actual knowledge of the marijuana in the trucks . W e therefore conclude that any error with respect to the deliberate ignorance instruction was harmless. 2. The Wording of the Deliberate Ignorance Instruction
Finally, Mr. Grant argues that the deliberate ignorance instruction , based on the Eleventh Circuit pattern jury instructions , was erroneous because it misstated the law in light of the Supreme Court’s decision in Global

- Tech Appliances, Inc. v.
SEB S.A. , 131 S. Ct. 2060 (2011). Although Mr. Grant objected to giving any deliberate ignorance instruction at trial, he did not challenge the wording of the

Case: 11-15716 Date Filed: 06/06/2013 Page: 15 of 1716 instruction that was given. Because no objection was made at trial, we review this particular claim for plain e rror. Contrary to Mr. Grant’s contention, the Eleventh Circuit pattern jury instruction on deliberate ignorance is not inconsistent with the standard lai d out in Global

- Tech

. Compare Global

- Tech , 131 S. Ct. at 20 69

- 71 (holding that the doctrine of willful blindness, well established in criminal law and embraced by federal courts of appeals, applies to civil lawsuits for induced patent infringement) , with Eleventh Circuit Pattern Jury Instruction, Special Instruction No. 8 (2010). 5 In fact, the Supreme Court in Global

- Tech specifically cited to the Eleventh Circuit’s deliberate ignorance instruction in Perez

- Tosta as illustrative of the deliberate ignoran ce standard. See Global

- Tech , 131 S. Ct. at 207 0 n. 9. The instruction in Perez

- Tosta matched almost verbatim the instruction used in Mr.

5 Special Instruction No. 8 provides: Deliberate Ignorance as Proof of Knowledge If a Defendant’s knowledge of a fact is an essential part of a crime, it’s enough that the Defendant was aware of a high probability that the fact existed

– unless the Defenda nt actually believed the fact didn’t exist. “Deliberate avoidance of positive knowledge”

– which is the equivalent of knowledge

– occurs, for example, if a defendant possesses a package and believes it contains a controlled substance but deliberately avoid s learning that it contains the controlled substance so he or she can deny knowledge of the package’s contents. So you may find that a defendant knew about the possession of a controlled substance if you determine beyond a reasonable doubt that the defenda nt (1) actually knew about the controlled substance, or (2) had every reason to know but deliberately closed [his] [her] eyes. But I must emphasize that negligence, carelessness, or foolishness isn’t enough to prove that the Defendant knew about the posses sion of the controlled substance. The district court’s instruction matches this language verbatim. See Trial Transcript at 594.

Case: 11-15716 Date Filed: 06/06/2013 Page: 16 of 1717 Grant’s case. Compare Perez

- Tosta , 36 F.3d at 1564 n.13 , with Trial Transcript at 594. Under the se circumstances , we find no plain err or . IV. C ONCLUSION The district court properly denied Mr. Grant’s motion to suppress the wiretap evidence because Agent Badolato’s affidavit

— even without the information provided by Mr. Lumsden

— was supported by probable cause and did
not merely contain stale information. The district court did not plainly err in using the Eleventh Circuit pattern jury instruction on deliberate ignorance and any error in giving that instruction was harmless. Accordi ngly, we affirm.
A FFIRMED . Case: 11-15716 Date Filed: 06/06/2013 Page: 17 of 17