The HONORABLE JOHN C. GODBOLD, United States Senior Circuit 1 Judge for the Eleventh Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

_______________ No. 98-1168, 1169, 1170, 1214

_______________ United States, *
* Plaintiff-Appellee, * * Appeals from the United States
v. * District Court for the District * Of Nebraska Leon Delmar Milton, etc., * Ludia Gajewski, etc., * Jeffrey Sean Mitchell, etc., and * Ernest Thornton, etc. *
* Defendants-Appellants. *

____________ Submitted: June 8, 1998 Filed: August 24, 1998

____________
Before LOKEN, Circuit Judge, GODBOLD, and HEANEY, Senior Circuit 1 Judges.

____________

GODBOLD, Senior Circuit Judge:2

Defendants Leon Delmar Milton, Lydia Gajewski, Jeffrey Mitchell, and Ernest Thor ton were convicted of conspiracy to possess with intent to distribute an d conspiracy to distribute cocain e base in violation of 21 U.S.C. § 841 (a)(1) & 846 in the Un ited States District Court for the District of Nebraska. They appeal thei r convictio ns, contending that the district court erred in denying their motion t o suppress evidence and in denying their motion for a Franks he aring. Leon Milton and Jeffrey Mitchell also appeal their sentences.

I. Background

On December 22, 1995, federal a gent William Nellis submitted an affidavit to the district court applying for an order authorizing the interception of wir e
comm unications over a telephone number that the FBI suspected was being used to conduct drug transactions in Omaha, Nebraska. The application for a wiretap wa s part of an investigation into the activities of suspected drug dealers in the Omah a vicinity. T he investigation was initiated after the agents received tips from a pai d informant claiming to have knowledge of illegal drug activity.

The order authorizing a thirty day interception was granted and the wiretapping be gan on December 26. A thirty day extension was granted on January 26, 1996. Federal agents intercepted numerous phone calls from the wiretapped residence

. Presented with these calls as evidence, a federal grand jury returned an indictmen t against the

four defendants in this case, as well as several other individuals who are not parties to this appeal.
The defendants moved the district court to disclose the identity of th e informant upon whom the affidavit relied and to suppress the evidence derived from th e int erception of the wire communications. The defendants asserted that the Nelli s affida vit did not support a finding of probable cause and did not make a showing of necessity as required by 18 U.S.C. § 2518(3)(a)-(d), which authorizes wiretapping3

by federal officials in some circumstances. The de fendants also attacked the veracity of the Nellis affidavit and requested a Franks hearing to determine whether federa l agen ts had recklessly disregarded the truth in preparing the affidavit. The distric t court denied all of these motions.

The d efendants then entered conditional pleas of guilty and were sentenced : Milton to 360 months, Mitchell to 292 month s, Thorton to 136 months and Gajewski to 120 months. This appeal followed.

II. Discussion

All defendan ts contest the Nellis affidavit and order allowing the wiretap and some contest aspects of their sentences.

A. Probable Cause

The p robable cause required for allowing electronic interception of wir e communications is the

same as that required by the Fourth Amendment for a search warrant. See U.S. v. Macklin , 902 F.2d 1320, 1324 (8th Cir. 1990); U.S. v. Leisure , 844 F.2 d 1347, 1354 (8th Cir. 1988). Our duty as the reviewing court is only t o ascertain that the district judge issuing the order had a "substantial basis for ..

. conclud[ing]" that probable cause existed. Illinois v. Gates , 462 U.S. 213, 238-39, (1983). To that end we must determine that the affidavit included facts that would allow the issuing j udge to believe (1) that an individual had committed or was about to commit a particular offense, (2) that communication relating to that offense would be intercep ted, and (3) that the residence was being used in connection with tha t of fense or was commonly used by those whose communications were to b e interc epted. See Leisure , 844 F.2d at 1354 (citing Title III of the Omnibus Crim e Contr ol and Safe Streets Act of 1968, 18 U.S.C. §§ 2510- 2520.). In determinin g probable cause we are bound to consider only the facts contained within the fourDetermining probable cause requires us to put ourselves in the place of the 2 district court and decide whether that court had sufficient information before it to find probable cause. Because we review probable cause only on the basis of facts contained within the affidavit, as does the district court, as part of the instant inquiry we do not address the appellants’ assertions that the affidavit contained false statements. Questions of veracity must be considered only within the purview of a Franks v. Delaware hearing.

4 corners of the affidavit. U.S. v. Gladney , 48 F.3d 309, 312 (8th Cir. 1995). 2

The N ellis affidavit was primarily based on the statements of a confidentia l inf ormant, referred to by the affidavit as Source One. The affidavit explained tha t Sour ce One had cooperated with federal agents on previous occasions and that th e information provided by Source One had led to numerous arrest and convictions

. Source One described many instances of drug ac tivity at the house where the wiretap

was to be administered. Source One named individuals involved and describe d conversations that she was a party to or overheard which detailed drug transactions and shipments. Some o f the conversations described concerning drug shipments and transactions occur

red over the phone line that was to be tapped. The affidavit stated that Source One had personally observed one of the suspects with cocain e and that she had seen two females pick up an amount of cocaine or crack fro m the residence where the wiretap was to be installed.

The a ffidavit contained information from three other sources as well. Thes e other sources provided information regarding members of the conspiracy an d indic ating that these members were involved in the illegal drug trade. Agent Nelli s also includ ed in the affidavit the phone numbers and pager numbers of severa l members of the

alleged conspiracy. He reported pen registers that showed that calls were made from the residence to be tapped to each of the members of the conspiracy.

This evidence was sufficient for the issuing district judge to find probable cause5

to believe that the

individuals in question were committing crimes, that the residence t o be tapped was being used to commit the crimes and that communications relating to the offenses would be intercepted by the wiretap. We find no error in the distric t court’s order denying the defenda nt’s motion for suppression of the wiretap evidence based on a lack of probable cause.

B. Necessity
The defendants also sought to suppress the wiretap evidence on the ground that the order gran ting the application for interception failed to meet the requirements for wiretaps set out in 18 U.S.C. § 2518(3). This statute allows a jud ge to enter an order allowing a wiretap where the following conditions are met:

(a) the re is probable cause for belief that an individual i s comm itting, has committed, or is about to commit a particular offense enumerated in section 2516 of thi s chapter; ( b) there is probable cause for belief that particula r co mmunications concerning that offense will be obtaine d through such interception; (c) normal investigative procedures have been tried an d have failed or reasonably appear to be unlikely to succee d if tried or to be too dangerous; (d) . . . ther e is probable cause for belief that the facilities from which, or the place

where, the wire, oral, or electronic communications are to be

intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

18 U.S.C. § 2518(3)(a)-(d). Defendants contend that the affidavit was deficien t because it did not sufficiently describe the traditional investigative procedure s previously tried and why these procedures failed, making the wiretap necessary.6

The a ffidavit describes traditional investigative techniques and explains wh y these techniques do not normally prove successful when targeting drug conspiracies. Most of the assertions would be true in any drug investigation. The reasons give n include witnesses’ fear

in answering questions and propensity of individuals to plead the Fifth; the fact that normal surveillance only expose s meetings between individuals, le aving agents to guess at the purpose of the meetings; the residential nature of th e neighborhood precludes agents from remaining near the s uspicious residence; and that phone records only reveal that conversations between individuals took place but do not reveal the nature of the convers ations. The only reason given that was specific to this part icular investigation was that the suspects kept the trash container for th e residence on the front porch, making it impossible for agents to search the garbage.

Althou gh some of these assertions might appear boilerplate, the fact that drug inves tigations suffer from common investigatory problems does not make thes e problems less vexing. Drug crime is necessarily harder to detect than other crime s bec ause it is difficult to witness and does not create victims who are compelled t o
come f orward and report the crime. Furthermore, agents preparing the affidavit s suppo rting applications for electronic surveillance are not required to exhaust "al l possible investigative techniques" before a court can issue an order authorizin g interception of wire communicati ons. U.S. v. Falls , 34 F.3d 674, 682 (8th Cir. 1994). The necessity prong of § 251 8(3)(c) is a finding of fact subject to a clearly erroneous standard of review. See U.S. v. Davis , 882 F.2d 1334, 1343 (8th Cir. 1989). We find no error in the district court’s refusal to suppress the w iretap evidence based on a lack of necessity.
C. Veracity of the Affidavit

Although we find that the affidavit supporting the wiretap order is faciall y sufficient, a defendant may challenge an affidavit on the ground that the police7

included deliberate or reckless falsehoods under Franks v. Delaware , 438 U.S. 154, 155-56 (1978), or delibera

tely or recklessly omitted material information under U. S.

v. Reivich , 793 F.2d 957, 960 (8th Cir. 1986). “In order to prevail on a challenge to

a warr ant affidavit under Franks , a defendant must show: (1) that a false statemen t knowingly and i ntentionally, or with reckless disregard for the truth, was included in the affidavit, and (2) that the affidavit's remaining content is insufficient to establish probable c ause.” Gladney , 48 F.3d at 313. In order to be entitled to a hearing under Franks the defendant must make a "substantial preliminary showing" of a false o r reckless statement or omission a nd must also show that the alleged false statement or omi ssion was necessary to the probable cause determination. U. S. v. Fairchild , 122 F.3d 605, 610 (8th Cir. 1997), cert. denied , Leisinger v. U.S. , 118 S. Ct. 1086 (1998). The "substantial preliminary showing" requirement needed to obtain a Franks hearing is not lightly met. U.S. v. Hiveley , 61 F.3d 1358, 1360 (8th Cir. 1995).

In this c ase the defendants presented evidence that the affidavit include d stat ements made by Source One that the affiant either knew or should have know n
were false . Specifically the defendants allege that Source One in a subsequen t interview declare d that she had never personally seen any drugs at the residence that

was to be tapped and that she never told agents that she had personally seen drugs. At le ast two paragraphs of the affidavit include statements that Source One ha d personall y seen a defendant use crack cocaine and that she had seen two youn g women actually picking up cocaine from the residence that was to be wiretapped. The defendants assert that these false statements are material and that without thei r inclusion probable cause did not exist. The defendants a lternatively contend that even if Sourc e One did, at one time, indicate to the agents that she had personall y witnessed drug activity, the agents ignored her inconsistent statement that she did not witness any drug activity, thereby omitting concerns about her veracity andThe defendants also challenge several other omissions and allegedly false 3 statements in the affidavit including that the affidavit did not report that Source One was a paid informant who avoided prosecution by virtue of her testimony, that Source One heard that Milton was supposed to be in the real estate business, and that the phone line to be tapped had been disconnected for a time thereby preventing its use to facilitate drug deals. Even considered cumulatively with the statements concerning whether Source One actually saw drugs, we find no error in the district court’s decision to deny the motion for a Franks hearing because these statements and omissions do not rob the affidavit of its ability to provide probable cause.

8 reliability. 3

By presenting evidence that Source One did not actually witness any dru g activ ity, the defendants met the first burden required in the preliminary showin g
necessar y to obtain a Franks hearing, that a false statement knowingly an d intention ally, or with reckless disregard for the truth, was included in the affidavit

. However, because the affidavit's remaining content is sufficient to establish probable
cause, t he district court did not err in refusing to grant the Franks hearing. Eve n omitting the two paragraphs that describe Source One ’s personal observation of drugs and adding statements that she was a paid informant who escaped prosecution as a result of her information, the affidavit contained ample information for the court to find probabl e cause to support a wiretap order. The affidavit contained numerou s paragraphs depicting conversations that Source One heard describing drug activity and transactions, including conversations that took place over the phone line in question. Additi onally Source One described the logistics of the drug operation, detailing th e structure of the conspiracy and explaining how drugs were trans ported from California to Nebraska.

The affidavit also included the statements of Terry Ford, Joyce French, an d another confidential informant known as Source Two. These sources provide d additional information about the drug conspiracy including how the drugs were9

transported to Omaha, where they were stored in Omaha, and specific informatio n about the activities of individual members of the conspiracy. When this information is combined with that provided by Source One and the agents’ surveillance of th e residen ce and pen register information, a judge could have found that the affidavi t p r ovided probable cause to believe that a crime was being committed, the residence in quest ion was being used to facilitate the crime and that interception of wir e communications from this residence would provide evidence of the crime. We find

no abuse of discretion in the district court’s ruling that the defendants had not made the substantial preliminary showing required for a Franks hearing.

D. Sentencing Issues

I. Milton

Milton was sentenced to 360 months imprisonment. He contends that the court erroneously enhanced his sentence calculation by four points for his role in th e conspiracy as an organizer or leader under U.S.S.G. § 3B1.1(a). The p robation officer who prepared Milton’s presentence report recommended a role enh ancement, but both Mi lton and the government objected to this finding because the government ha d agreed, as part of Milton’s plea agreement, that it would not seek a role enhancement. The district court overruled the objections of both parties and agreed with th e probation o fficer, finding the evidence of Milton’s role as a leader to be sufficient to apply the 3B1.1 enhancement.

Milton asserts that the court’s action was an abuse of discretion because th e government bears the burden of proof on role enhancements. Objections to a finding contained in a presentence report require the government to present further evidence

as to why the finding is warranted. In this case the government presented no suc h evid ence. However, the district court found, after independently considering th e evidence presented at the sentencing hearing, that Milton was indeed an organizer orMilton’s contention that his two prior felony convictions were not separate 4 has no merit despite the fact that the two offenses, which were committed more than a year apart, were joined in 1990 for the purpose of a probation revocation proceeding. The district court properly considered these two offenses as separate under U.S. v. Jones , 87 F.3d 247, 248 (8th Cir.)(rejecting a similar argument), cert. denied , 117 S. Ct. 374 (1996).

10 leader of the conspiracy and that the conspiracy consisted of at least five people

. Nothing in the guidelines prevents a court from using its discretion to determine that suffici ent evidence exists to support an enhancement when that enhancement i s recommended in a presentence report. Cf. U.S. v. Adipietro , 983 F.2d 1468, 1473 (8th Cir. 1993) (presentence report provided adequate notice that the court might sua sponte enhance the sentence for the defend ant’s role as a supervisor); U.S. v. Adams , 938 F.2d 96, 99 (8th Cir. 1991) (holding that the government is not required to give defenda nt notice of enhancement where the presentence report identified th e enhancement as applicable and calculated a guideline sentencing range using tha t section). In this case the district court made the proper finding s of fact required by the g u idelines to enhance Milton’s sentence for his role as a supervisor. See U.S.S.G. § 3B1.1(a) & comment. Because these findings are not clearly erroneous and ar e sup ported by the evidence, we find no error in the court’s decision to enhanc e Milton’s sentence for his role as a leader.

Milt on also contests other aspects of his sentence including his classificatio n
as a car eer offender and the drug amount attributed to him. Neither of thes e contentio ns has merit. The district court made specific findings of fact regardin g Milton’s career offende r status and the amount of drugs it attributed to him. It found that Mi lton had the requisite two separate felony convictions to make him a caree r offender. The district court also found that sufficient evidence existed to attribute a

4 substantially larger amount of drugs to Milton than the two kilograms upon which he

was s entenced. Because neither of these findings was clearly erroneous, we affir m Milton’s sentence.Vernon was a co-defendant of the appellants who was indicted at the same 5 time and whose case was joined with theirs. The written stipulation of fact in question was submitted in Vernon’s case after Mitchell filed his notice of appeal. Mitchell moved this court to supplement the record on appeal with this stipulation document. The motion was carried with the case. The government concedes in its brief that the stipulation contradicts the district court’s finding of fact and that the drug transaction attributed to Mitchell in January 1996 could not have happened.Therefore, we grant Mitchell’s motion to supplement the record with the Vernongovernment stipulation.

11 (ii) Mitchell

Jeffre y Mitchell challenges several aspects of his sentence but because w e
vaca te his sentence as erroneously based on an improper amount of drugs we reach only that issue.

Mitchell asserts that the sentencing court erred by attributing more than 1. 5 kilograms of crack cocaine to him and calculating his base o ffense level at a 38. After examining the record, we agree. In determining Mitchell’s base offense level, th e
co urt attributed to Mitchell one kilogram of crack cocaine from a transaction tha t supposedly took place in January of 1996. According to the district c ourt Leon Milton gave this kilogram to Kevin Jameson in the presence of Jeffrey Mitchell. However, in i ts case against Derek Vernon, one of Mitchell’s co-conspirators, the government offered a written stipulation of fact stati ng that Leon Milton was absent from the state of Nebraska at all times during the month of January 1996. According to thi s 5 stipulated fact , the transaction involving one kilogram of crack attributed to Mitchell could not have taken place.

"Where there is no drug seizure or the amount seized does not reflect the scale

o f the offense, the court shall approximate the quantity of the controlled substance." U.S. v. Brown , 19 F.3d 1246, 1248 (8th Cir. 1994)(citing U.S.S.G. § 2D1.1,12

comment. (n. 12);. Although the government bears the burden of establishing quantity, in approximating amount the court can rel y upon an estimate of drug quantity that has

su fficient accuracy. See U.S. v. Logan , 54 F.3d 452, 455 (8th Cir. 1995); U.S. v

. Wayne , 903 F.2d 1188, 1197 (8th Cir. 1990). We review the district court' s determination of a drug quantity for sentencing purposes for clear error. U.S. v. Ayers , 138 F.3d 360, 363 (8th Cir. 1998)(citing 18 U.S.C. § 3742(e)).

In this ca se the district court’s determination of drug amount was clearl y erroneous because it contradicted fa cts that were stipulated to by the government and

a party. The district court specifically stated that it found only two instances where an amount of crack cocaine present was attributable to Mitchell. Becaus e one of those instances is not supported by the evidence and con tradicts the factual record, we must vacate Mitchell’s sentence and remand this case for a new sentencing hearing. See U.S. v. Magee , 19 F.3d 417, 423 (8th Cir. 1994)(vacating and remanding sentence whe re it could find no adequate basis for amount attributed to defendant); U.S. v

. Simmons , 964 F.2d 763, 776-77 (8th Cir. 1992)(vacating sentence where evidenc e relied upon to establish amount was unreliable).

III. Conclusion

We aff irm the judgment of conviction for all appellants and affirm Leo n Milton’s sentence. We vacate Jeffrey Mitchell’s sentence and remand his case to the district court for resentencing.

A true copy

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.