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

Thorton were convicted of conspiracy to possess with intent to distribute and

conspiracy to distribute cocaine base in violation of 21 U.S.C. § 841 (a)(1) & 846 in

the United States District Court for the District of Nebraska. They appeal their

convictions, contending that the district court erred in denying their motion to

suppress evidence and in denying their motion for a Franks hearing. Leon Milton and

Jeffrey Mitchell also appeal their sentences. 

I. Background

On December 22, 1995, federal agent William Nellis submitted an affidavit to

the district court applying for an order authorizing the interception of wire

communications over a telephone number that the FBI suspected was being used to

conduct drug transactions in Omaha, Nebraska. The application for a wiretap was

part of an investigation into the activities of suspected drug dealers in the Omaha

vicinity. The investigation was initiated after the agents received tips from a paid

informant claiming to have knowledge of illegal drug activity.

The order authorizing a thirty day interception was granted and the wiretapping

began 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 indictment

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 the informant

upon whom the affidavit relied and to suppress the evidence derived from the

interception of the wire communications. The defendants asserted that the Nellis

affidavit 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 wiretapping
3

by federal officials in some circumstances. The defendants also attacked the veracity

of the Nellis affidavit and requested a Franks hearing to determine whether federal

agents had recklessly disregarded the truth in preparing the affidavit. The district

court denied all of these motions. 

The defendants then entered conditional pleas of guilty and were sentenced:

Milton to 360 months, Mitchell to 292 months, Thorton to 136 months and Gajewski

to 120 months. This appeal followed.

II. Discussion

All defendants contest the Nellis affidavit and order allowing the wiretap and

some contest aspects of their sentences. 

A. Probable Cause

The probable cause required for allowing electronic interception of wire

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.2d 1347, 1354 (8th Cir. 1988). Our duty as the reviewing court is only to

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 judge 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 intercepted, and (3) that the residence was being used in connection with that

offense or was commonly used by those whose communications were to be

intercepted. See Leisure, 844 F.2d at 1354 (citing Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510- 2520.). In determining

probable cause we are bound to consider only the facts contained within the four
Determining 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 Nellis affidavit was primarily based on the statements of a confidential

informant, referred to by the affidavit as Source One. The affidavit explained that

Source One had cooperated with federal agents on previous occasions and that the

information provided by Source One had led to numerous arrest and convictions.

Source One described many instances of drug activity at the house where the wiretap

was to be administered. Source One named individuals involved and described

conversations that she was a party to or overheard which detailed drug transactions

and shipments. Some of the conversations described concerning drug shipments and

transactions occurred over the phone line that was to be tapped. The affidavit stated

that Source One had personally observed one of the suspects with cocaine and that she

had seen two females pick up an amount of cocaine or crack from the residence where

the wiretap was to be installed.

The affidavit contained information from three other sources as well. These

other sources provided information regarding members of the conspiracy and

indicating that these members were involved in the illegal drug trade. Agent Nellis

also included in the affidavit the phone numbers and pager numbers of several

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 cause
5

to believe that the individuals in question were committing crimes, that the residence

to 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 district

court’s order denying the defendant’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 granting the application for interception failed to meet the requirements for

wiretaps set out in 18 U.S.C. § 2518(3). This statute allows a judge to enter an order

allowing a wiretap where the following conditions are met: 

 (a) there is probable cause for belief that an individual is

committing, has committed, or is about to commit a

particular offense enumerated in section 2516 of this

chapter;

 (b) there is probable cause for belief that particular

communications concerning that offense will be obtained

through such interception;

 (c) normal investigative procedures have been tried and

have failed or reasonably appear to be unlikely to succeed

if tried or to be too dangerous;

 (d) . . . there 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 deficient

because it did not sufficiently describe the traditional investigative procedures

previously tried and why these procedures failed, making the wiretap necessary.
6

The affidavit describes traditional investigative techniques and explains why

these techniques do not normally prove successful when targeting drug conspiracies.

Most of the assertions would be true in any drug investigation. The reasons given

include witnesses’ fear in answering questions and propensity of individuals to plead

the Fifth; the fact that normal surveillance only exposes meetings between individuals,

leaving agents to guess at the purpose of the meetings; the residential nature of the

neighborhood precludes agents from remaining near the suspicious residence; and that

phone records only reveal that conversations between individuals took place but do

not reveal the nature of the conversations. The only reason given that was specific to

this particular investigation was that the suspects kept the trash container for the

residence on the front porch, making it impossible for agents to search the garbage.

Although some of these assertions might appear boilerplate, the fact that drug

investigations suffer from common investigatory problems does not make these

problems less vexing. Drug crime is necessarily harder to detect than other crimes

because it is difficult to witness and does not create victims who are compelled to

come forward and report the crime. Furthermore, agents preparing the affidavits

supporting applications for electronic surveillance are not required to exhaust "all

possible investigative techniques" before a court can issue an order authorizing

interception of wire communications. U.S. v. Falls, 34 F.3d 674, 682 (8th Cir. 1994).

The necessity prong of § 2518(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 wiretap evidence based on a lack

of necessity.

C. Veracity of the Affidavit

Although we find that the affidavit supporting the wiretap order is facially

sufficient, a defendant may challenge an affidavit on the ground that the police
7

included deliberate or reckless falsehoods under Franks v. Delaware, 438 U.S. 154,

155-56 (1978), or deliberately 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 warrant affidavit under Franks, a defendant must show: (1) that a false statement

knowingly and intentionally, 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 cause.” 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 or

reckless statement or omission and must also show that the alleged false statement or

omission 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 case the defendants presented evidence that the affidavit included

statements made by Source One that the affiant either knew or should have known

were false. Specifically the defendants allege that Source One in a subsequent

interview declared 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 least two paragraphs of the affidavit include statements that Source One had

personally seen a defendant use crack cocaine and that she had seen two young

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 their

inclusion probable cause did not exist. The defendants alternatively contend that even

if Source One did, at one time, indicate to the agents that she had personally

witnessed drug activity, the agents ignored her inconsistent statement that she did not

witness any drug activity, thereby omitting concerns about her veracity and
The 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 drug

activity, the defendants met the first burden required in the preliminary showing

necessary to obtain a Franks hearing, that a false statement knowingly and

intentionally, 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, the district court did not err in refusing to grant the Franks hearing. Even

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

probable cause to support a wiretap order. The affidavit contained numerous

paragraphs depicting conversations that Source One heard describing drug activity and

transactions, including conversations that took place over the phone line in question.

Additionally Source One described the logistics of the drug operation, detailing the

structure of the conspiracy and explaining how drugs were transported from California

to Nebraska. 

The affidavit also included the statements of Terry Ford, Joyce French, and

another confidential informant known as Source Two. These sources provided

additional information about the drug conspiracy including how the drugs were
9

transported to Omaha, where they were stored in Omaha, and specific information

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 the

residence and pen register information, a judge could have found that the affidavit

provided probable cause to believe that a crime was being committed, the residence

in question was being used to facilitate the crime and that interception of wire

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 the

conspiracy as an organizer or leader under U.S.S.G. § 3B1.1(a). The probation officer

who prepared Milton’s presentence report recommended a role enhancement, but both

Milton and the government objected to this finding because the government had

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 the

probation officer, 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 the

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 such

evidence. However, the district court found, after independently considering the

evidence presented at the sentencing hearing, that Milton was indeed an organizer or
Milton’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

sufficient evidence exists to support an enhancement when that enhancement is

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 defendant’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

defendant notice of enhancement where the presentence report identified the

enhancement as applicable and calculated a guideline sentencing range using that

section). In this case the district court made the proper findings of fact required by the

guidelines 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 are

supported by the evidence, we find no error in the court’s decision to enhance

Milton’s sentence for his role as a leader.

Milton also contests other aspects of his sentence including his classification

as a career offender and the drug amount attributed to him. Neither of these

contentions has merit. The district court made specific findings of fact regarding

Milton’s career offender status and the amount of drugs it attributed to him. It found

that Milton had the requisite two separate felony convictions to make him a career

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 sentenced. Because neither of these findings was clearly erroneous, we affirm

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

Jeffrey Mitchell challenges several aspects of his sentence but because we

vacate 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 offense level at a 38. After

examining the record, we agree. In determining Mitchell’s base offense level, the

court attributed to Mitchell one kilogram of crack cocaine from a transaction that

supposedly took place in January of 1996. According to the district court Leon Milton

gave this kilogram to Kevin Jameson in the presence of Jeffrey Mitchell. However,

in its case against Derek Vernon, one of Mitchell’s co-conspirators, the government

offered a written stipulation of fact stating that Leon Milton was absent from the state

of Nebraska at all times during the month of January 1996. According to this

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

of 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 rely upon an estimate of drug quantity that has

sufficient 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 case the district court’s determination of drug amount was clearly

erroneous because it contradicted facts 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. Because one of those

instances is not supported by the evidence and contradicts 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

where 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 evidence

relied upon to establish amount was unreliable).

III. Conclusion

We affirm the judgment of conviction for all appellants and affirm Leon

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.