No. 95-3069

United States of America, * * Appellee, * * v. * * Kenneth Michael Shaw, * * Appellant. *

No. 95-3094

United States of America, * * Appeals from the United States Appellee, * District Court for the * District of Minnesota. v. * * Jeffrey Lane Barnes, * * Appellant. *

No. 95-3096

United States of America, * * Appellee, * * v. * * Tina Mariam Scott, * * Appellant. *

### The Honorable Andrew W. Bogue, United States District Judge 1 

### for the District of South Dakota, sitting by designation.
2 No. 95-3177

United States of America, * * Appellee, * * v. * * Alphonso Ray Tucker, also * known as Chopper, * * Appellant. *

No. 95-4164

United States of America, * * Appellee, * * v. * * Robert Lee Slater, Jr., also * known as Rob, * * Appellant. *

Submitted: June 11, 1996 Filed: August 23, 1996
Before BEAM and HEANEY, Circuit Judges, and BOGUE, District Judge. 1

HEANEY, Circuit Judge.

### The grand jury returned the original indictment o n 2 

### September 21, 1994. The government filed a revised indictment on November 23, 1994. Six other individuals, not parties to thi s appeal, were also named in the indictment. For clarity, we discuss only the charges and the proceedings that pertain to th e appellants. 3 I.
The appel lants' convictions stem from an extensive investigation by state and federal law enforcement agencies into the criminal activities of Jeffre y Lane Barnes, Kenneth Jones, and others who authorities believe d were responsible for a major drug distribution o peration and several drugrelated murders. On May 23, 1995, Barnes, Tina Mariam Scott, Alphonso Ray Tucker, Kenneth Michael Shaw, and Robert Lee Slater, Jr. were charged by revised superseding indictment with conspiring to possess with intent to distribute and conspiring to distribute in excess of five kilograms o f cocaine and in excess of fifty grams of cocaine base in violation of 2 1 U.S.C. § 841(a)(1), (b)(1)(A). The conspiracy charge carried a mandatory 2 minimum penalty of ten years imprisonment and a maximum penalty of life in priso n. All five appellants were also charged in multiple counts wit h using a communication facility for the commissio n of a felony in violation of 21 U.S.C. § 843(b). In addition, Barnes was indicted on eight counts of possession with intent to distribute and/or d istribution of cocaine and cocaine base in viola tion of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B); Tucker was charged wi th one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Finally, th e indictment charged Barnes with one count of using a minor to distribut e cocaine base and marijuana in violation of 21 U.S.C. § 861(a)(1).

Scott, Shaw, and Slater entered into plea agreements with th e government prior to trial whereby each pleaded guilty to one count of usin g a telephone to commit the crimes of possession with the

### Shaw entered into a plea agreement with the government o n 3 

### May 2, 1995 and admitted to co nduct involving 0.2 grams of cocaine base; Sc ott's agreement is dated May 9, 1995 and connects her t o more than one gram and less than two grams of cocaine base. Both Shaw and Scott agreed to cooperate with the government in th e pro secutions of their co-defendants. Slater entered into a ple a agreement with the government on July 19, 1995 without promi sing to cooper ate with the government against his co-defendants. Slate r admitted that his offense involved at least .25 grams but le ss than .50 grams of cocaine base.
4 inte nt to distribute and distribution of cocaine base. The governmen t 3 dismissed the remaining charges against them. T he court sentenced them to prison terms of twenty-one months, fifteen months, and thirty months , respectively.

Barnes and Tucker were tried by a jury in United States Distric t Court, District of Mi nnesota, from May 10 through May 18, 1995. The jury found Barnes guilty on all counts; Tucker was acquitted on one charge of illegal telephone use and found guilty on all remaining counts against him

. The cou rt sentenced Barnes to a prison term of 242 months and Tucker t o eighty-four months imprisonment.

Ba rnes challenges his conviction and sentence; Tucker appeals onl y his conviction; Scott, Shaw, and Slater challenge their sentences

. Together, the appellants claim: (1) the governme nt failed to establish the necessity of using telephone wiretaps; (2) the actions of a paid governmen t informant amounted to outrageous government conduct; (3) the government's cross-examination of Tucker about his alleged promotion of prostitutio n prejudiced the verdict against him; (4) the evidence was insufficient to support Barnes' and T ucker's convictions; (5) the court erred by refusing to give Scott and Shaw mitigating-role sentence adjustments; and (6) the court erred by not departing downward on the the ory that Slater's criminal history score dramatically overrepresented the seriousness of his prio r criminal history. We affirm.

### The recordings were the fruits of five intercept order s 4 

### involving three different telephone numbers: (1) an initial order dated November 12, 1993 authorizing a wiretap on the telephone of the residence where Barnes lived; (2) an order dated December 10, 1993 authorizing the continuation of the wiretap on Barnes ' telephone; (3) an initial order dated December 17, 1993 auth orizing a wiretap on the telephone of the residence where Kenneth Jone s lived; (4) an initial order dated January 15, 1994 authorizing a wiretap on the telephone of the residence where Russell Barne s lived; and (5) an order dated January 23, 1994 authorizing th e continuation of the wiretap on Jones' telephone.
5 II.
At trial, the government introduced seventy-four recorded telephone
conve rsations as evidence of both the drug conspiracy and using a
commu nication facility for commission of a felony. Barnes moved t o 4 suppress the evidence at trial and now appeals the denial of that motion. Barnes argues that the police affidavit used to secure the wiretaps did no t establish necessity as required by 18 U.S.C. § 2518. We review th e distric t court's determination for clear error. See United States v

. Macklin , 902 F.2d 132 0, 1327 (8th Cir. 1990), cert. denied , 498 U.S. 1031 (1991).
An application for an order authorizing a wiretap must include, among other requirements, "a full and complete statement as to whether or no t other i nvestigative procedures have been tried and failed or why the y
rea sonablyappear to be unlikely to succeed if tried or to be to o dangerous." 18 U.S.C. § 2518(1)(c). This necessity requirement ensures "that wir etaps are not routinely employed as the initial step in a n investigation," but "does not require that law enforcement officers exhaus t all possible techniques before applying for a wi retap." Macklin , 902 F.2d at 1326. The distric t court rejected Barnes' argument that the affidavit
was co nclusory, was filled with boilerplate language, and failed t o est ablish the necessity of the wiretaps. The forty-five page affidavi t
recoun ts details of a long investigation into the suspected crimina l activity, which included murder, of Barnes and

### Although unclear in his brief, Barnes seems to reques t 5 

### suppression of Caldwell's testimony as his only form of reli ef. We note that the typical relief sought for outrageous governmen t conduct is dismissal of the prosecution. See United States v

. Henderson-Durand , 985 F.2d 970, 973 n.4 (8th Cir. 1993) (exp laining ou trageous government conduct "essentially is a claim that th e government's conduct was so egregious that a prosecution bas ed upon tha t conduct would violate due process"), cert. denied , 510 U.S

. 856 (199 3); United States v. Lard , 734 F.2d 1290, 1296 (8th Cir

. 1984). Given our disposition of this issue, however, we need not reach the question of what relief would be appropriate. 6 others believed to be part of a tight-knit, violent group. According to the affidavit, authorities had attempted to infiltrate the organization fo r
more than three years before applying for a wiretap. Ordinary measure s used by authorities in the investigation, including ballistics reports , interviews with witne sses, confidential informants, surveillance, and pen registers, had proved unsuccessful; other measures, such as search warrant s and increased underco ver operations, were deemed either likely to fail or too dangerous. We hold that the court did not e rr in determining that the affidavit set out the need for the electronic surveillance in sufficient detail and declining to suppress the wiretap evidence.

III.

Barnes al so argues that the behavior of Ronald Caldwell, a pai d government informant who took drugs from controlled purchases for his own use, amounted to outrageous governmen t conduct. Barnes raises this claim 5 for the first time on appeal. We agree with the government that, under th e facts of this case, Barnes' failure to raise the claim in the distric t court constitutes a waiver.
Barnes had notice prior to trial of Caldwell's drug misappropr iation and disho nest behavior. On May 4, 1995, six days before the start o f trial, the government provided defense counsel

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wi th a letter revealing Caldwell's misconduct. Moreover, Caldwell' s testimony at trial is filled with admissions, in cluding that he took drugs for his personal use from FBI-financed drug purchases, Trial Tr. at 185, 191, 203, 214, that h e lied to agents about his conduct, id. at 187, 211, 264, and that on at least one occasion, he was too high during a controlle d purchase to remember who actually provided him w ith the drugs, id. at 241. Rat her than object to Caldwell's conduct at the time of trial, th e defendants gambled that the jury would discount his testimony. Considerin g all the f acts of this case, particularly the fact that Barnes was full y
aware of the basis for a claim of outrageous government conduct, we hold that Barnes has waived his claim of outrageous government conduct. Se e United States v. Henderson-Durand , 985 F.2d 970, 973-74 (8th Cir.) (failur e to raise outrageous government conduct claim until post-trial motio n constituted waiver where defendant knew of factual basis for claim bu t proceeded to trial using the same facts to present coercion defense), cert
. denied , 510 U.S. 856 (1993).

IV.

Tucker a rgues that the verdicts against him were prejudiced by th e govern ment's cross-examination of him about his alleged activities as a pimp. We review the district court's decision to permit the cross

examinati on for an abuse of discretion. See United States v. Ojeda , 2 3 F.3d 1473, 1477 (8th Cir. 1994).
Tucker testified in his own defense. When asked about his empl oyment his toryby his lawyer, Tucker stated that he ran a business, Touch o f Class, whereby he provided bars around the country with male and femal e exoti c dancers. Trial Tr. at 410. On cross-examination, over defens e counsel's objection, the government asked Tucker whether Touch of Class wa s a front for prostitut ion. Tucker denied the accusation. Id. at 445. To impeach his credibility, the government showed Tucker a transcript of an

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intercepted telephone call in which he talked ab out the amount of money he makes per night off o f women. Id. at 446. Tucker continued to deny that he promoted prostitut ion, and the government moved on to a different line of inquiry. Id. at 447.
The government's cross-examination consisted of a limited explo ration into the nature of Tucker's employment, an issue raised by Tucker. It the n sought to impeach his testimony using his prior inconsistent statements. The government, however, did not cross the line into offering imprope r extrins ic evidence to prove that Tucker was in fact a pimp. See Unite d State s v. Roulette , 75 F.3d 418, 423 (8th Cir. 1996) (impermissible t o introduce extrinsic evidence of prior to impeach witness on a collateral matter ). Moreover, after Tucker again denied involvement in promotin g prostitution, the government did not raise the issue again despite the fac t that Tucker's lawyer questioned other defense witnesses about Tucker' s business. See Trial Tr. at 469 (testimony of Tu cker's stepfather); id. at 471-72 (testimony of Touch of Class employee). Under the circumstances, the court did not abuse its discretion by allowing the limited inquiry int o the nature of Tucker's business.

V.

Both Barnes and Tucker challenge the sufficiency of the evidenc e against them. Barnes asserts that the testimony of his nephew, Russel l Barnes, was insufficient for the jury to convict him of distributing crack cocaine to his nephew. Tucker challenges the evidence with respect to eac h of hi s convictions. When reviewing the sufficiency of the evidence t o sustain a conviction, we view the evidence in a light most favorable to th e guilty ve rdict. See United States v. Shoffner , 71 F.3d 1429, 1433 (8t h Cir. 1995). The appellants must show that no reasonable jury could have fou nd them guilty beyond a reasonable doubt. See United States v

. Shoffner , 71 F.3d 1429, 1433 (8th Cir. 1995). Having

### The guidelines provide that a defendant is entitled to a 6 

### fou r-level decrease if she was a "minimal participant" in th e criminal activity. U.S.S.G. § 3B1.2(a). A minimal participant is one who is "plainly among the least culpable of those involved in the conduct of a group." U.S. S.G. § 3B1.2, comment (n.1). A twolevel decrease is appropriate if the defendant was a "mino r participant" in the criminal activity. U.S.S.G. § 3B1.2(b). A minor participant is any person who is less culpable than mos t other participants but whose role cannot be described as minimal. U.S.S.G. § 3B1.2, comment (n.3). For cases falling between (a) and (b), a three-level decrease is appropriate. U.S.S.G. § 3B1.2. 9 carefully reviewed th e record, we hold that the evidence is sufficient to support Barnes' and Tucker's convictions.

VI.

Both Scot t and Shaw challenge the sentences imposed by the district court. Specifically, they argue the court erredby denying their requests for minor-role reductions under section 3B1.2 of the sentencin g guid elines. Because a participant's status involves a factua l 6 determination, not a legal conclusion, United States v. Garvey , 905 F.2d 1144, 1146 (8th Cir. 1990), we must accept the district court's factua l fin dings regarding the appellants' role in the offenses unless they ar e clearlyerroneous. See United States v. Copeland , 45 F.3d 254, 256 (8th Cir. 1995).

We agree that neither Scott nor Shaw appears to have played a major rol e in the overall drug conspiracy, as opposed to their counts o f conviction for using a communication facility to facilitate a drug crime. Scott had been involved in a long-term, sometimes abusive, relationshi p with Barnes. The couple lived together until 1993 and has two children. Scott's conviction re lated to four telephone conversations she had with a girlfriend in which s he relayed messages to and from Barnes to facilitate her friend's purchase of crack cocaine from Barnes. In one conversation, Scott stated that some of her money was tied up in

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the drug s. Shaw, a drug user, was convicted for ordering .02 grams o f crack cocaine from Barnes over the telephone.

At their respective sentencing hearings, Scott and Shaw each move d for a djustments on the theory that they played mitigating roles in th e off enses. See U.S.S.G. § 3B1.2. The district court found that whil e Scott's role in the overall conspiracy might have been minor, she was an average participant in the telephone transaction . Scott Sentencing Tr. at 6. Simil arly, the court found that despite the small drug quantit y involv ed in the transaction, Slater did not play a minor role in th e illegal telephone use. Rather, according to the district court, Sha w "would really be viewed as an average participant rather than playing a minor or other mitigating role." Shaw Sentencing Tr. at 5.
The district court's findings are not clearly erroneous and the court did not err by declining to grant Scott and Shaw minor-role adjustments. Both Scott and Shaw used the telephone to negotiate a drug transaction , makin g them neither more nor less culpable than the average person wh o commits the same offense. With respect to the f act that the quantities of drugs involved in the transactions were small, w e note that the guidelines already account for this fact: The sentence for a section 843(b) violatio n depends di rectly on the drug quantity involved. See U.S.S.G. § 2D1. 6 (1994). Although thi s result might have been different if Scott and Shaw had been convicted of conspiracy, the court did not err in determining tha t Scott's and Shaw's roles in their offenses of conviction warranted n o sentencing reductions.

VII.

Finall y, Slater appeals the district court's refusal to depar t down ward on the theory that Slater's criminal history categor y overrepresented the true seriousness of his criminal background.

### 11

Sl ater had twenty-five adult convictions earning him twenty crimina l historypoints under the guidelines. The bulk of his prior conviction s
were for thefts in which Slater stole property to support his crack cocain e addiction. The district court indicated that it was aware that it ha d authority to depart downward if it concluded that the criminal histor y categoryoverrepresented the seriousness of Slater's criminal history or the likelihood that he will commit future crimes. Slater Sentencing Tr. at 8. Nonetheless, the court stated:

I simp ly cannot do that. I think as the presentenc e inve stigation report points out, in addition to th e series of crimes to which the defendant is receivin g points, ther e are other criminal activities that are not calcul ated in here, and I think when you look at th e totalityof the defendant's criminal history, categor y six is the appropriate designation for him.

Id. at 9. As Slater conceded at oral argument, the court's discretionary decision not to depar t downward under section 4A1.3 is unreviewable. See United States v. Hall , 7 F.3d 1394, 1396 (8th Cir. 1993). Therefore, we affirm Slater's sentence.

VIII.
In conclusion, we hold: (1) the gov ernment properly established the necessity of the wiretap, (2) Barnes waived his claim of outrageou s government conduct, (3) the court did not err bypermitting limited crossexamination of Tucker on the question of his promotion of prostitution, (4 ) Barnes' and Tucker's convictions were supported by substantial evidence; (5) the court did not err by declining to give Scott and Shaw mitigatingrole sentencing adjustments, and (6) the court's discretionary decision no t to depa rt downward on the theory that Slater's criminal history scor e overstated the seriousness of his criminal background is unreviewable by this c ourt. Therefore, we affirm the appellants' convictions an d sentences.

### 12 A true copy.

Attest:

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