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 on

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September 21, 1994. The government filed a revised indictment on

November 23, 1994. Six other individuals, not parties to this

appeal, were also named in the indictment. For clarity, we discuss

only the charges and the proceedings that pertain to the

appellants.

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I.

The appellants' convictions stem from an extensive investigation by

state and federal law enforcement agencies into the criminal activities of

Jeffrey Lane Barnes, Kenneth Jones, and others who authorities believed

were responsible for a major drug distribution operation 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 of

cocaine and in excess of fifty grams of cocaine base in violation of 21

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

prison. All five appellants were also charged in multiple counts with

using a communication facility for the commission 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 distribution of cocaine and

cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B);

Tucker was charged with one count of possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Finally, the

indictment charged Barnes with one count of using a minor to distribute

cocaine base and marijuana in violation of 21 U.S.C. § 861(a)(1).

Scott, Shaw, and Slater entered into plea agreements with the

government prior to trial whereby each pleaded guilty to one count of using

a telephone to commit the crimes of possession with the
 Shaw entered into a plea agreement with the government on

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May 2, 1995 and admitted to conduct involving 0.2 grams of cocaine

base; Scott's agreement is dated May 9, 1995 and connects her to

more than one gram and less than two grams of cocaine base. Both

Shaw and Scott agreed to cooperate with the government in the

prosecutions of their co-defendants. Slater entered into a plea

agreement with the government on July 19, 1995 without promising to

cooperate with the government against his co-defendants. Slater

admitted that his offense involved at least .25 grams but less than

.50 grams of cocaine base. 

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intent to distribute and distribution of cocaine base. The government

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dismissed the remaining charges against them. The 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 District

Court, District of Minnesota, 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 court sentenced Barnes to a prison term of 242 months and Tucker to

eighty-four months imprisonment.

Barnes challenges his conviction and sentence; Tucker appeals only

his conviction; Scott, Shaw, and Slater challenge their sentences.

Together, the appellants claim: (1) the government failed to establish the

necessity of using telephone wiretaps; (2) the actions of a paid government

informant amounted to outrageous government conduct; (3) the government's

cross-examination of Tucker about his alleged promotion of prostitution

prejudiced the verdict against him; (4) the evidence was insufficient to

support Barnes' and Tucker'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 theory that Slater's criminal

history score dramatically overrepresented the seriousness of his prior

criminal history. We affirm.
 The recordings were the fruits of five intercept orders

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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 authorizing

a wiretap on the telephone of the residence where Kenneth Jones

lived; (4) an initial order dated January 15, 1994 authorizing a

wiretap on the telephone of the residence where Russell Barnes

lived; and (5) an order dated January 23, 1994 authorizing the

continuation of the wiretap on Jones' telephone.

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II.

At trial, the government introduced seventy-four recorded telephone

conversations as evidence of both the drug conspiracy and using a

communication facility for commission of a felony. Barnes moved to

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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 not

establish necessity as required by 18 U.S.C. § 2518. We review the

district court's determination for clear error. See United States v.

Macklin, 902 F.2d 1320, 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 not

other investigative procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried or to be too

dangerous." 18 U.S.C. § 2518(1)(c). This necessity requirement ensures

"that wiretaps are not routinely employed as the initial step in an

investigation," but "does not require that law enforcement officers exhaust

all possible techniques before applying for a wiretap." Macklin, 902 F.2d

at 1326. The district court rejected Barnes' argument that the affidavit

was conclusory, was filled with boilerplate language, and failed to

establish the necessity of the wiretaps. The forty-five page affidavit

recounts details of a long investigation into the suspected criminal

activity, which included murder, of Barnes and
 Although unclear in his brief, Barnes seems to request

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suppression of Caldwell's testimony as his only form of relief. We

note that the typical relief sought for outrageous government

conduct is dismissal of the prosecution. See United States v.

Henderson-Durand, 985 F.2d 970, 973 n.4 (8th Cir. 1993) (explaining

outrageous government conduct "essentially is a claim that the

government's conduct was so egregious that a prosecution based upon

that conduct would violate due process"), cert. denied, 510 U.S.

856 (1993); 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.

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others believed to be part of a tight-knit, violent group. According to

the affidavit, authorities had attempted to infiltrate the organization for

more than three years before applying for a wiretap. Ordinary measures

used by authorities in the investigation, including ballistics reports,

interviews with witnesses, confidential informants, surveillance, and pen

registers, had proved unsuccessful; other measures, such as search warrants

and increased undercover operations, were deemed either likely to fail or

too dangerous. We hold that the court did not err 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 also argues that the behavior of Ronald Caldwell, a paid

government informant who took drugs from controlled purchases for his own

use, amounted to outrageous government conduct. Barnes raises this claim 5

for the first time on appeal. We agree with the government that, under the

facts of this case, Barnes' failure to raise the claim in the district

court constitutes a waiver.

Barnes had notice prior to trial of Caldwell's drug misappropriation

and dishonest behavior. On May 4, 1995, six days before the start of

trial, the government provided defense counsel
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with a letter revealing Caldwell's misconduct. Moreover, Caldwell's

testimony at trial is filled with admissions, including that he took drugs

for his personal use from FBI-financed drug purchases, Trial Tr. at 185,

191, 203, 214, that he lied to agents about his conduct, id. at 187, 211,

264, and that on at least one occasion, he was too high during a controlled

purchase to remember who actually provided him with the drugs, id. at 241.

Rather than object to Caldwell's conduct at the time of trial, the

defendants gambled that the jury would discount his testimony. Considering

all the facts of this case, particularly the fact that Barnes was fully

aware of the basis for a claim of outrageous government conduct, we hold

that Barnes has waived his claim of outrageous government conduct. See

United States v. Henderson-Durand, 985 F.2d 970, 973-74 (8th Cir.) (failure

to raise outrageous government conduct claim until post-trial motion

constituted waiver where defendant knew of factual basis for claim but

proceeded to trial using the same facts to present coercion defense), cert.

denied, 510 U.S. 856 (1993).

IV.

Tucker argues that the verdicts against him were prejudiced by the

government's cross-examination of him about his alleged activities as a

pimp. We review the district court's decision to permit the crossexamination for an abuse of discretion. See United States v. Ojeda, 23

F.3d 1473, 1477 (8th Cir. 1994).

Tucker testified in his own defense. When asked about his employment

history by his lawyer, Tucker stated that he ran a business, Touch of

Class, whereby he provided bars around the country with male and female

exotic dancers. Trial Tr. at 410. On cross-examination, over defense

counsel's objection, the government asked Tucker whether Touch of Class was

a front for prostitution. 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 about the amount of money he

makes per night off of women. Id. at 446. Tucker continued to deny that

he promoted prostitution, and the government moved on to a different line

of inquiry. Id. at 447. 

The government's cross-examination consisted of a limited exploration

into the nature of Tucker's employment, an issue raised by Tucker. It then

sought to impeach his testimony using his prior inconsistent statements.

The government, however, did not cross the line into offering improper

extrinsic evidence to prove that Tucker was in fact a pimp. See United

States v. Roulette, 75 F.3d 418, 423 (8th Cir. 1996) (impermissible to

introduce extrinsic evidence of prior to impeach witness on a collateral

matter). Moreover, after Tucker again denied involvement in promoting

prostitution, the government did not raise the issue again despite the fact

that Tucker's lawyer questioned other defense witnesses about Tucker's

business. See Trial Tr. at 469 (testimony of Tucker'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 into

the nature of Tucker's business. 

V.

Both Barnes and Tucker challenge the sufficiency of the evidence

against them. Barnes asserts that the testimony of his nephew, Russell

Barnes, was insufficient for the jury to convict him of distributing crack

cocaine to his nephew. Tucker challenges the evidence with respect to each

of his convictions. When reviewing the sufficiency of the evidence to

sustain a conviction, we view the evidence in a light most favorable to the

guilty verdict. See United States v. Shoffner, 71 F.3d 1429, 1433 (8th

Cir. 1995). The appellants must show that no reasonable jury could have

found 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

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four-level decrease if she was a "minimal participant" in the

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 "minor

participant" in the criminal activity. U.S.S.G. § 3B1.2(b). A

minor participant is any person who is less culpable than most

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.

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carefully reviewed the record, we hold that the evidence is sufficient to

support Barnes' and Tucker's convictions.

VI.

Both Scott and Shaw challenge the sentences imposed by the district

court. Specifically, they argue the court erred by denying their requests

for minor-role reductions under section 3B1.2 of the sentencing

guidelines. Because a participant's status involves a factual

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 factual

findings regarding the appellants' role in the offenses unless they are

clearly erroneous. 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

role in the overall drug conspiracy, as opposed to their counts of

conviction for using a communication facility to facilitate a drug crime.

Scott had been involved in a long-term, sometimes abusive, relationship

with Barnes. The couple lived together until 1993 and has two children.

Scott's conviction related to four telephone conversations she had with a

girlfriend in which she 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 drugs. Shaw, a drug user, was convicted for ordering .02 grams of

crack cocaine from Barnes over the telephone. 

At their respective sentencing hearings, Scott and Shaw each moved

for adjustments on the theory that they played mitigating roles in the

offenses. See U.S.S.G. § 3B1.2. The district court found that while

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. Similarly, the court found that despite the small drug quantity

involved in the transaction, Slater did not play a minor role in the

illegal telephone use. Rather, according to the district court, Shaw

"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,

making them neither more nor less culpable than the average person who

commits the same offense. With respect to the fact that the quantities of

drugs involved in the transactions were small, we note that the guidelines

already account for this fact: The sentence for a section 843(b) violation

depends directly on the drug quantity involved. See U.S.S.G. § 2D1.6

(1994). Although this result might have been different if Scott and Shaw

had been convicted of conspiracy, the court did not err in determining that

Scott's and Shaw's roles in their offenses of conviction warranted no

sentencing reductions. 

VII.

Finally, Slater appeals the district court's refusal to depart

downward on the theory that Slater's criminal history category

overrepresented the true seriousness of his criminal background. 
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Slater had twenty-five adult convictions earning him twenty criminal

history points under the guidelines. The bulk of his prior convictions

were for thefts in which Slater stole property to support his crack cocaine

addiction. The district court indicated that it was aware that it had

authority to depart downward if it concluded that the criminal history

category overrepresented 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 simply cannot do that. I think as the presentence

investigation report points out, in addition to the

series of crimes to which the defendant is receiving

points, there are other criminal activities that are not

calculated in here, and I think when you look at the

totality of the defendant's criminal history, category

six is the appropriate designation for him.

Id. at 9. As Slater conceded at oral argument, the court's discretionary

decision not to depart 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 government properly established the

necessity of the wiretap, (2) Barnes waived his claim of outrageous

government conduct, (3) the court did not err by permitting 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 not

to depart downward on the theory that Slater's criminal history score

overstated the seriousness of his criminal background is unreviewable by

this court. Therefore, we affirm the appellants' convictions and

sentences.
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A true copy.

Attest:

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