US v. Paul Starner
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00008-LMB-1. Copies to all parties and the district court/agency. [999642187]. [14-4946]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4946
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PAUL STARNER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:14-cr-00008-LMB-1)
Submitted:
July 21, 2015
Decided:
August 18, 2015
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter L. Goldman, O’REILLY & MARK, P.C., Alexandria, Virginia,
for Appellant.
Dana J. Boente, United States Attorney,
Christopher Catizone, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On
September
24,
2014,
a
federal
jury
convicted
Paul
Starner of conspiracy to distribute cocaine and cocaine base in
violation of 21 U.S.C. §§ 841 (a)(1) and 846.
Before trial,
Starner filed two motions to suppress: one concerning wiretap
evidence and one concerning statements Starner made in a postarrest
Starner
interview.
now
The
appeals
district
those
court
denials.
denied
He
both
also
motions.
appeals
his
conviction, contending there was insufficient evidence for the
jury to find him guilty of conspiracy to distribute cocaine.
For the reasons that follow, we affirm.
I.
A.
In February 2013, as part of its investigation of a drugtrafficking
organization
operating
in
Prince
William
County,
Virginia, the Federal Bureau of Investigation (“FBI”) obtained
authorization from the district court to wiretap the telephone
communications of a suspected cocaine distributer.
The wiretap
revealed that the distributer’s name was Johnnie Hill and that
Hill frequently communicated with Starner.
The FBI obtained
four subsequent authorizations to tap Hill’s phone but never
tapped Starner’s phone.
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The information the FBI gathered over the wiretaps between
February and June 2013, led the FBI to believe Starner was a
low-level player in the conspiracy, purchasing small quantities
of powder and crack cocaine to redistribute to other buyers.
Starner was arrested on October 17, 2013.
Following his arrest, Starner was taken to the FBI’s field
office in Manassas, Virginia, where two Prince William County
detectives
interviewed
him.
The
detectives
testified
that
Starner was offered use of the restroom, and a bottle of water
and a granola bar prior to his interview.
They also testified
that Starner was handcuffed with his hands in front of him,
rather
than
behind
his
back,
so
that
he
would
be
more
comfortable.
Before the interview, the detectives sought to obtain a
written waiver of Starner’s Miranda rights.
Starner was unable
to read the waiver form because he did not have his glasses, so
the
detectives
After
the
read
Starner’s
detectives
Miranda
finished
rights
reading,
aloud
Starner
to
him.
verbally
acknowledged he understood his Miranda rights, and signed the
written waiver.
During the interview, Starner informed the detectives that
he had sustained a brain injury during a car accident in the
1970s and suffered from memory loss as a result.
Starner claims
that because of his injury he cannot remember anything about the
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interview, including whether he was offered food and beverage,
or whether he was informed of and waived his Miranda rights.
Starner
states
detectives
that
informed
he
him
does
he
remember,
could
receive
however,
up
to
30
that
the
years
in
prison if he did not answer their questions.
B.
In support of his motion to suppress the wiretap evidence,
Starner argued that the affidavits the government submitted in
support of its application for wiretap authorization did not
satisfy 18 U.S.C. § 2518(3), which requires the government to
demonstrate
probable
cause
for
a
wiretap
and
exhaust
intrusive measures before applying for a wiretap.
less
Starner also
claimed that the government failed to minimize its interception
of phone calls unrelated to the suspected criminal activity.
In
support of his motion to suppress his post-arrest statements,
Starner argued that his Miranda rights waiver was involuntary.
The district court denied both motions after a hearing on
September 22, 2014.
The court found that the government had
established probable cause to authorize the wiretap of Hill’s
phone
and
noted
that
Starner
could
not
identify
any
investigative procedures the FBI should have, but failed to, try
prior to applying for a wiretap, nor any phone calls or portions
of phone calls the FBI listened to impermissibly.
The court
also noted that it did not find Starner’s claims regarding his
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mental state at the time of his interview to be credible and
could
find
no
evidence
demonstrating
police
intimidation
failure to properly administer his Miranda rights.
or
Thus, the
district court admitted at trial evidence from the wiretaps and
Starner’s post-arrest interview.
one-day
trial,
the
jury
On September 24, 2014 after a
convicted
Starner
of
conspiracy
to
distribute cocaine and cocaine base.
II.
We turn first to Starner’s contention that the district
court erred in denying his motions to suppress.
factual
error
findings
and
regarding
legal
[a]
conclusions
motion
de
to
“We review
suppress
novo.”
Williams, 740 F.3d 308, 311 (4th Cir. 2014).
United
for
clear
States
v.
We construe the
evidence in the light most favorable to the prevailing party in
the district court.
(4th Cir. 2011).
United States v. Foster, 634 F.3d. 243, 246
Because the district court denied Starner’s
motions, we construe the evidence in the light most favorable to
the
government.
In
examining
the
sufficiency
of
a
wiretap
affidavit, “we review for abuse of discretion determinations of
necessity under § 2518, United States v. Wilson, 484 F.3d 267,
280 (4th Cir. 2007), and give great deference to the issuing
judge’s determination of probable cause, United States v. Depew,
932 F.2d 324, 327 (4th Cir. 1991).
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A.
Starner
suppressed
argues
the
evidence
Hill’s telephone.
district
that
court,
the
the
district
government
court
should
obtained
from
have
tapping
Starner contends here, as he did before the
that
the
government
failed
to
demonstrate
probable cause for the wiretap, failed to exhaust less intrusive
investigative
measures
before
applying
for
the
wiretaps,
and
failed to minimize its interception of phone calls unrelated to
the suspected criminal activity.
Starner also contends that the
district court erred in failing to hold an evidentiary hearing
concerning his motion to suppress.
We address each contention
in turn.
1.
18 U.S.C. § 2518 sets out three probable-cause requirements
the
government
interception
must
of
a
meet
before
a
individual’s
judge
may
telephone
authorize
the
communications:
“probable cause for belief that [the] individual is committing,
has
committed,
or
is
about
to
commit
a
particular
offense
enumerated in [18 U.S.C. § 2516]”; “probable cause for belief
that particular communications concerning that offense will be
obtained through such interception”; and probable cause that the
telephone to be tapped is “leased to, listed in the name of, or
commonly used by [the individual].”
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The government must establish such probable cause only with
respect to the individual whose phone is to be tapped; not for
every individual with whom the wiretap subject might exchange
phone calls during the authorized period.
If “recordings of [a]
defendant’s conversations [a]re . . . made incident to a lawful
wiretap, . . . it [is] not error to allow the introduction of
the taped telephone calls simply because defendant was not named
in the application or order as one whose conversations would
possibly be intercepted.”
294 (4th Cir. 1977).
United States v. Smith, 565 F.2d 292,
Thus, the government’s interception of
telephone conversations between Hill and Starner was proper so
long
as
the
government
had
sufficient
probable
cause
to
tap
Hill’s telephone.
The
district
affidavits
Hill’s
court
contained
phone,
and
found
“tons
that
that
of
“any
the
government’s
evidence”
fair
reading
to
of
support
the
wiretap
tapping
affidavits
establishes adequate probable cause to justify” tapping Hill’s
telephone.
J.A. 48, 50.
Although Starner correctly points out
that Hill was not mentioned by name in the government’s initial
wiretap affidavit, the wiretap statute does not require that the
government identify a target individual’s name.
Rather, it only
requires probable cause that the target individual is committing
an offense, that the government will obtain information about
the offense by listening to the target individual’s telephone
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calls, and that the telephone identified by the government does
indeed belong to the target individual.
Starner has offered no
argument that the government failed to meet those requirements.
Thus,
we
defer
to
the
district
court’s
finding
that
the
requisite probable cause existed to justify the wiretap.
2.
Starner next argues that the government failed to exhaust
normal investigative procedures before applying for the wiretap.
The wiretap statute requires the government to show that “normal
investigative
procedures
have
been
tried
and
have
failed
or
reasonably appear to be unlikely to succeed if tried or to be
too
dangerous.”
18
U.S.C.
§
2518(3)(c).
To
meet
this
exhaustion requirement, the government must provide more than “a
mere
boilerplate
usable
recitation
evidence,”
but
“the
of
the
difficulties
adequacy
of
[the
of
gathering
government’s]
showing is to be tested in a practical and commonsense fashion
that
does
not
hamper
enforcement agents.”
unduly
the
investigative
powers
of
law
United States v. Oriakhi, 57 F.3d 1290,
1298 (4th Cir. 1995) (quotation and alteration omitted).
Here,
the
20 investigative
government’s
tactics
the
affidavits
government
had
discussed
tried
applying for the wiretap. Appellee’s Br. at 17.
prior
over
to
Starner does
not point to any alternative tactics the government could have
utilized. Thus, we defer to the district court’s finding that
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government
adequately
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exhausted
normal
investigative
procedures before applying for the wiretap.
3.
Starner
next
argues
that
the
government
did
not
sufficiently minimize its collection of wiretap evidence.
The
wiretap statute provides that wiretaps “shall be conducted in
such a way as to minimize the interception of communications not
otherwise subject to interception . . . , and must terminate
upon
attainment
§ 2518(5).
innocent
of
the
authorized
objective.”
28
U.S.C.
“The wiretapping statute does not require that all
communications
be
left
untouched,”
and
“[i]n
determining whether the minimization requirements of § 2518(5)
have been met, courts apply a standard of reasonableness on a
case-by-case
government
record
basis.”
followed
innocent
Appellee’s
Br.
particular
at
Oriakhi,
proper
57
procedures
communications
18-19,
telephone
and
any
conversation
failure
to
comply
with
the
to
at
1300.
ensure
than
fails
to
that
he
Here,
it
more
Starner
government intercepted improperly.
a
F.3d
did
the
not
necessary,
identify
believes
any
the
Thus, he fails to establish
wiretap
statute’s
minimization
requirement.
4.
Finally, Starner claims that the district court erred by
failing to conduct an evidentiary hearing concerning Starner’s
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motion to suppress wiretap evidence.
the
government’s
probable
wiretap
cause
conversations
contending
to
that
affidavits
justify
with
established
intercepting
Starner.
the
We have already held that
To
district
the
court
sufficient
Hill’s
extent
should
telephone
Starner
have
held
is
an
evidentiary hearing concerning the accuracy of the government’s
statements in its wiretap affidavits, see Franks v. Delaware,
438
U.S.
Supreme
154
(1978),
Court
evidentiary
defendant
held
hearing
has
that
that
be
offered
argument
the
held
Fourth
at
proof
a
fails.
In
Amendment
defendant’s
that
an
Franks,
the
requires
an
request
affidavit
if
the
contains
indications of deliberate falsehood or reckless disregard for
the truth.
438 U.S. at 155 - 56, 171.
Starner offered no such
proof in the district court and has offered none here.
B.
We turn next to Starner’s argument that evidence from his
post-arrest
interview
should
be
suppressed
because
he
was
mentally unable to voluntarily waive his Miranda rights.
To
determine whether a confession was given involuntarily, “[t]he
proper
inquiry
is
whether
overborne
or
his
capacity
impaired”
by
“threats,
the
defendant’s
for
will
self-determination
violence,
implied
promises,
influence, or other coercive police activity.”
has
been
critically
improper
United States v.
Holmes, 670 F.3d 586, 591 (4th Cir. 2012) (quotation omitted).
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thus
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considering,
circumstances,
including
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we
review
not
just
the
totality
whether
there
of
was
the
coercive
police activity, but also “the characteristics of the defendant,
the
setting
of
interrogation.”
the
interview,
and
the
details
of
the
Id.
Here, Starner claims that he was mentally incapacitated at
the
time
of
the
interview
due
to
a
brain
injury
he
claims
impairs his short- and long-term memory, and that the police
coerced him by informing him that if he did not answer their
questions,
he
could
be
subject
to
30
years
in
prison.
In
support, he cites only his own testimony, which the district
court did not find credible.
See J.A. 123.
Even if the police
did inform Starner that he potentially faced 30 years in prison,
“statements
by
law
enforcement
officers
that
are
merely
uncomfortable or create a predicament for a defendant are not
ipso factor coercive.”
the
totality
coercion.
of
the
Holmes, 670 F.3d at 592–93.
circumstances
does
not
Further,
indicate
police
Starner was offered access to the restroom, food and
beverage, and was placed in handcuffs with his arms in front of
him, rather than behind his back.
The police read Starner’s
Miranda rights aloud to him, and saw no indication that Starner
did not comprehend their communications.
Based on this record,
we cannot overturn the district court’s finding that Starner
voluntarily waived his Miranda rights.
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III.
We
turn
finally
to
Starner’s
claim
that
there
was
insufficient evidence in the record to support his conviction.
We review the sufficiency of the evidence in the light most
favorable to the government as well, and the jury verdict must
be sustained if there is substantial evidence to support the
conviction.
2011).
United States v. Jaensch, 665 F.3d 83, 93 (4th Cir.
In determining the sufficiency of the evidence, “we do
not weigh the evidence or assess the credibility of witnesses,
but assume that the jury resolved any discrepancies in favor of
the government.”
Cir. 2007).
United States v. Kelly, 510 F.3d 433, 440 (4th
“Reversal for insufficient evidence is reserved for
the rare case where the prosecution's failure is clear.”
United
States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010).
“Conspiracy is an inchoate offense, the essence of which is
an
agreement
Edmonds,
679
to
commit
F.3d
an
169,
unlawful
173
(4th
act.”
Cir.
United
2012).
States
“To
v.
prove
conspiracy, the government need not prove an explicit agreement.
It may rely upon indirect evidence from which the conspiracy
agreement may be inferred.”
Id. at 174.
Such indirect evidence
may include the amount of cocaine involved in the distribution,
the regularity of distribution transactions, and distributions
involving a credit agreement known as “fronting.”
12
Id.
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The
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government
presented
evidence at Starner’s trial.
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all
three
examples
of
indirect
First, Starner admitted to buying
over $200 of cocaine at one time, which one of the lead FBI
agents on the case testified was an amount inconsistent with
purely
personal
indicate
the
use.
Second,
regularity
of
transcripts
Starner
and
of
tapped
Hill’s
calls
transactions.
During one call, after Starner told Hill he didn’t have his
“stuff” or his money, Hill told Starner “we been through this
10 times
man.”
Later
in
the
conversation,
Hill
said,
“this
ain’t the first or second or third time you did this to me.”
Finally, in a separate conversation, after establishing Starner
had taken some of Hill’s product, Starner said, “I apologize
Bush I got a hundred right now but I’ll have the rest of it
tomorrow
or
credit.
In reviewing this evidence in the light most favorable
to
government,
the
the
next
day,”
we
find
indicating
Starner
sufficient
paid
evidence
to
Hill
on
sustain
Starner’s conviction.
IV.
For the foregoing reasons, we affirm the judgment of the
district
facts
court.
and
materials
legal
before
We
dispense
with
oral
argument
contentions
are
adequately
this
and
argument
court
because
presented
would
not
the
in
the
aid
the
decisional process.
AFFIRMED
13
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