United States v. James Milliner

Filing

PER CURIAM OPINION FILED - THE COURT: Duane Benton, Michael J. Melloy and Bobby E. Shepherd (PUBLISHED) [4190147] [14-1129]

United States Court of Appeals
For the Eighth Circuit
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No. 14-1129
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
James L. Milliner
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: August 22, 2014
Filed: August 27, 2014
[Published]
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Before BENTON, MELLOY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
A jury convicted James Lee Milliner of conspiracy to distribute cocaine base,
in violation of 21 U.S.C. §§ 841(a) and 846. He appeals the conviction, challenging
the sufficiency of the evidence and the denial of his motion to suppress wiretap
evidence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

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In 2010 the Drug Enforcement Administration began investigating Charles E.
McRoberts for trafficking crack cocaine. By late 2010, the government had a
significant amount of information. Confidential sources said that McRoberts paid
Michael B. Rogers to sell crack outside a “Pavilion” in Wright City, Missouri. When
Rogers was incarcerated, Halesha C. Bradshaw took over the sales. A buyer of crack
would call a number (telephone #1). McRoberts provided the crack to Rogers (later
Bradshaw) in the morning, and in the evening, collected the money (and the remaining
crack). The confidential sources said that some local police were being paid off to
help the distribution.
In November 2010, the government applied for, and obtained, wiretap orders
for the cellular telephones of the crack ring. During the 20-day existence of the first
wiretap, defendant Milliner would watch for police near the Pavilion, and also picked
up proceeds and remaining crack when McRoberts could not do it. At trial, the
government played recorded calls corroborating Milliner’s participation. Shortly after
the government began wiretapping telephone #1, Bradshaw became nervous and quit.
Every contact in telephone #1 was called and given a new number (telephone #4).
Sales also moved from the Pavilion to an apartment complex. The government
stopped intercepting calls from telephone #1 and got a wiretap authorization for
telephone #4. Milliner was recorded on the wiretaps of telephone #4. In March 2011,
police searched Milliner’s apartment, where they found a digital scale, but no crack.
Arrested, Milliner said he and McRoberts had nothing to do with the crack trafficking,
but later admitted he held money for Bradshaw once, provided crack to another
distributor once, and packaged crack once.
Milliner argues that the district court1 should have suppressed evidence
uncovered through wiretaps on telephone #1 and telephone #4 because they did not

1

The Honorable Rodney W. Sippel, United States District Court Judge for the
Eastern District of Missouri, adopting the memorandum and recommendation of the
Honorable Terry I. Adelman, United States Magistrate Judge for the Eastern District
of Missouri.
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meet the “necessity” requirement in 18 U.S.C. § 2518(1)(c) and (3)(c). He claims the
wiretaps were not necessary because the investigation had already revealed enough
information, other investigative techniques were not too dangerous, and the authorized
objectives of the investigation could never be accomplished through wiretaps.
Regardless, Milliner claims that the evidence at trial was insufficient to support the
verdict.
I.
“We review the denial of a motion to suppress de novo but review underlying
factual determinations for clear error, giving due weight to the inferences of the
district court and law enforcement officials.” United States v. Thompson, 690 F.3d
977, 984 (8th Cir. 2012). Each wiretap application must include “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). Before granting a wiretap application, the court
must find 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). Whether the government made this showing of “necessity” is a factual
finding, reviewed for clear error. United States v. West, 589 F.3d 936, 939 (2009).
“The necessity requirement of § 2518 insures ‘that wiretaps are not routinely
employed as the initial step in an investigation.’” United States v. Jackson, 345 F.3d
638, 644 (8th Cir. 2003), quoting United States v. Thompson, 210 F.3d 855, 859. (8th
Cir. 2000). However, “[i]f law enforcement officers are able to establish that
conventional investigatory techniques have not been successful in exposing the full
extent of the conspiracy and the identity of each coconspirator, the necessity
requirement is satisfied.” West, 589 F.3d at 939, quoting Jackson, 345 F.3d at 644.

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Milliner claims the government did not need the wiretaps because it already had
enough information to prosecute members of the conspiracy. While there may have
been enough evidence to prosecute some actors, there was not enough to effectively
prosecute everyone involved. The wiretaps issued for telephones #1 and #4 were
requested to shed light on the full scope of the crack conspiracy. The DEA agent’s
affidavit details the techniques attempted: surveillance, confidential sources,
controlled purchases, trash seizures, electronic toll-record analysis, interviews with
targets and witnesses, grand jury testimony, subpoenas of financial and tax
information, review of police records, GPS devices, and a pole camera. Despite all
these techniques, the government still did not know where McRoberts obtained the
cocaine, how he laundered the proceeds from the sales, and where he stored the drugs
or the proceeds. See West, 589 F.3d at 939 (finding the necessity requirement satisfied
when “the government had obtained a significant amount of information about the
extensive drug operation, [but] had not uncovered the sources of the cocaine in which
he dealt”).
Milliner asserts that other investigative techniques were not too dangerous.
However, the affidavits said that McRoberts and his associates were armed, and local
police were being paid to help them. This indicates that some investigative techniques
were dangerous. Even if other investigative techniques were not dangerous, “Congress
prohibited wiretapping only when normal investigative techniques are likely to
succeed and are not too dangerous.” United States v. Daly, 535 F.2d 434, 438 (8th
Cir. 1976) (emphasis added). Here, some normal techniques were tried and failed (or
were unlikely to succeed in the first place), so the non-dangerous nature of these
techniques is irrelevant.
Finally, Milliner claims the authorized objectives of the wiretaps could never
be attained because telephones #1 and #4 were mostly used to communicate with
buyers. According to the wiretap affidavits, one objective was to determine if
McRoberts himself was using a telephone. After intercepting calls from telephone #1,
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police determined he was using yet another telephone (which McRoberts stopped
using shortly after its wiretap was authorized). When the government applied for the
wiretap on telephone #4, it still did not know what number McRoberts was using.2
The district court did not clearly err in concluding that this particular objective could
be obtained through the interception.
II.
Milliner argues that the evidence was insufficient, as a matter of law, to
establish that he knowingly agreed to join a conspiracy to distribute crack. “We
review the sufficiency of the evidence de novo, viewing evidence in the light most
favorable to the government, resolving conflicts in the government’s favor, and
accepting all reasonable inferences that support the verdict.” United States v. Miller,
698 F.3d, 699, 702 (8th Cir. 2012). “To establish that a defendant conspired to
distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there
was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant
knew of the conspiracy; and (3) that the defendant intentionally joined the
conspiracy.” United States v. Polk, 715 F.3d 238, 246 (8th Cir. 2013).
Rogers testified Milliner held the cocaine that he was responsible for selling.
Milliner then sometimes replenished his supply. Rogers also testified that Milliner
twice accompanied McRoberts and him to purchase powder cocaine. Bradshaw
testified that McRoberts told her Milliner was “her eyes and ears” while she was
distributing crack. If she ever needed anything checked on or did not feel safe, she
was supposed to call Milliner and he would check things out. More than one witness
testified—and Milliner himself admitted—that he packaged crack. During a search
of Milliner’s apartment, they found a scale in his kitchen (which matched the scale
2

This point answers Milliner’s argument that the government did not need the
wiretap for telephone #4 (when analyzed separately from the authorization from
telephone #1).
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used in McRoberts’s operation). On several phone calls Milliner spoke “in code”
about drug sales. Although Milliner’s role in the conspiracy changed over time, “it
is not necessary that the participants or activities remain static throughout the duration
of the conspiracy. . . . The jury must simply be able to find that there was . . . a
common unlawful end.” United States v. Hill, 410 F.3d 468, 471-72 (8th Cir. 2005).
Taking the facts most favorable to the verdict, the government presented
sufficient evidence for a reasonable jury to conclude that Milliner knowingly joined
in the conspiracy to distribute crack.
*******
The judgment is affirmed.
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