Unpublished Disposition, 909 F.2d 1490 (9th Cir. 1986)

MEMORANDUM^* 

Elrader Browning, George Cameron and Gregory Washington appeal from their convictions of multiple violations of federal law stemming from their involvement in a common drug trafficking operation. They claim that the district court erred by denying their motion to suppress evidence gathered by means of warrant-authorized wiretaps placed on defendants' telephones. Browning also claims that the sentence he received violates his constitutional rights. We affirm.

The defendants raise two issues relating to the wiretap evidence: first, whether the judge who issued the warrant authorizing the wiretaps properly determined that the wiretap was necessary for the government's investigation; and second, whether the trial judge properly determined that there were no intentional or reckless omissions or misrepresentations in the wiretap application. We conclude that the former decision was not an abuse of discretion and that the latter decision was not clearly erroneous, and therefore uphold them. See United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988) (indicating standards of review).

Statutory law required the court to determine, before issuing the warrant, that "normal investigative procedures [had] been tried and [had] failed or reasonably appear [ed] to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3) (c). In light of the government's showing that it was encountering serious difficulty even after lengthy investigative efforts using more conventional means, the court acted well within its discretion in finding this condition satisfied.

The defendants point out that the affidavit in support of the warrant revealed that the government had already developed substantial knowledge of the Browning operation. The government does not dispute this; it emphasizes, however, that its knowledge, even though substantial, was deficient in at least two ways. First, there was no direct evidence about significant features of the enterprise. Several of the government's informants were unable to break into the organization's inner circle, where they could acquire direct evidence about the identity of suppliers, the distribution of profits and the role of Browning.¹  (Undercover DEA agents had failed to penetrate the operation beyond the retail level.) Second, the possible sources of inside information did not represent good prospects for presenting proof at trial. At least three of the informants were unwilling to testify. Another, who had previous drug convictions and would therefore have credibility problems as a witness, refused to wear a body wire that would have provided corroboration for his testimony.

The existence of these problems lent substantial support to the warrant application. See United States v. McCoy, 539 F.2d 1050, 1056 (5th Cir. 1976) (no evidence of full extent of illegal operation), cert. denied, 431 U.S. 919 (1977); United States v. Santora, 600 F.2d 1317, 1320 (9th Cir.) (informant's unwillingness to testify), modified on other grounds, 609 F.2d 433 (9th Cir. 1979); United States v. Dennis, 786 F.2d 1029, 1036 (11th Cir. 1986) (refusal to carry recording device undermined worth of potentially useful witness), cert. denied, 481 U.S. 1037 (1987).

The defendants also argue that the affidavit in support of the warrant did not demonstrate that other investigative techniques had been considered and rejected as reasonably unlikely to achieve the investigation's objective. More particularly, say the defendants, immunity, extended use of informants and financial inquiries were not mentioned. The affidavit did, however, contain a detailed discussion of four conventional investigative means that had been ruled out: grand jury, search warrants, interviews of suspects and trash searches. Appellee's Excerpts at 63, paragraphs 166-73. Contrary to the defendant's statement, the discussion did include immunity. See id. at p 167.

As to the use of informants, the affidavit amply explained why each of the seven could not provide the government with the evidence it needed. For example, Source # 1, although perhaps ultimately able to make contact with Browning himself, as the defendants argue, was described in the affidavit as not having the ability to learn the identities of suppliers or customers. See Appellee's Excerpt at 57, p 110. Source # 7, who might have been able to acquire information about the full scope and inner workings of the operation, was likely to have serious credibility problems as a prosecution witness. See Appellee's Excerpt at 44, p 75.² 

The defendants do point out one investigative possibility that is indeed absent from the affidavit, tracing financial transactions. However, the government appears not to have had many leads as to the source and placement of the organization's funds. The only indication that the government had any information at all on this subject was in the suppression hearing testimony of Source # 7, whose credibility at that time was suspect. In any case, nothing in particular was known at the time the affidavit was filed to suggest that tracing financial transactions was a viable investigative option.

2. Material omissions and misrepresentations.

In deciding the suppression motion, the district court was obligated to examine whether the application for the wiretap warrant contained any intentional or reckless omissions or misrepresentations. See United States v. Carneiro, 861 F.2d at 1176.³  In light of the evidence that both prosecution and defense presented the district court on this issue, we conclude that the court did not clearly err in finding no such infirmity.

The defendants assert that the affidavit filed in support of the warrant contained four specific material errors. First, according to the defendants, the affidavit misrepresented Source # 1's ability to meet with Browning by omitting the fact that his unsuccessful attempt at such a meeting was the only attempt he ever made. The record, however, shows that there was no misrepresentation; nothing at the time suggested that repeated efforts at meeting Browning would have been more fruitful. During two separate conversations with Source # 1, both recorded, Browning declined to participate directly in proposed drug transactions; at one point, Browning explicitly referred Source # 1 to an intermediary. These conversations tended to support the government's position that Source # 1 would not be able to engage Browning personally in drug negotiations.⁴ 

Second, the defendants assert that the affidavit improperly failed to state that Source # 1 had succeeded in selling cocaine to Anthony Anderson of the Browning organization. Evidence at the suppression hearing, however, failed to establish that such sales ever occurred, or that the government had knowledge of them if they did occur. The district court disbelieved the only two witnesses who testified to the sales. Given that one witness was a convicted perjurer, and the other (Anderson himself) filed his statement only after he was sentenced and incarcerated for his participation in the Browning ring, and that their statements were contradictory, the court's credibility judgment was far from clearly erroneous. Furthermore, the author of the warrant affidavit testified that he had never heard of Anderson until after the wiretap was in place, and that Source # 1, when asked about Anderson, denied knowing him. This testimony tended to disprove the defendants' allegation of intentional omission.

Third, the defendants argue that the affidavit misrepresented Source # 7's ability to meet the objectives of the investigation. The basis of this charge is Source # 7's suppression hearing testimony concerning what he had told government investigators prior to the wiretap application. However, the district court considered that testimony to lack credibility. Source # 7's version of events conflicted sharply with that of the investigators, and with contemporaneous notes of meetings between Source # 7 and government agents; in these circumstances, the district court's credibility judgment was proper.⁵ 

Finally, the defendants urge that the affidavit should have noted that Browning was in prison for three years during which some of the murders with which he was linked took place; This fact, they say, would have undermined the claim that some of the informants had refused to testify out of fear of retaliation by Browning. Quite sensibly, the district court considered the omission immaterial because the affidavit did not state that Browning had personally committed the murders, only that he had ordered them.

1. Mandatory sentence as ex post facto application

Browning contends that charging and sentencing him under the current versions of 21 U.S.C. § 848(b) (1) and 21 U.S.C. § 841(b) (1) (B) constituted an ex post facto application of the law. His theory is that the current Secs. 848(b) and 841(b) (1) (B) became effective in November 1987, that is, after the occurrence of the conduct for which he was convicted. Browning's understanding of the effective date of these statutes in incorrect.

The current versions of Secs. 848(b) and 841(b) (1) (B) were parts of P.L. 99-570. Browning argues that the entire law became effective in November 1987. For this conclusion, he felies upon Sec. 1004(b) of P.L. 99-570. That section, however, relates only to Sec. 1004(a), which concerns special parole periods. It is clear that Sec. 1004(b) is so limited because there are, in other parts of P.L. 99-570, similar "effective date" clauses appearing in individual sections. Obviously, these clauses relate only to the particular sections of P.L. 99-570 of which they are parts.

There being no special "effective date" clauses for the sections of P.L. 99-570 at issue here (i.e., those amending Secs. 848(b) and 841(b) (1) (B)), they became effective on the day on which the bill was signed by the President, namely, 24 October 1986. See United States v. Meyers, 847 F.2d 1408, 1414-16 (9th Cir. 1988). Since Browning's indictment covered acts committed between November 1986 and June 1987, the use of these sections in sentencing Browning was not an ex post facto application.

2. Life imprisonment without parole.

Browning argues that the sentence he received under Sec. 848(b), life in prison without possibility of parole, violated the fifth and eighth amendments to the United States Constitution. He does not argue that a sentence of life imprisonment without possibility of parole, as punishment for conducting a continuing criminal enterprise, is inherently unconstitutional. See United States v. Stewart, 820 F.2d 1107, 1108 (9th Cir.) (upholding such sentence), cert. denied, 484 U.S. 867 (1987); United States v. Valenzuela, 646 F.2d 352, 354 (9th Cir. 1980) (same). He claims, instead, that the mandatory nature of the penalty under Sec. 848(b) deprived him of his right to individualized punishment, and constituted cruel and unusual punishment. However, Browning may challenge the constitutionality of a statutory sentence only as it was applied in his particular case. United States v. Zavala-Serra, 853 F.2d 1512, 1517 (9th Cir. 1988). The record shows that the mandatory nature of Sec. 848(b) was not determinative. At sentencing, the district court clearly indicated that it considered life imprisonment without parole to be the appropriate sentence, given the facts peculiar to Browning and his crime. Because the court would have imposed the same sentence even if it had not been required, the mandatory aspect of Sec. 848(b) did not affect Browning's penalty. Thus, Browning lacks standing to challenge the constitutionality of that provision's mandatory sentence. See Zavala-Serra, 853 F.2d at 1516-18 (denying standing to defendant who challenged sentencing statute because allegedly unconstitutional aspect of statute did not apply to defendant).

AFFIRMED.