Argued May 29, 2013
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Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:10-cr-00003-SEB-KPF -- Sarah Evans Barker, Judge.
For United States of America, Plaintiff - Appellee (11-2267, 11-2288, 11-2535, 11-2687): Bradley A. Blackington, Attorney, Office of The United States Attorney, Indianapolis, IN.
For Kenneth Jones, Defendant - Appellant (11-2267): Victoria Ursulskis, Attorney, Indianapolis, IN.
For Ramone Mockabee, also known as: MONE, also known as: SHORTY, also known as: RAYMONE MOCKABEE, Defendant - Appellant (11-2288): William H. Dazey Jr., Attorney, Indiana Federal Community Defenders, Inc., Indianapolis, IN.
For Devon Young, Defendant - Appellant (11-2535): Brian P. Mullins, Attorney, Milwaukee, WI.
For Elisha Drake, also known as: KELLY, also known as: KILLER KEL, Defendant - Appellant (11-2687): Harold S. Ansell III, Attorney, Indianapolis, IN.
Before WOOD, Chief Judge, and BAUER and TINDER, Circuit Judges.
Tinder, Circuit Judge.
Beginning in August of 2009, the Indianapolis Metropolitan Police Department (IMPD) and the FBI conducted a coordinated investigation of a suspected cocaine-distribution organization operating in the Indianapolis area. The two law enforcement agencies employed a variety of investigative techniques, including interviews of confidential informants and suspects, surveillance, staged or controlled drug purchases, and consensual (on one side) recording of telephone conversations. In addition, the investigation utilized court-authorized pen registers of telephone traffic, wiretaps of telephone conversations, and interdiction stops of selected individuals, which were often initiated on the basis of information gleaned from those wiretaps.
This coordinated law enforcement operation continued until January 20, 2010, when a series of searches and arrests were effectuated. A federal grand jury in the Southern District of Indiana then issued an indictment (and subsequently, a superseding indictment) that leveled charges related to the distribution of drugs against twenty defendants, including the appellants in this case, Ramone Mockabee, Kenneth Jones, Elisha Drake, and Devon Young. Jones, Drake, and Young contested the charges against them at a jury trial, but were all convicted. Mockabee pleaded guilty.
We will discuss the particulars of the counts of conviction and the penalties imposed later. For now, we note that all appellants individually raise a variety of pretrial, trial, and sentencing issues, and we have consolidated their appeals. Ultimately, we affirm the convictions that
Jones, Drake, and Young now appeal, but we vacate the sentences of Mockabee, Jones, and Drake, and remand their cases for resentencing. Before we tackle the multitude of separate issues raised by each appellant, however, we will first discuss the evidence and procedures common to all of them, and then discuss specific facts relating to each one in turn.
I. Background on the Evidence
In this cocaine-distribution organization, appellant Mockabee was the central figure. Mockabee obtained his supply of powder cocaine from Dominic Robinson and Damon Luter. After obtaining powder cocaine, Mockabee stored it at a house located at 781 West 25th Street in Indianapolis, which was his center of operation. There he would also cook some of the powder into crack cocaine. Mockabee's distribution method functioned through a regular routine as follows. His customers would telephone him, and through the use of coded language--asking questions such as, " Are you down the way?" --they would express their interest in acquiring cocaine. If the inquiry met with a favorable response, the customer would travel to the 25th Street residence and knock on the back door. Upon hearing a knock, Mockabee would admit only one person at a time, even if several were lined up outside the residence waiting to enter.
Once inside the 25th Street residence, customers would either be allowed to go up to the kitchen and deal with Mockabee, or they would go downstairs to deal with a separate supplier named Diomoni Small. One customer, Seron Poole, testified at trial that once or twice a week, he had purchased one to two ounces in this manner from Mockabee beginning in the fall of 2008 and lasting until the summer of 2009. Another customer, Devon Hudgins, testified that he had purchased between one-eighth and three-eighths ounces of crack from Mockabee two or three times a month from the summer of 2009 until December of that year.
Utilizing court-authorized wiretaps, the coordinated FBI-IMPD investigation monitored four target cell phones from late November 2009 through January of the following year. No. 11-2267 App. Dkt. 78-1, 20-27. The case agent in charge of the wiretap investigation was IMPD Detective Ryan Clark, who was a member of the FBI Safe Streets Task Force. At the joint trial of Jones, Drake, and Young, Detective Clark testified that the principal users of these four target phones were Mockabee, Small, Lonnie Belmar (another supplier operating from a residence nearby at 736 West 25th Street), and Robinson. No. 11-2267 App. Dkt. 78-1, 20-27.
The wiretapping of these four target phones resulted in the interception of over 10,000 telephone conversations. At trial, the government played recordings and provided written transcripts of several intercepted phone calls in an attempt to link the appellants to the cocaine-distribution organization. But because the participants in these intercepted phone conversations did not " use words like 'cocaine,' 'crack cocaine,' or 'powder cocaine,'" Detective Clark provided opinion testimony about the meaning of the words actually used. Clark asserted that participants in these conversations were speaking in a " coded language" in an attempt to hide their cocaine-distribution activities. No. 11-2267 App. Dkt. 78-2, 97. Hudgins similarly testified that the speakers in phone
conversations avoided using words like " crack cocaine" and " crack" because if someone was listening, " then they'd know what we was talking about." Trial Tr. vol. 1, 95-96, Jan. 10, 2011. In addition to the wiretapped phone calls and Clark's supporting testimony, the government presented testimony from individuals who had been involved in the conspiracy as well as testimony from other law enforcement officials. We turn to an examination of the evidence relevant to each of the three individual appellants--Drake, Young, and Jones--who went to trial.
A. Evidence Relevant to Drake
The first overheard conversation introduced at trial against Drake began on November 27, 2009, when Drake asked Mockabee if she could " holler at" him. Detective Clark testified that, based on his training and experience, Drake was asking Mockabee if she could purchase crack cocaine from him. No. 11-2267 Dkt. 78-2, 121-22. A few weeks later, on December 14, Drake asked Mockabee if she could " slide through." Mockabee responded by asking her an unusual question: " Is it the same address?" Drake replied that it was. Clark told the jury that " same address" was a coded term meaning the same amount of cocaine Drake had acquired during her last purchase. Because Drake had previously ordered " one," Clark believed that Drake was asking Mockabee if she could come to the 781 West 25th Street residence so she could purchase one ounce of crack cocaine.
On the witness stand, Clark soundly rebutted any suggestion that " same address" referred to an actual street address, noting, " Ms. Drake is driving to Mr. Mockabee. He's stationary at a location. He wouldn't ask the address of where he already was." Id. at 171-72. Drake and Mockabee spoke again that day, approximately six hours later. In that conversation, Drake requested permission to " fly through real quick," to which Mockabee responded by asking whether she wanted the " same address." Clark again explained that he understood " same address" to mean the same amount of cocaine as before. No. 11-2267 App. Dkt. 78-3, 5-6. Clark's interpretation was consistent with Hudgins's testimony that " address" was a common code word Mockabee used, and when Mockabee asked for the address, he was asking how much crack Hudgins wanted.
Drake and Mockabee were overheard talking again the next day, with Drake inquiring whether he was " ready." Mockabee responded that he was " shut down." Although he was " putting his apron on the last stuff," he presently " had nothing but cataracts," and it would " probably be tomorrow." Detective Clark interpreted Mockabee's remarks to mean that " [Mockabee] had already sold the last of" his cocaine, he presently had nothing but marijuana, and it would probably be tomorrow before he had cooked more crack to sell. No. 11-2267 App. Dkt. 78-3, 5-6. This testimony was supported by Hudgins's testimony that when he called Mockabee on the phone he would say something like " are you ready for me," or " are you down the way," which meant that he wanted to obtain some crack cocaine. Trial Tr. vol. 1 96, Jan. 10, 2011. Hudgins also testified that when Mockabee told him, " I'm shut down," Hudgins understood him to mean that he had no crack cocaine. Id. at 109. Finally, Hudgins testified that when Mockabee said he was " putting my apron on" Mockabee meant that he was cooking cocaine into crack. Trial. Tr vol. 1, 98.
Six days later, on December 21, Drake called Mockabee, asking, " Still nothin'?" to which he responded, " I ain't called you yet." Clark interpreted this conversation
as an inquiry about the availability of cocaine with a negative response. Then five days later, Drake was overheard asking Mockabee if he was " still out." Mockabee responded, " [I]t'll probably have to be tomorrow.... I have to put that shit together." Clark concluded that " shit" referred to cocaine, and that Mockabee needed to get more cocaine to distribute to Drake. No. 1-2267 App. Dkt. 78-3, 22-23.
Mockabee and Drake continued to have similar conversations over the course of the next two weeks. On December 28, 2009, Mockabee told Drake, " Ain't nuttin' yet. I ain't called you yet, Kelly," --Kelly was a nickname of Drake's--which Clark interpreted to mean that Mockabee " still ha[d]n't obtained any cocaine." Id. at 23-24. On December 31, Drake again asked Mockabee if she could " slide through." Id. at 28. On January 4, 2010, Drake asked Mockabee if she could " holla" at him, which Clark interpreted to mean " come and make a purchase of crack cocaine from Mockabee." Id. at 39. A little over an hour later, Drake asked Mockabee if he was " ready," and he responded affirmatively. Clark's take on that conversation was that " ready" meant " ready to make a sale of crack cocaine" to Drake. Id. at 40. Hudgins similarly testified that when Mockabee said that he was " ready to take care of something" it meant that he " still wasn't ready, ... he still had to cook" the crack cocaine. Trial Tr. vol. 1, 112, Jan. 10, 2011. This conversation between Drake and Mockabee followed Mockabee's receipt of a kilogram of cocaine from Damon Luter by about four hours.
Finally, on January 9, 2010--in what may have been a pivotal conversation with respect to the government's theory that Drake was a member of the Mockabee cocaine-distribution conspiracy--Mockabee told Drake, " [Y]ou doin' some, uh ... slippin' in your pimpin'. You need to be careful, man, what you doin.'" Detective Clark explained that in this remark, Mockabee was " cautioning Ms. Drake on how she's handling her [drug trafficking] business transactions." Drake responded to Mockabee's comment by denying that she had been " trippin' on shit," and by assuring Mockabee that he could " talk about my business, but you about the only one that can ... my business is your business ... just like yours is mine." No. 11-2267 App. Dkt. 78-3, 53.
In addition to Drake's conversations with Mockabee, Clark and his team overheard Drake's conversations with other involved parties via wiretap. For example, on November 8, 2009, they overheard Drake asking Lonnie Belmar if she could come " holler at" him. When Belmar gave an affirmative response, Drake then told Belmar, " I'm 'bout to go holler at her real quick and I'll be back to holler at you." Clark testified that this statement meant Drake had to meet with one of her cocaine customers before she could meet with Belmar to purchase cocaine. No. 11-2267 Dkt. 78-2, 122-23.
Drake was also intercepted during a December 12, 2009, phone conversation with Belmar, in which she mentioned law enforcement activity in the neighborhood. She told Belmar that the police " got a nigga stretched out in the alley" near the house from which Belmar distributed crack cocaine. She also said, " [Y]ou all make sure you be careful when you all head to the hood." Clark described this conversation as a warning to Belmar about police activity near his crack distribution location. Drake had apparently been in the neighborhood to witness the law enforcement activity because she " had one of [her] stings call ... want[ing] some." Clark told the jury that " sting" referred to a cocaine customer, and " some" meant cocaine. In this conversation, Drake further
remarked to Belmar that although she " didn't have shit on [her]," she had " seen all that" and " was like shit, I'm gettin' the fuck away from here." Belmar responded by asking if Drake had called " Mone." Clark explained that " Mone" referred to the defendant Ramone Mockabee. No. 11-2267 Dkt. 78-2, 153.
B. Evidence Relevant to Young
The government also presented wiretapped conversations involving appellant Young. Specifically, it presented intercepted conversations between Young and Belmar as well as between Young and Mockabee. Of all the conversations replayed at trial for use against Young, perhaps the most damaging conversation involved Belmar.
Before the prosecution played a recording of the telephone conversation between Young and Belmar from December 8, 2009, Detective Clark first provided some background about the process of turning powder cocaine into crack cocaine, noting, " Powder cocaine is taken and mixed with a certain amount of cutting agent, usually baking soda. Water's added to that. It's boiled. In the boiling process, the oils and the moisture in the cocaine evaporate, and you're left with a hard, solid substance, which is crack cocaine." No. 11-2267 Dkt. 78-2, 143-44. The prosecution then played the December 8th conversation, in which Young was overheard telling Belmar, " My person has some software, it won't get hard when you cook it." Belmar responded by advising Young to " melt it down," " pour the water off," " throw [baking] soda on it," and " keep stirring it up." Young later told Mockabee that the person with the software " owe[d]" him. Detective Clark testified that the " person" with the troublesome " software" discussed in this conversation was likely one of Young's customers. Clark further suggested that this particular customer was in a " fronting" relationship with Young, such that Young had given cocaine to this customer " on consignment," and the customer now owed Young money " on the back end." No. 11-2267 Dkt. 78-2, 144-48.
Young's wiretapped conversations with Mockabee certainly did not help his case either. For example, the prosecution played a recording of a January 7, 2010 conversation, in which Young was overheard telling Mockabee that he " was trying to come up this way," and Mockabee responded, " It'd be a couple hours." No. 11-2267 Dkt. 78-3, 42. Detective Clark interpreted this conversation to mean that Young wanted to purchase cocaine from Mockabee, but Mockabee was not presently available. In subsequent conversations that day, Young continued to ask Mockabee if he was " ready."
Once Mockabee responded affirmatively in a conversation on January 8 (by saying, " I'll be there in ten minutes" ), Young told Mockabee that he " probably needed the same thing." Clark interpreted this statement to mean that Young needed the " same amount of cocaine that he had previously obtained from Mr. Mockabee." Id. at 44. Based on this interpretation of the January 8 conversation, law enforcement believed that a drug transaction between Mockabee and Young was imminent at the 781 West 25th Street residence. As a result, law enforcement officers stopped Young's vehicle after it left the residence that day. Finding Young and his associate, Gary Davis, in the car, police recovered 41.9 grams of powder cocaine from Davis's crotch area.
At trial, three witnesses--Gary Davis, Ernest French, and Brooke Taggart--all testified that Young was more than just a mere buyer of cocaine; rather, he was actively engaged in the sale of cocaine to others. Davis, an Indianapolis native who
had been using illegal drugs since age twenty, spent the three years between 2005 and 2008 in Kentucky getting clean and sober. Upon moving back to Indianapolis, Davis promptly became reacquainted with two of his old friends: Young and crack cocaine. No. 11-2267 App. Dkt. 78-2, 30-39. Davis's rekindled friendships soon convinced him to begin working for Young; Young, in turn, would compensate Davis in crack cocaine. According to Davis's testimony, this arrangement began after Young approached him in October 2008 and asked Davis to accompany him to Columbus, Indiana. Davis agreed to ride with Young, and thus began Young's and Davis's weekly trips to Columbus, which continued until their interdiction stop on January 8, 2010.
On these weekly trips, Young would hand Davis an amount of crack cocaine (typically one ounce) for Davis to hide in his underwear in order to avoid detection by law enforcement. Next, the two men would drive to either an apartment or a parking lot in Columbus. Davis would then hand the crack cocaine back to Young upon arrival, and Young would deliver the crack to his customers and collect payment. These customers, according to Davis, included both Ernest French and Brooke Taggart. No. 11-2267 App. Dkt. 78-2, 39-47.
French, like Davis, also testified at trial for the prosecution. French indicated that from the spring of 2008 until January 2010, he purchased crack cocaine from Young during his trips to Columbus. With the exception of one ninety-day break, French bought one to two ounces of crack cocaine every week during this two-year period. On some occasions, Young advanced (that is, fronted) the cocaine to French without payment. French corroborated that Davis was with Young for some of the trips but indicated that another person rode along instead of Davis on some occasions. No. 11-2267 App. Dkt. 78-3, 148-51.
In Taggart's testimony for the prosecution, she too corroborated that Young made regular trips to Columbus with someone else in order to sell crack cocaine (although Taggart could only identify the person accompanying Young on these trips as " Fats" ). Taggart began transacting with Young in June 2010 as a matter of convenience; since Young came to her in Columbus, she no longer had to drive to Indianapolis to obtain crack cocaine. Taggart testified that she typically purchased a quarter-ounce to a half-ounce of crack cocaine from Young twice per week using cash; she then resold the crack cocaine to someone else. No. 11-2267 App. Dkt. 78-2, 78-81.
C. Evidence Relevant to Jones
The wiretap of Mockabee's phone also provided damaging evidence against appellant Jones. Specifically, this wiretap revealed six transactions in which Mockabee sold distribution quantities of crack cocaine to Jones. In the telephone conversations replayed at trial, Jones was overheard on November 25, 2009, telling Mockabee, " I was trying to see what the address was," and later in the conversation, asking Mockabee for " one." Once again, Detective Clark and Devon Hudgins interpreted these statements to signify that Jones had been trying to determine the amount of crack cocaine that his customer wanted, and eventually decided that he required one ounce of cocaine from Mockabee.
Similarly, Jones was overheard on November 27, 2009, telling Mockabee, " I'm going to slide down there in a minute," and " It's all the same." Detective Clark interpreted these statements to mean that Jones intended to purchase the same one-ounce quantity of cocaine from Mockabee
that he had purchased only two days before. No. 11-2267 App. Dkt. 78-2, 118-20.
On December 2, 2009, Jones and Mockabee spoke again. In this conversation, Mockabee told Jones, " I got [to] fill that up for you man," and " I had just got through taking the apron off." Jones responded that he had " jumped up" and needed Mockabee to " give [him] the sing and a half." Detective Clark believed that Jones was conveying to Mockabee that he wanted more cocaine than he had in his previous orders--one and a half ounces. At the same time, Mockabee was conveying to Jones that he was " getting the order together of crack cocaine" by " cooking" powder cocaine. No. 11-2267 App. Dkt. 78-2, 132-33.
The next conversation between Mockabee and Jones introduced into evidence at trial came from five days later, on December 7, 2009, during which Mockabee asked Jones, " What's the address?" and Jones responded, " Same." Like all of the other address conversations, Detective Clark believed that Mockabee's inquiry was about the amount of cocaine desired. Jones's response, according to Clark, signified that he desired one ounce of crack cocaine. Id. at 141-42. Another conversation from December 11 was then played at trial, in which Mockabee again asked Jones for " the address," and Jones responded " two" plus " some chez." Clark testified that here, Jones was ordering two ounces of crack cocaine plus some marijuana from Mockabee. Id. at 149-50. The final conversation between Mockabee and Jones played at trial came from January 4, 2010, when Mockabee advised Jones that he was " back up running." Clark believed this call signified that Mockabee " had obtained cocaine and was ready to sell" it to Jones. No. 11-2267 App. Dkt. 78-3, 38-39.
In addition to these six wiretapped telephone conversations, the government introduced some physical evidence against Jones, most of which came from a house at 2713 Eagledale Drive in Indianapolis. Jones's phone calls to Mockabee were critical in linking Jones with the Eagledale address. In all of his conversations with Mockabee, Jones had used a cell phone with the number 317-333-4974. After hearing the six conversations between Jones and Mockabee in which the two men appeared to discuss cocaine transactions, Detective Clark obtained a court order allowing his IMPD/FBI team to use GPS technology to locate this cell phone. Clark's law enforcement team used the court order twice to locate the cell phone: first, on January 11, 2010, at 5:38 am, and second, on January 15, 2010, at 7:01 am. The team specifically chose these two particular times to locate the cell phone associated with Jones because " early morning hours are the time that an individual's most likely to be in their true residence, that most people sleep." Both times, the cell phone associated with Jones was traced to the 2713 Eagledale Drive address. No. 11-2267 App. Dkt. 78-6, 90-91. Moreover, on those same days, law enforcement observed a car registered to Jones parked in close proximity to the Eagledale address during the early morning hours.
Based on these car sightings, the intercepted calls, and the two supporting GPS locations of the cell phone used by Jones, the IMPD/FBI team obtained a search warrant for the Eagledale Drive address. Law enforcement executed the search warrant
during the early morning hours of January 20, 2010. Gov't Appx. 3, 78.
While executing the search warrant, law enforcement discovered Jones inside the house at 2713 Eagledale Drive and arrested him there. In addition, law enforcement found a variety of incriminating items throughout the house, including (1) several pieces of crack cocaine on a towel, amounting to 36.6 grams, located on the kitchen countertop behind a marijuana plant; (2) 7.8 grams of crack cocaine in a Pyrex measuring cup, located on the kitchen counter next to a digital scale with suspected (but apparently untested) cocaine residue; (3) 1.3 grams of crack cocaine, also located on the kitchen counter next to some money and a couple of cell phones; (4) 47.6 grams of crack cocaine contained within a Pyrex mixing bowl and covered with rags, located by an entertainment center in the living room; (5) a loaded .22 caliber Ruger pistol, located behind the entertainment center in the living room; (6) 6.8 grams of crack cocaine, located next to suspected (but apparently untested) marijuana on a mattress in the middle of the living room floor; (7) a MAK-90 semi-automatic assault rifle, located on the floor of the master bedroom with " clothing and items of personal belongings scattered near and on or about it" ; (8) a .22 caliber Ruger rifle, also located on the floor of the master bedroom but obscured from view because it was underneath some clothes; (9) a digital scale containing cocaine residue, located inside a shoebox in the second bedroom; (10) another digital scale, located inside a clear plastic tub (that also contained many other items) in the second bedroom; (11) the cell phone that Jones had used to call Mockabee (corresponding to telephone number 317-333-4974); and (12) a substantial stack of cash. No. 11-2267 App. Dkt. 78-6, 32-77. With all this evidence in mind, we turn now to Jones's particular claims of error with respect to the pretrial rulings. (Neither Drake nor Young alleges error with respect to pretrial motions).
II. Pretrial Error Claims: Jones's Motion to Suppress
Before trial, Jones moved to suppress the evidence seized during the search of the residence at 2713 Eagledale Drive. The focus of his motion was whether Detective Clark's affidavit supporting the search warrant provided sufficient information to link Jones to the Eagledale. Without that link to him and his wiretapped drug conversations, Jones argues, the police had no basis to search the house. The affidavit claimed that 2713 Eagledale Drive was Jones's " residence" ; the only support for this claim presented in the affidavit were the two early-morning GPS locations of Jones's cell phone and two early-morning sightings of Jones's car at that location. When reviewing the denial of a motion to suppress, ...