FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. NO. 5:13-CR-40060-DDC-10)
S. Schmidt (Tyler J. Emerson with her on the briefs), Conlee
Schmidt & Emerson, LLP, Wichita, Kansas, for Appellant.
A. Brown, Assistant United States Attorney (Thomas E. Beall,
United States Attorney, with him on the brief), Office of the
United States Attorney, Topeka, Kansas, for Appellee.
TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit Judges.
TYMKOVICH, Chief Judge.
appeal arose from a law enforcement investigation into a
drug-trafficking operation in the Geary County, Kansas area.
Agents gathered evidence by making controlled buys of crack
cocaine through a confidential informant; monitoring
telephones used by certain of the co-conspirators, including
Anthony Carlyle Thompson; and conducting searches of several
residences, including Thompson's. Thompson was arrested
and charged with one count of conspiracy to distribute more
than 280 grams of cocaine base, in violation of 21 U.S.C.
§§ 846 and 841(a), and multiple counts of
distribution of cocaine base, in violation of 21 U.S.C.
trial, Thompson moved to dismiss the indictment for Speedy
Trial Act violations. The district court overruled the
motion, finding the court had properly granted an
ends-of-justice continuance that tolled the speedy-trial
clock. Also before trial, the district court admitted
cell-service location information (CSLI) the government
obtained without a warrant as part of the process for
determining whether certain intercepted phone calls were
admissible at trial. In addition, the court denied
Thompson's motion to suppress evidence obtained from a
search of his residence, finding the search warrant was
supported by probable cause.
was tried along with several co-defendants, including Johnny
Lee Ivory, Martye Madkins, and Albert Dewayne Banks, who are
appellants in related appeals. Thompson and his co-defendants
were convicted on all counts. Using an extrapolation method
of calculation, the presentence investigation report (PSR)
attributed 8.477 kilograms of cocaine base to Thompson. The
PSR then imposed a four-level leadership sentencing
enhancement, which yielded a total offense level of 40, a
criminal history category of IV, and a corresponding
guidelines range of 360 months to life in prison. Thompson
objected to both the drug-quantity calculation and the
imposition of the leadership enhancement. At sentencing, the
court rejected Thompson's objections, finding he was
responsible for 8.477 kilograms of cocaine base and applying
the four-level leadership enhancement. The court then
sentenced Thompson to 360 months' imprisonment.
now appeals his convictions and sentence, incorporating by
reference some of the arguments made by his co-defendants
Madkins, Banks, and Ivory in their related
appeals. In particular, Thompson contends the
district court erred in (1) denying his motion to dismiss for
Speedy Trial Act violations; (2) admitting CSLI obtained
without a warrant; (3) denying his motion to suppress
evidence obtained from the search of his residence; and (4)
delivering a constitutionally deficient reasonable doubt
instruction to the jury. Thompson also appeals his sentence,
arguing the district court erred in (1) relying on an
extrapolation method to calculate the drug quantity
attributable to him as relevant conduct; and (2) imposing the
four-level leader-organizer enhancement, because the evidence
did not establish he served as a leader or organizer in the
reasons below, we affirm the district court in full, finding
no error in the court's various rulings or in the
sentence it imposed.
address Thompson's challenges to his convictions and
sentence in turn.
Speedy Trial Action Violations
first argues the district court violated his right to a
speedy trial. Pursuant to Federal Rule of Appellate Procedure
28(j), Thompson joins in and adopts by reference the Speedy
Trial Act arguments made by his co-defendant Madkins.
United States v. Madkins, No. 15-3299 (10th Cir.
2017), we explain the relevant factual background, which is
materially indistinguishable for purposes of Thompson's
appeal. Pertinently, Thompson filed a motion to dismiss for
Speedy Trial Act violations. It is the district court's
denial of that motion that Thompson now appeals.
Madkins, we hold that the district court complied
with the requirements of the Speedy Trial Act in granting an
ends-of-justice continuance, because the record contains
sufficient ends-of-justice findings. For the same reasons, we
conclude the district court did not violate Thompson's
right to a speedy trial. We therefore affirm Thompson's
Admission of CSLI
next argues the district court erred in granting the
government's application for historical cell-service
location information (CSLI) and in admitting that CSLI at a
pretrial evidentiary hearing. The Stored Communications Act
(SCA), 18 U.S.C. § 2703(d), allows the government to
obtain a court order for disclosure of CSLI if it makes a
showing of reasonable suspicion. Thompson contends §
2703(d) is unconstitutional, because cell-phone users have a
reasonable expectation of privacy in their historical CSLI.
And because collecting CSLI constitutes a search, Thompson
argues, the Fourth Amendment requires the government to
procure a warrant before obtaining a cellphone user's
first explain the relevant background facts and then evaluate
Thompson's constitutional arguments. Before trial, the
parties engaged in extensive litigation over the
admissibility of recorded telephone calls the government had
intercepted pursuant to wiretap orders entered by Judge David
R. Platt, a state court judge sitting in the Eighth Judicial
District of Kansas. Judge Platt had issued wiretap orders for
target phones used by Thompson, Banks, and Ivory. Based in
part on information derived from intercepts conducted
pursuant to the wiretap orders, law enforcement applied for
search warrants of various locations and residences,
including Thompson's residence. When law enforcement
carried out the search of Thompson's residence, officers
seized cell phones, cash, miscellaneous documents, drug
paraphernalia, and credit cards.
filed a motion to suppress the intercepted calls, arguing law
enforcement had intercepted his communications outside the
territorial jurisdiction of the Eighth Judicial District.
Co-defendant Ivory joined the motion. Following a hearing,
the federal district court ruled that Kansas law required
suppression of evidence about any calls made from a phone
that was physically located outside the boundaries of the
Eighth Judicial District, since Judge Platt's
jurisdiction only extended that far. The court therefore
concluded the government could introduce evidence about the
wiretapped calls only if it could show that the tapped phones
were physically located within the Eighth Judicial District
at the time the calls were intercepted. The court postponed
its rulings on Thompson's motion to suppress pending the
government's coming forth with evidence showing the
physical locations of the phones.
government filed an application for orders pursuant to §
2703(d) of the SCA, asking the court to require the
electronic service providers for the target phones-those used
by Thompson, Banks, and Ivory-to disclose historical CSLI
relating to those phones. Section 2703(d) does not require
the government to show probable cause to obtain a court
order; rather, the government must simply show there are
reasonable grounds to believe the material is relevant to an
ongoing criminal investigation. Thompson filed a response in
opposition to the government's application, arguing
§ 2703(d) is unconstitutional, because a cellphone
user's location is constitutionally protected by the
Fourth Amendment. Banks and Ivory joined the motion.
district court granted the government's application. The
court concluded that a cell-phone user has no reasonable
expectation of privacy in his CSLI, because CSLI records are
business records that fall within the Fourth Amendment's
third-party doctrine. Alternatively, the court ruled that
even if the Fourth Amendment did apply to CSLI, the
government had shown probable cause to support the issuance
of the search warrants.
obtaining the CSLI, the government sought to establish the
location of the intercepted phone calls by showing that a
call had "pinged" certain cell towers in and around
the Junction City area within the Eighth Judicial District.
At a pretrial evidentiary hearing, the government presented
the CSLI and testimony from two experts who agreed that if
the CSLI showed a phone connected to one of the Junction City
towers, then it was highly likely the phone was physically
located in the Eighth Judicial District. The district court
found that this evidence-along with other circumstances,
including the fact that many of the defendants'
residences and meeting places were located in and around
Junction City-established by a preponderance of the evidence
that a phone was physically located in the Eighth Judicial
District if it had pinged one of the Junction City towers.
Accordingly, the court ruled that if a call had pinged one of
those towers, it was admissible. Calls that had not pinged
the towers, however, were suppressed.
the court's ruling, Thompson, Banks, and Ivory filed a
second round of suppression motions, seeking to suppress
evidence they claimed was obtained derivatively of the
suppressed calls and arguing, among other things, that
insufficient probable cause remained to support the search
warrants once the suppressed calls were excised from the
affidavits supporting the warrants. The district court denied
the motions. The court found that, even excluding the
suppressed calls, the affidavits established probable cause
to support issuing the warrants. At trial, the government
introduced calls that had pinged on three towers in or
immediately surrounding Junction City, along with some of the
evidence found during the searches of Banks's and
Ivory's residences. The government did not present any
evidence found during the search of Thompson's residence.
Thompson now appeals the district court's rulings.
provides two different routes for the government to obtain
historical CSLI. The government may (1) "obtain a
warrant using the procedures described in the Federal Rules
of Criminal Procedure"; or (2) "obtain a court
order for such disclosure under subsection (d)." 18
U.S.C. § 2703(c)(1). Subsection 2703(d) provides that
such a court order "shall issue only if the governmental
entity offers specific and articulable facts showing that
there are reasonable grounds to believe that the contents of
a wire or electronic communication, or the ...