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United States v. Thompson

United States Court of Appeals, Tenth Circuit

August 8, 2017



          Kari S. Schmidt (Tyler J. Emerson with her on the briefs), Conlee Schmidt & Emerson, LLP, Wichita, Kansas, for Appellant.

          James 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.

          Before TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit Judges.

          TYMKOVICH, Chief Judge.

         I. Introduction

         This 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. § 841(a)(1).

         Before 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.

         Thompson 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.

         Thompson 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.[1] 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 conspiracy.

         For 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.

         II. Analysis

         We address Thompson's challenges to his convictions and sentence in turn.

         A. Speedy Trial Action Violations

         Thompson 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.

         In 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.

         In 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 convictions.

         B. Admission of CSLI

         Thompson 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 historical CSLI.

         We 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.

         Thompson 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.

         The 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.

         The 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.

         After 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.

         After 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.

         The SCA 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 ...

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