Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cr-00214-WYD

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Case 1:01-cr-00214-WYD 423 F.3d 1164 423 F.3d 1164 (Cite as: 423 F.3d 1164)

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Briefs and Other Related Documents U.S. v. SmallC.A.10 (Colo.),2005. United States Court of Appeals,Tenth Circuit. UNITED STATES of America, PlaintiffAppellee, v. Willie James SMALL, Alvin Green, a/k/a Mel Dog, Theolian Lloyd, Sammy Lee Woods, George Melvin Murray, Tommy Jones, Dwayne Van Dyke, Dawan Eugene Smith, Defendants-Appellants. Nos. 04-1188, 04-1157, 04-1148, 04-1168, 04-1161, 03-1513, 04-1201, 04-1503. Sept. 15, 2005. Background: Defendants were convicted in the United States District Court for the District of Colorado, Wiley Daniel, J., of drug offenses arising out of crack cocaine distribution conspiracy, and they appealed. Holdings: The Court of Appeals Murphy, Circuit Judge, held that: (1) alleged misstatements in wiretap affidavit did not taint issuing judge's finding that wiretap was necessary; (2) potential juror's statements during voir dire about his concerns over his personal safety did not require a mistrial or a new venire; (3) district court did not violate due process by failing to question jury regarding defense counsel's conversation about a gun that one of the jurors overheard during a lunch break; (4) defendant was not prejudiced by district court's denial of his motion for a severance; (5) evidence was sufficient to establish that defendant was part of charged conspiracy;

(6) evidence was sufficient to support conviction for using a telephone to facilitate a drug felony; (7) non-constitutional Booker error in applying Sentencing Guidelines in a mandatory fashion did not affect defendant's substantial rights; but (8) constitutional Booker error occurring when district court sentenced defendant on basis of drug quantity it found at sentencing affected defendant's substantial rights and thus was not harmless. Affirmed; remanded for resentencing. West Headnotes [1] Telecommunications 372 1479 372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers 372k1479 k. Review of Proceedings; Standing. Most Cited Cases Court of Appeals reviews alleged misrepresentations and omissions in a wiretap application under the standard requiring defendant to show that any misstatements were made knowingly, intentionally, or recklessly, and that the erroneous information was material to the district court's finding of necessity. 18 U.S.C.A. § 2518. [2] Telecommunications 372 1479

372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers 372k1479 k. Review of Proceedings; Standing. Most Cited Cases

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Case 1164 423 F.3d 1:01-cr-00214-WYD 423 F.3d 1164 (Cite as: 423 F.3d 1164)

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Defendant bears the burden of overcoming the presumption that the district court's wiretap authorization was proper. 18 U.S.C.A. § 2518. [3] Telecommunications 372 1468

was necessary; although defendant had purchased the car used and on credit for significantly less than that amount, given age of car, any reasonable reader would have assumed that it was no longer worth its original purchase price. 18 U.S.C.A. § 2518. [5] Telecommunications 372 1468

372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers 372k1464 Application or Affidavit 372k1468 k. Necessity; Inadequacy of Other Procedures. Most Cited Cases Incorrect statement in wiretap affidavit indicating that defendant earned $18,000 per week selling crack cocaine, based on taped conversation between defendant and confidential informant, was not intentional or reckless misstatement that tainted issuing judge's finding that wiretap was necessary; although tape was unclear and defendant actually said he could make $7,000 if he could sell 18 ounces of crack cocaine per week, applicant had verified the contents of the conversation with the confidential informant prior to including the information in the affidavit. 18 U.S.C.A. § 2518. [4] Telecommunications 372 1468

372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers 372k1464 Application or Affidavit 372k1468 k. Necessity; Inadequacy of Other Procedures. Most Cited Cases Statement in wiretap affidavit indicating that defendant's car had an original purchase price of $93,500 was not misleading, so as to taint issuing judge's finding that wiretap

372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers 372k1464 Application or Affidavit 372k1468 k. Necessity; Inadequacy of Other Procedures. Most Cited Cases FBI agent's statement to court in connection with wiretap application, indicating that at least one confidential informant had been moved out of state, was not deceptive or misleading, so as to taint issuing judge's finding that wiretap was necessary, although informant had been moved out of state for reasons unrelated to defendant's case; wiretap affidavit clearly stated that the informant was moved because her identity had been disclosed in a separate case, and nothing in agent's statements to court contradicted the affidavit or implied that defendant had actually threatened the informant. 18 U.S.C.A. § 2518. [6] Telecommunications 372 1468

372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers 372k1464 Application or Affidavit 372k1468 k. Necessity; Inadequacy of Other Procedures. Most Cited Cases Wiretap affidavit did not exaggerate diffi-

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culty of introducing an undercover agent or a second informant into defendant's drug organization, so as to undermine government's showing of necessity by falsely implying that traditional investigative techniques would have been ineffective; affidavit indicated that existing informant was unable to describe full scope of the organization or provide investigators with any knowledge of organization's suppliers, and that defendant was reluctant to engage in drug transactions with people he did not know. 18 U.S.C.A. § 2518. [7] Telecommunications 372 1467(2)

lance of the area outside defendant's home and names of individuals identified through use of pen register and trap-and-trace devices, did not undermine district court's finding of necessity, where defendant failed to identify any evidence obtained or potentially obtainable from those investigative techniques that would have obviated the need for a wiretap. 18 U.S.C.A. § 2518. [9] Telecommunications 372 1465

372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers 372k1464 Application or Affidavit 372k1467 Competency of Information; Hearsay 372k1467(2) k. Information from Others in General. Most Cited Cases Government is not required to attempt to introduce other agents or informants in a case in which it seeks wiretap where this technique is unlikely to produce any additional evidence. 18 U.S.C.A. § 2518. [8] Telecommunications 372 1468

372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers 372k1464 Application or Affidavit 372k1465 k. In General. Most Cited Cases Government complied with wiretap statute's oath or affirmation requirement by submitting a sworn final version of wiretap application to the court on day of hearing on the application, although government also submitted an unsworn courtesy copy to the court on the day before hearing. 18 U.S.C.A. § 2518(1). [10] Telecommunications 372 1470

372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers 372k1464 Application or Affidavit 372k1468 k. Necessity; Inadequacy of Other Procedures. Most Cited Cases Wiretap affidavit's omission of results of additional investigative techniques, including results obtained from use of video surveil-

372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers 372k1470 k. Order or Warrant in General. Most Cited Cases Telecommunications 372 1479

372 Telecommunications 372X Interception or Disclosure of Electronic Communications; Electronic Surveillance 372X(B) Authorization by Courts or Public Officers

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372k1479 k. Review of Proceedings; Standing. Most Cited Cases Wiretap order's failure to identify "the person authorizing the application" as required by the wiretap statute did not prejudice defendants, so as to require suppression of wiretap evidence, where wiretap applications were authorized by an appropriate individual within the Department of Justice and that authorizing individual was identified by name in the wiretap application. 18 U.S.C.A. § 2518(4)(d). [11] Jury 230 116

110XXIV(N) Discretion of Lower Court 110k1152 Conduct of Trial in General 110k1152(2) k. Selection and Impaneling of Jury. Most Cited Cases Jury 230 131(2)

230 Jury 230V Competency of Jurors, Challenges, and Objections 230k114 Challenge to Panel or Array, and Motion to Quash Venire 230k116 k. Grounds. Most Cited Cases Jury 230 133

230 Jury 230V Competency of Jurors, Challenges, and Objections 230k124 Challenges for Cause 230k131 Examination of Juror 230k131(2) k. Discretion of Court. Most Cited Cases Jury 230 133

230 Jury 230V Competency of Jurors, Challenges, and Objections 230k124 Challenges for Cause 230k133 k. Trial and Determination. Most Cited Cases Potential juror's statements during voir dire about his concerns over his personal safety based on presence of United States marshals in the courtroom did not require a mistrial or a new venire in drug conspiracy trial; any prejudice that may have resulted from the statements was adequately addressed when the district court explained that there were more marshals present than usual because seven defendants were on trial, and admonished jurors not to interpret the existence of the marshals as any indication that violence was about to occur in the courtroom. [12] Criminal Law 110 110 Criminal Law 110XXIV Review 1152(2)

230 Jury 230V Competency of Jurors, Challenges, and Objections 230k124 Challenges for Cause 230k133 k. Trial and Determination. Most Cited Cases District court has broad discretion in conducting the voir dire examination because it is in the best position to judge the effect which improper statements might have upon a jury; court's ruling on a motion for mistrial based on improper statements during voir dire will therefore be disturbed only on a clear showing of abuse of discretion. [13] Criminal Law 110 1152(2)

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1152 Conduct of Trial in General 110k1152(2) k. Selection and Impaneling of Jury. Most Cited Cases In reviewing the district court's decision on a motion for mistrial based on improper statements during voir dire, Court of Appeals asks whether the defendant's right to a fair and impartial jury was violated by the poten-

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tially prejudicial statement. [14] Jury 230 131(13)

lated the content of the overheard conversation to any of the other jurors. U.S.C.A. Const.Amend. 5. [16] Criminal Law 110 1152(2)

230 Jury 230V Competency of Jurors, Challenges, and Objections 230k124 Challenges for Cause 230k131 Examination of Juror 230k131(13) k. Mode of Examination. Most Cited Cases District court did not abuse its discretion in declining to question the other members of the panel after potential juror in drug conspiracy case expressed concerns over his personal safety based on presence of United States marshals in the courtroom, where defense counsel did not request questioning of the individual panel members, and expressed a desire to avoid highlighting the exchange to the rest of the panel. [15] Constitutional Law 92 268(2.1)

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1152 Conduct of Trial in General 110k1152(2) k. Selection and Impaneling of Jury. Most Cited Cases Criminal Law 110 1155

92 Constitutional Law 92XII Due Process of Law 92k256 Criminal Prosecutions 92k268 Trial 92k268(2) Particular Cases and Problems 92k268(2.1) k. In General. Most Cited Cases Criminal Law 110 868

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1155 k. Custody and Conduct of Jury. Most Cited Cases Court of Appeals reviews for abuse of discretion the district court's decision on how to handle allegations of juror misconduct or bias. [17] Criminal Law 110 622.7(11)

110 Criminal Law 110XX Trial 110XX(J) Issues Relating to Jury Trial 110k868 k. Objections and Disposition Thereof. Most Cited Cases District court did not violate due process by failing to question jury regarding defense counsel's conversation about a gun that one of the jurors overheard during a lunch break, where court took the precautionary step of dismissing the juror and gave defense counsel opportunity to examine the juror, who steadfastly maintained that she had not re-

110 Criminal Law 110XX Trial 110XX(A) Preliminary Proceedings 110k622 Joint or Separate Trials of Codefendants 110k622.7 Grounds for Severance or Joinder 110k622.7(11) k. Disparity in Weight of Evidence. Most Cited Cases Defendant charged with drug offenses arising out of a crack cocaine distribution conspiracy was not prejudiced by district court's denial of his motion for a severance, even assuming that evidence against codefendants was stronger than the evidence against defendant; jury's acquittal of defendant of conspiracy charge demonstrated that it was capable of separating the evidence against him from the evidence against his

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co-defendants, and district court gave a limiting instruction. [18] Criminal Law 110 1148

110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1148 k. Preliminary Proceedings. Most Cited Cases Court of Appeals reviews the trial court's denial of severance for an abuse of discretion. [19] Criminal Law 110 622.7(3)

110XX Trial 110XX(A) Preliminary Proceedings 110k622 Joint or Separate Trials of Codefendants 110k622.7 Grounds for Severance or Joinder 110k622.7(3) k. Prejudice; Fair Trial. Most Cited Cases To establish an abuse of discretion in denial of severance, a defendant must make a strong showing of actual prejudice. [22] Criminal Law 110 622.7(8)

110 Criminal Law 110XX Trial 110XX(A) Preliminary Proceedings 110k622 Joint or Separate Trials of Codefendants 110k622.7 Grounds for Severance or Joinder 110k622.7(3) k. Prejudice; Fair Trial. Most Cited Cases In deciding on a motion for severance, the district court has a duty to weigh the prejudice resulting from a joint trial of codefendants against the expense and inconvenience of separate trials. [20] Criminal Law 110 622.6(4)

110 Criminal Law 110XX Trial 110XX(A) Preliminary Proceedings 110k622 Joint or Separate Trials of Codefendants 110k622.6 In General 110k622.6(4) k. Conspiracy. Most Cited Cases Preference in a conspiracy trial is that persons charged together should be tried together. [21] Criminal Law 110 110 Criminal Law 622.7(3)

110 Criminal Law 110XX Trial 110XX(A) Preliminary Proceedings 110k622 Joint or Separate Trials of Codefendants 110k622.7 Grounds for Severance or Joinder 110k622.7(8) k. Evidence Admissible Only Against Codefendant; Spillover or Compartmentalization. Most Cited Cases Neither a mere allegation that defendant would have a better chance of acquittal in a separate trial, nor a complaint of the "spillover effect" from the evidence that was overwhelming or more damaging against the co-defendant than that against the moving party is sufficient to warrant severance; rather, to show prejudice requiring severance, a defendant must show that there is a serious risk that a joint trial would compromise a specific trial right, or prevent the jury from making a reliable judgment about guilt or innocence. [23] Conspiracy 91 48.1(1)

91 Conspiracy 91II Criminal Responsibility 91II(B) Prosecution 91k48 Trial 91k48.1 Questions for Jury 91k48.1(1) k. In General. Most Cited Cases

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Case 1164 423 F.3d 1:01-cr-00214-WYD 423 F.3d 1164 (Cite as: 423 F.3d 1164)

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Criminal Law 110

1144.13(3)

Conspiracy 91

24.5

110 Criminal Law 110XXIV Review 110XXIV(M) Presumptions 110k1144 Facts or Proceedings Not Shown by Record 110k1144.13 Sufficiency of Evidence 110k1144.13(2) Construction of Evidence 110k1144.13(3) k. Construction in Favor of Government, State, or Prosecution. Most Cited Cases Criminal Law 110 1144.13(5)

110 Criminal Law 110XXIV Review 110XXIV(M) Presumptions 110k1144 Facts or Proceedings Not Shown by Record 110k1144.13 Sufficiency of Evidence 110k1144.13(5) k. Inferences or Deductions from Evidence. Most Cited Cases Question whether there existed evidence sufficient to establish a single conspiracy is one of fact for the jury to decide; when reviewing the jury's decision, Court of Appeals must view all of the evidence, both direct and circumstantial, in the light most favorable to the government, and all reasonable inferences and credibility choices must be made in support of the jury's verdict. [24] Conspiracy 91 24(1)

91 Conspiracy 91II Criminal Responsibility 91II(A) Offenses 91k23 Nature and Elements of Criminal Conspiracy in General 91k24.5 k. Knowledge and Intent. Most Cited Cases To prove conspiracy, the government must show: (1) that two or more people agreed to violate the law, (2) that the defendant knew at least the essential objectives of the conspiracy, (3) that the defendant knowingly and voluntarily became a part of it, and (4) that the alleged co-conspirators were interdependent. [25] Conspiracy 91 24(2)

91 Conspiracy 91II Criminal Responsibility 91II(A) Offenses 91k23 Nature and Elements of Criminal Conspiracy in General 91k24 Combination or Agreement 91k24(2) k. Single or Multiple Conspiracies. Most Cited Cases Single conspiracy does not exist solely because many individuals deal with a common central player; what is required is a shared, single criminal objective, not just similar or parallel objectives between similarly situated people. [26] Conspiracy 91 24.5

91 Conspiracy 91II Criminal Responsibility 91II(A) Offenses 91k23 Nature and Elements of Criminal Conspiracy in General 91k24 Combination or Agreement 91k24(1) k. In General. Most Cited Cases

91 Conspiracy 91II Criminal Responsibility 91II(A) Offenses 91k23 Nature and Elements of Criminal Conspiracy in General 91k24.5 k. Knowledge and Intent. Most Cited Cases Conspiracy 91 91 Conspiracy 47(2)

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91II Criminal Responsibility 91II(B) Prosecution 91k44 Evidence 91k47 Weight and Sufficiency 91k47(2) k. Circumstantial Evidence. Most Cited Cases Defendant charged with conspiracy need not have knowledge of all the details or all the members of the conspiracy and may play only a minor role in the conspiracy; government need only prove by direct or circumstantial evidence that the defendant knew at least the essential objectives of the conspiracy, and the defendant knowingly and voluntarily became part of it. [27] Conspiracy 91 47(12)

91II Criminal Responsibility 91II(B) Prosecution 91k44 Evidence 91k44.2 k. Presumptions and Burden of Proof. Most Cited Cases Evidence that a defendant is a major supplier of drugs is sufficient to infer knowledge of the broader conspiracy. [29] Conspiracy 91 24(2)

91 Conspiracy 91II Criminal Responsibility 91II(B) Prosecution 91k44 Evidence 91k47 Weight and Sufficiency 91k47(3) Particular Conspiracies 91k47(12) k. Narcotics and Dangerous Drugs. Most Cited Cases Evidence that defendant was a major source of supply for crack cocaine distribution operation, that he traveled to another state for purpose of obtaining large quantities of drugs for that organization, discussed the conspiracy's drug sales with its leader, and that provided equipment and assistance in converting powder cocaine to crack cocaine was sufficient to establish that defendant was part of charged conspiracy to distribute and possess with intent to distribute crack cocaine, despite evidence that some of the drugs in the conspiracy may have come from other suppliers. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 401(a)(1), (b)(1)(A)(iii), 406, 21 U.S.C.A. §§ 841(a)(1), (b)(1)(A)(iii), 846. [28] Conspiracy 91 91 Conspiracy 44.2

91 Conspiracy 91II Criminal Responsibility 91II(A) Offenses 91k23 Nature and Elements of Criminal Conspiracy in General 91k24 Combination or Agreement 91k24(2) k. Single or Multiple Conspiracies. Most Cited Cases Existence of multiple drug dealers and suppliers does not show the existence of separate conspiracies as long as the activities are aimed at a common goal. [30] Conspiracy 91 47(12)

91 Conspiracy 91II Criminal Responsibility 91II(B) Prosecution 91k44 Evidence 91k47 Weight and Sufficiency 91k47(3) Particular Conspiracies 91k47(12) k. Narcotics and Dangerous Drugs. Most Cited Cases Evidence that defendant had purchased crack cocaine from leader of drug conspiracy at least five to ten times, had been fronted drugs on credit in exchange for payment from proceeds realized on sale, discussed possibility of selling drugs in a particular location, and had discussed other dealers in the leader's distribution network was sufficient to establish that defendant was part of charged conspiracy to distribute and possess with intent to distribute crack cocaine. Comprehensive Drug Abuse Prevention and Con-

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trol Act of 1970, §§ 401(a)(1), (b)(1)(A)(iii), 406, 21 U.S.C.A. §§ 841(a)(1), (b)(1)(A)(iii), 846. [31] Telecommunications 372 1018(4)

372 Telecommunications 372III Telephones 372III(I) Offenses and Prosecutions 372k1015 Prosecutions 372k1018 Evidence 372k1018(4) k. Weight and Sufficiency. Most Cited Cases Evidence that defendant's telephone conversation with leader of drug conspiracy facilitated his girlfriend's possession of more that five grams of crack cocaine was sufficient to support conviction for using a telephone to facilitate a drug felony, despite evidence that the girlfriend and others smoked the crack cocaine instead of distributing it to others as defendant had promised. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 403(b), 21 U.S.C.A. § 843(b). [32] Criminal Law 110 1030(1)

230 Jury 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k34 Restriction or Invasion of Functions of Jury 230k34(5) Sentencing Matters 230k34(8) k. Drug Offenses. Most Cited Cases (Formerly 230k34(1)) Jury 230 34(10)

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1030 Necessity of Objections in General 110k1030(1) k. In General. Most Cited Cases Under the plain error test, before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) affects substantial rights; if all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. [33] Jury 230 34(8)

230 Jury 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k34 Restriction or Invasion of Functions of Jury 230k34(5) Sentencing Matters 230k34(10) k. Weapons. Most Cited Cases (Formerly 230k34(1)) District court did not commit Booker error in sentencing defendants for drug offenses when it made additional findings regarding one defendant's possession of a firearm and quantities of drugs attributable to second defendant for a determination of the sentencing range under Sentencing Guidelines, where such findings did not increase defendants' sentences, which were the minimum permitted by statute given the quantity of drugs found by the jury beyond a reasonable doubt and defendants' prior convictions. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 401(b)(1)(A)(iii), 21 U.S.C.A. § 841(b)(1)(A)(iii). [34] Jury 230 34(7)

230 Jury 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k34 Restriction or Invasion of Functions of Jury 230k34(5) Sentencing Matters

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230k34(7) k. Particular Cases in General. Most Cited Cases (Formerly 230k34(1)) District court's findings at sentencing regarding fact of defendant's prior convictions did not implicate the Sixth Amendment. U.S.C.A. Const.Amend. 6. [35] Jury 230 34(8)

[37] Criminal Law 110

1035(1)

230 Jury 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k34 Restriction or Invasion of Functions of Jury 230k34(5) Sentencing Matters 230k34(8) k. Drug Offenses. Most Cited Cases (Formerly 230k34(1)) Sixth Amendment did not require jury to determine whether defendant's drug offense and prior offenses constituted felonies that were crimes of violence or controlled substance offenses for sentencing purposes. U.S.C.A. Const.Amend. 6. [36] Jury 230 34(8)

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1035 Proceedings at Trial in General 110k1035(1) k. In General. Most Cited Cases District court's non-constitutional Booker error in applying the Sentencing Guidelines in a mandatory fashion when sentencing defendant for a drug offense did not affect defendant's substantial rights, and thus could not be corrected on appeal as plain error, where district court exercised its discretion in departing downward based on defendant's substantial assistance, resulting in sentence well below the bottom end of the Guidelines range. U.S.S.G. § 5K1.1, 18 U.S.C.A. [38] Jury 230 34(8)

230 Jury 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k34 Restriction or Invasion of Functions of Jury 230k34(5) Sentencing Matters 230k34(8) k. Drug Offenses. Most Cited Cases (Formerly 230k34(1)) District court's finding that defendant was at least 18 years old at the time he committed drug offense in imposing the career offender provision of the Sentencing Guidelines did not violate defendant's Sixth Amendment rights, where his sentence was below the maximum authorized by the facts found by the jury. U.S.C.A. Const.Amend. 6; U.S.S.G. § 4B1.1, 18 U.S.C.A.

230 Jury 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k34 Restriction or Invasion of Functions of Jury 230k34(5) Sentencing Matters 230k34(8) k. Drug Offenses. Most Cited Cases (Formerly 230k34(1)) District court committed non-constitutional Booker error by applying Sentencing Guidelines in a mandatory fashion in sentencing defendant for use of a telephone to facilitate a drug trafficking crime, although court imposed statutory maximum sentence that was well below bottom end of the Guidelines range, since court could have imposed an even lower sentence under a purely discretionary Guidelines system. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 403(b), 21 U.S.C.A. §

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; U.S.S.G. § 5G1.1, 18 U.S.C.A. [39] Criminal Law 110 1035(1)

110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1035 Proceedings at Trial in General 110k1035(1) k. In General. Most Cited Cases District court's non-constitutional Booker error in applying Sentencing Guidelines in a mandatory fashion when sentencing defendant for use of a telephone to facilitate a drug trafficking crime did not affect defendant's substantial rights, and thus could not be corrected on appeal as plain error, where defendant was given a sentence substantially below the normal Guidelines range, and there was no evidence that court would have decided to impose an even lower sentence under an advisory Guidelines scheme. [40] Criminal Law 110 1166(1)

ible Error 110k1166 Preliminary Proceedings 110k1166(1) k. In General. Most Cited Cases Jury 230 34(8)

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1166 Preliminary Proceedings 110k1166(1) k. In General. Most Cited Cases Constitutional Booker error arising when district court finds facts that increases defendant's sentence under the Sentencing Guidelines will only be found harmless if the government can demonstrate beyond a reasonable doubt that the error did not affect the defendant's substantial rights. [41] Criminal Law 110 1166(1)

230 Jury 230II Right to Trial by Jury 230k30 Denial or Infringement of Right 230k34 Restriction or Invasion of Functions of Jury 230k34(5) Sentencing Matters 230k34(8) k. Drug Offenses. Most Cited Cases (Formerly 230k34(1)) Constitutional Booker error occurring when district court sentenced defendant under the Sentencing Guidelines on basis of drug quantity it found at sentencing affected defendant's substantial rights and thus was not harmless; other than fact that drug quantity found by the district court exactly split the difference between the quantities advocated by the government and the defendant, it was unclear from the record how the district court arrived at that finding. U.S.C.A. Const.Amend. 6. *1170 Matthew C. Golla, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, John T. Carlson, Research and Writing Attorney, with him on the briefs), Denver, CO, for Defendant-Appellant Willie James Small. Michael G.A. Williams, Denver, CO, for Defendant-Appellant Alvin Green, a/k/a/ Mel Dog. John Henry Schlie, Law Office of John Henry Schlie, P.C., Centennial, CO, for Defendant-Appellant Theolian Lloyd. Wade H. Eldridge, Wade H. Eldridge, P.C., Denver, CO, for Defendant-Appellant George Melvin Murray. Robert T. McAllister, Robert T. McAllister, P.C., Denver, CO, for Defendant-Appellant Tommy Jones.

110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Revers-

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James C. Murphy, Assistant United States Attorney (John W. Suthers, United States Attorney, William J. Leone, Acting United States Attorney, Kathleen Tafoya, Assistant United States Attorney, Guy Till, Assistant United States Attorney, with him on the briefs), Denver, CO, for Plaintiff-Appellee. Ronald Gainor, Longmont, CO, adopted Defendant-Appellant Willie Smalls' brief, for Defendant-Appellant Sammy Lee Woods. Dennis W. Hartley, Dennis W. Hartley, P.C., Colorado Springs, CO, for DefendantAppellant Dwayne Van Dyke. Frank Moya, Denver, CO, for Defendant-Appellant Dawan Eugene Smith. Before MURPHY, McWILLIAMS, and HARTZ, Circuit Judges.MURPHY, Circuit Judge. I. INTRODUCTION Defendants-appellants Willie Small, Alvin Green, Theolian Lloyd, Sammy Lee Woods, George Murray, and Tommy Jones were convicted in United States District Court for the District of Colorado of various drug offenses arising out of a large-scale crack cocaine distribution conspiracy operating in the Denver area. Defendants-appellants Dwayne Van Dyke and Dawan Eugene Smith pleaded guilty to offenses arising out of the same drug conspiracy. Appellants now appeal various aspects of their convictions and sentences. This court previously consolidated the appeals of Small (No. 04-1188), Green (No. 04-1157), Lloyd (No. 04-1148), Woods (No. 04-1168), Murray (No. 04-1161), and Van Dyke (No. 04-1201). We now further consolidate the appeals of Jones (No. 03-1513) and Smith (No. 04-1503) with the above cases and affirm the convictions and sentences of all appellants except for Murray. As to Murray, this court remands the case for resentencing in accordance with the Supreme Court's opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621

FN1 FN1. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' requests in United States v. Van Dyke (No. 04-1201), and United States v. Smith (No. 04-1503), for a decision on the briefs without oral argument. Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). As to these two appeals, the case is therefore ordered submitted without oral argument. *1171 II. BACKGROUND In September 2000, FBI Special Agent Todd Wilcox of the Metro Gang Task Force ("Task Force") received information from an informant that defendant-appellant Willie Small was engaged in the large-scale distribution of crack cocaine in the Denver metropolitan area. Between September 2000 and January 2001, Wilcox directed the informant to conduct nine controlled purchases of crack cocaine from Small and his associates while wearing a body wire. Wilcox utilized the informant until her identity was revealed in an unrelated case. The informant was then moved out of state and no longer used in the investigation. Over the next several months, the Task Force continued to investigate Small's organization using other investigative techniques, including visual surveillance, video cameras, pen registers, and trap-and-trace devices. On March 28, 2001, Wilcox applied for a wiretap on Small's cellular phone pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522. The affidavit in support of the wiretap application consisted of an exhaustive 100-page summary of the investigation, setting forth the reasons why the investigative techniques used by the Task Force up to that point were unable to meet the investigation's objectives. A United

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States district judge granted the application, and on April 20, 2001, also authorized a second wiretap on Small's home phone. The district judge subsequently extended the cellular phone wiretap twice on April 27, 2001, and May 25, 2001, and extended the home telephone wiretap once on May 18, 2001. The wiretaps remained in place until the close of the investigation in June, 2001. The FBI then simultaneously executed numerous search and arrest warrants against suspected members of the drug conspiracy. Small, Green, Lloyd, Woods, Murray, Jones, Van Dyke, Smith, and nineteen other codefendants were charged in a seventy-seven count second superseding indictment filed in United States District Court for the District of Colorado. Count I of the indictment charged most of the defendants, including all appellants in this case, with conspiracy to distribute and possess with intent to distribute crack cocaine weighing more than fifty grams, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and 21 U.S.C. § 846. The remainder of the counts charged individual defendants with various other drug, weapons, and money laundering offenses. Defendants moved to suppress the evidence obtained pursuant to the court-ordered wiretaps. After five days of evidentiary hearings, the district court denied the motions. Most of the defendants, including appellants Van Dyke and Smith, then pleaded guilty in exchange for a dismissal of some of the charges against them. Van Dyke pleaded guilty to possession with intent to distribute more than fifty grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). He was sentenced to 175 months' imprisonment. Smith pleaded guilty to use of a telephone to facilitate a drug felony in violation of 21 U.S.C. § 843(b). He was sentenced to forty-eight months' imprisonment, the statutory maximum sentence. Green, Lloyd, Woods, Murray, and other co-

defendants filed motions for separate trials in the district court. After a hearing, the court denied the motions. The court did, however, order a separate trial for Jones. Jones waived his right to a trial by jury and was tried in a two-day bench trial at which the government introduced evidence from the wiretaps on Small's telephones. The court found Jones not guilty of conspiracy, but guilty of using a telephone to facilitate a drug felony, and *1172 aiding and abetting the distribution of more than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), and 18 U.S.C. § 2. He was sentenced to concurrent 140-month and 48-month sentences. The remaining seven defendants, including appellants Small, Green, Lloyd, Woods, and Murray, were tried together in a jury trial lasting from September 22, 2003, to November 13, 2003. Small, Green, Lloyd, and Woods were convicted on Count I as well as on other drug charges. Murray was acquitted on Count I but convicted of distribution and possession with intent to distribute more than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and use of a telephone to facilitate a drug felony. Because Small and Green each had at least two prior felony drug convictions, they were sentenced to mandatory terms of life imprisonment on Count I pursuant to 21 U.S.C. § 841(b)(1)(A). Lloyd and Woods each had one prior felony drug conviction and were sentenced to the statutory minimum term of 240 months' imprisonment on Count I pursuant to the same provision. All four of these defendants also received concurrent sentences on their remaining counts of conviction. Murray, who was acquitted on Count I, was sentenced to concurrent sentences of 150 months and 48 months. III. DISCUSSION

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A. Motions to Suppress 1. Franks Challenges To obtain a wiretap pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the government must follow special procedures set forth in 18 U.S.C. §§ 2510-2522. See United States v. Green, 175 F.3d 822, 828 (10th Cir.1999). One requirement of the statute is that the government must present a written application to a federal judge establishing that the wiretap is necessary. 18 U.S.C. § 2518(1); Green, 175 F.3d at 828. Before granting the application, the judge must find that the affidavit establishes necessity by showing 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); Green, 175 F.3d at 828. [1][2] Small, Green, Lloyd, Woods, and Jones argue that the issuing judge's finding of necessity was tainted by inaccurate and misleading statements in Special Agent Wilcox's wiretap application and supporting testimony. This court reviews alleged misrepresentations and omissions in a wiretap application under the standard for challenges to search warrants developed by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See Green, 175 F.3d at 828. Under this standard, the defendant must show that any misstatements were made knowingly, intentionally, or recklessly, and that the erroneous information was material to the district court's finding of necessity. Id. The defendant bears the burden of overcoming the presumption that the district court's wiretap authorization was proper. Id. at 828-29. In response to appellants' allegations of inaccuracies, the district court held five days

of hearings before issuing a written order denying the motions. See United States v. Small, 229 F.Supp.2d 1166, 1208 (D.Colo.2002). The court concluded that the allegedly false statements identified by appellants were either not inaccurate or were not made intentionally or with reckless disregard for the truth. Id. at 1191-1203. The court further concluded that the identified statements were not material to the issuing court's finding of necessity. Id. This court reviews the district court's *1173 factual findings for clear error and its legal rulings de novo. Green, 175 F.3d at 829. a. Small's Profits from Drug Sales [3] Appellants first argue that Wilcox's affidavit incorrectly stated that Small earned $18,000 per week selling crack cocaine. Wilcox derived the $18,000 figure from a taped conversation between Small and the confidential informant in which he believed he heard that figure used. At the suppression hearing, however, Wilcox admitted that his understanding of the conversation was incorrect. The government now concedes that what Small actually said was, if he could sell eighteen ounces of crack cocaine per week, he could make $7000.FN2 FN2. Appellants challenge even this reduced figure, arguing that the tape is insufficiently clear to understand what Small actually said. Appellants contend that the error must have been intentional or reckless because the tape was so unclear that Wilcox could not possibly have believed that he understood what Small was saying. After listening to the recorded conversation, the district court concluded that the tape was "well-nigh incomprehensible." Small, 229 F.Supp.2d at 1191 n. 7.FN3 The court further found, however, that Wilcox verified the contents of the conversation with the confidential informant prior to including the information in the affi-

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davit. Id. at 1191. The court therefore concluded that Wilcox "was, at most, negligent or committed an innocent mistake by including the $18,000 figure." Id. In light of the fact that Wilcox's understanding of the tape's meaning was corroborated by the informant's first-hand account of the conversation, the district court's conclusion that Wilcox merely committed an innocent mistake was not clearly erroneous. FN3. Appellants nevertheless admit that "it is perhaps possible to hear Mr. Small say something like `I do 18 a week.' " Appellants attempt to discredit Wilcox's explanation by pointing to the testimony of the confidential informant, who stated she could not remember verifying the $18,000 figure with Wilcox. The mere fact that the informant could not remember the exact content of her conversation with Wilcox, however, does not in any way contradict Wilcox's testimony. The informant instead attributed her inability to recall her conversation with Wilcox to the significant time that had elapsed since that meeting. Furthermore, the district court found Wilcox's testimony credible, and declined the government's offer to present the testimony of two police officers who witnessed the informant's conversation because it concluded that such testimony was unnecessary. Credibility determinations are uniquely "within the province of the district court" and are not subject to question here. United States v. Jurado-Vallejo, 380 F.3d 1235, 1238 (10th Cir.2004) (quotation omitted). FN4 FN4. Appellants stress that Wilcox did not remove the erroneous $18,000 figure before submitting his affidavit for the second wiretap and the affidavits for extensions of both the first and second wiretaps, despite the fact that the evidence gathered by that time did not support the asser-

tion that Small was distributing such large quantities of crack cocaine. The district court found, however, that Wilcox's failure to remove the figure was neither intentional nor reckless. Wilcox stated in his affidavits in support of the wiretap extensions and testified at the suppression hearing that Small had complained that he was experiencing a slowdown in his business. For this reason, it would not have been surprising to see a smaller than expected quantity of drugs being dealt by Small. Appellants cite no evidence to disprove the veracity of Wilcox's explanation. Accordingly, the district court's finding was not clearly erroneous. Appellants further argue that Wilcox misled the district court by representing *1174 that the size of Small's drug organization had been corroborated by the confidential informant's controlled purchases of crack cocaine. Appellants cite the following exchange that occurred in an in camera meeting regarding the application for the first wiretap order: THE COURT: What you indicate in this affidavit is that this is a very large operation involving literally millions of dollars. AGENT WILCOX: Based on what he has told our informant, which is corroborated by the amount of crack that we have purchased using the confidential informant, he's on parole, and he's still generating a whole lot of money distributing crack cocaine. Appellants argue that Wilcox's response to the court's question suggested that the informant's purchases of crack cocaine corroborated the fact that Small's drug organization "involved literally millions of dollars," when in fact the informant purchased a much smaller amount of drugs from Small. Appellants' interpretation of Wilcox's statement is not supported by the record. Wilcox

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told the district court only that the informant's controlled purchases corroborated that Small was generating "a whole lot of money" distributing crack cocaine, a fact that was undoubtedly true. See Small, 229 F.Supp.2d at 1199 (concluding that Small was "a large scale distributor of crack cocaine"). Wilcox never claimed that the informant personally purchased huge quantities of drugs from Small, and any such inference from Wilcox's statements would have been unwarranted. In fact, the affidavit set forth the specific quantities of crack cocaine purchased by the informant and the district court was therefore fully able to evaluate the extent to which the purchases corroborated the size of Small's drug organization. Because nothing in Wilcox's statement was false, the district court did not err in denying the motion to dismiss on this ground.FN5 FN5. Jones also argues that the affidavit deceptively omitted the fact that asset searches did not reveal substantial assets in Small's name. As noted by the district court, however, the affidavit accurately mentions the only result of an asset search involving Small, which was the information relating to the original purchase value of Small's Mercedes-Benz. Jones does not identify any other asset searches conducted by the government that were omitted from the affidavit. b. The Value of Small's Mercedes-Benz [4] Appellants argue that Wilcox's affidavit misleadingly alleged that Small's 1992 Mercedes-Benz had "an original purchase price of $93,500." Although appellants concede that this statement was literally true, they claim it was misleading because Small purchased the car used and on credit for significantly less than that amount. The affidavit, however, noted that the car was a 1992 model year, so any reasonable reader would have

assumed that it was no longer worth its original purchase price at the time the affidavit was filed in 2001. Furthermore, there is no reason to think that the price Small originally paid for his car was in any way material to the district court's finding that the wiretap was necessary. The identified statement in the affidavit merely related the results of FBI records checks related to Small. The district court therefore did not err in rejecting this argument. c. Threats to the Informant's Safety [5] Appellants next argue that Wilcox misled the court into believing that the confidential informant was physically at risk from Small. They cite the following inchambers exchange: *1175 THE COURT: Is there actual physical danger to your-to your informant or to the people that are involved here that you would hope to use as confidential sources? AGENT WILCOX: Definitely. The one confidential informant has been moved out of state, so at least temporarily, for now, nobody knows where he is-or she is. But as stated in the affidavit, Willie Small told the informant that-or words to the effect that why he only deals with a close-knit group of people is because, you know, he's-he's been arrested before and he wants to know of the person, whoever it is, that may, you know, inform on him. And the implication was so he would know who they are so he could do something about it. Appellants claim that Wilcox's statements suggested that the informant was moved out of state due to threats from Small, when in fact she was moved for reasons unrelated to the Small case. The affidavit, however, is not misleading because it clearly states that the informant was moved because her identity had been disclosed in a separate case. Nothing in Wilcox's statements in chambers contradicts the

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affidavit on this point. Nor did Wilcox ever state or imply that there were any actual threats from Small against the informant. His statement to the judge was limited to an assertion that Small had told the informant he had been arrested before, and that if anyone informed on him he wanted to know who that person was. The fact that Small made this statement was also contained in the affidavit and is not disputed by appellants. Wilcox interpreted Small's statement as an implied threat against anyone who informed against him, but the district court, supplied with all relevant information, was free to disagree with Wilcox's interpretation. Appellants contend Wilcox's statement was contradicted by the informant's later testimony that she did not feel threatened by Small. Although the informant did testify to this effect, she also recognized that she would have been in danger if her identity as an informant was ever disclosed to Small. Based on this testimony, the district court concluded: While [the informant] denied having received a specific threat of actual harm from Defendant Small or his associates during the time she was an informant, she also indicated she had significant general fear that someone, including Defendant Small and his associates, might seek to harm her if they discovered she was an informant. Indeed, so great was [the informant's] concern about possible recriminations or harm that she was the one to initiate a discussion of the topic with Government agents. Small, 229 F.Supp.2d at 1196 (citation omitted). The district court's conclusion on this point was not clearly erroneous, and the court therefore did not err in concluding that Wilcox's statements were neither deceptive nor misleading. d. The Feasibility of Introducing an Undercover Agent or Informant

[6] Jones argues that the government exaggerated the difficulty of introducing an undercover agent or a second informant into Small's drug organization. In particular, Jones argues that (1) Wilcox failed to inform the court that the confidential informant had known Small for several years prior to the investigation and therefore could have been used to introduce an undercover agent or informant to Small; and (2) the affidavit did not inform the court that African-American officers could have been used to infiltrate Small's organization. Jones contends that these alleged omissions undermine the government's showing of necessity because they falsely *1176 imply that traditional investigative techniques would have been ineffective. [7] In his first affidavit, Wilcox stated that he had considered the possibility of placing an undercover agent, but rejected this possibility because any evidence obtained would have been duplicative of evidence gathered by the confidential informant. As noted by the district court, "[d]espite [the informant's] dealings with the inner circle of Defendant Small's Organization, [she] was not able to describe the full scope of the Organization nor was she able to provide investigators with any knowledge of the Organization's suppliers." Id. at 1181. The government is not required to attempt to introduce other agents or informants in a case where this technique is unlikely to produce any additional evidence. See United States v. Bennett, 219 F.3d 1117, 1122 (9th Cir.2000) (noting that the wiretapping statute "does not mandate the indiscriminate pursuit to the bitter end of every non-electronic device ... to a point where the investigation becomes redundant or impractical" (quotation omitted)). In addition, the affidavit stated that Small was reluctant to engage in drug transactions with people he did not know, and once became angry when a third party attempted to

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introduce him to a stranger. According to Wilcox, the informant told him "it was common knowledge in the dope community that if you purchase narcotics from Small and want to continue purchasing narcotics from him you don't bring anyone new to meet with him." For this reason, when the government asked the confidential informant whether she would be willing to introduce an undercover agent or additional informant to Small, she refused to do so. Jones has failed to establish that the identified omissions from the affidavit in any way undermine the government's position that introducing another officer or informant would have been both unnecessary and unreasonably difficult. Jones further argues that the affidavit falsely stated that two members of the conspiracy, Dachaun Davis and Keyonna Davis, could not be "flipped" because they were Small's children, when in fact they were not his children. The district court addressed this argument and concluded that it was specious. Small, 229 F.Supp.2d at 1198. As noted by the district court, Wilcox informed the judge prior to issuance of the first wiretap order that although Small referred to Dachaun and Keyonna Davis as his son and daughter, he did not specifically know the nature of their relationship with Small. The court further noted that "the record is replete with instances where Defendant Small referred to Dachaun and Keyonna Davis as his son and daughter." Id. Jones does not attempt to explain how the district court's findings on this point were clearly erroneous. e. Omission of Certain Evidence [8] Jones argues that the affidavit omitted the results of several additional investigative techniques used by the government. He contends that the affidavit: (1) failed to report any of the results or lack of results obtained from the use of video surveillance of the area outside Small's home; and (2) omitted

the names of twenty individuals identified through the use of the pen register and trapand-trace devices. He also contends that the affidavit falsely stated that trash runs could not be employed in the investigation because "[s]urveillance has not seen any of the known participants in the Small organization actually take the trash to one of the dumpsters," when in fact surveillance video revealed one instance in which Small discarded trash in a dumpster. Jones fails to identify any evidence obtained or potentially obtainable from these *1177 investigative techniques that would have obviated the need for a wiretap. Wilcox's affidavit asserted that surveillance techniques, although useful, were insufficient to identify all the members of the drug conspiracy or to locate Small's suppliers. It further asserted that pen registers and trap-and-trace devices were of limited usefulness because they could not identify the parties to the conversation or differentiate between legitimate calls and calls for criminal purposes. Finally, the affidavit stated that trash runs were considered and rejected because finding traces of narcotics in the trash, the most likely kind of evidence to be obtained from this investigative technique, "would not provide any additional useful information that would lead to the full nature and scope of the drug conspiracy." Jones does not challenge the affidavit's asserted limitations on the utility of any of these investigative techniques. He has therefore failed to demonstrate that the alleged omissions and inaccuracies in any way undermined the district court's finding of necessity. 2. Other Challenges to the Wiretap Application a. Oath or Affirmation Requirement The wiretap statute requires that an application for a wiretap order "shall be made in writing upon oath or affirmation." 18 U.S.C.

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§ 2518(1). Defendant-appellant George Murray argues that the wiretap application did not conform to this requirement because the government submitted an unsworn courtesy copy of the materials in support of the application to the authorizing judge the day before the scheduled hearing on the application. The final version was submitted to the judge at the hearing the following day. Murray alleges that in approving the wiretap application, the authorizing judge relied on the unsworn courtesy copy rather than the final version of the application. He argues that the judge's reliance on the unsigned courtesy copy does not satisfy the "oath or affirmation" requirement of § 2518(1). See id. § 2518(10)(a)(ii). [9] Murray's contention is meritless. Given that the government fully complied with the oath or affirmation requirement by submitting a sworn final version of the application, it is irrelevant that the government also submitted an unsworn courtesy copy to the court. Furthermore, Murray's contention that the judge relied exclusively on the prior unsworn version in authorizing the wiretap is not supported by the record. Although the judge did review the courtesy copy of the application prior to the hearing, the judge also established at the hearing that the two versions were substantially identical. In the few instances in which the versions were different, the judge carefully reviewed the modifications prior to making a decision on the order. The record is therefore clear that the district court relied on the final version of the application in granting the wiretap order.FN6 FN6. Murray notes that the courtesy copy is not in the record and alleges that it was shredded by the government. He appears to insinuate that in doing so the government may have concealed differences between the two versions of the wiretap application that were never revealed to the

issuing court. As the district court noted, however, Murray has not explained how the final version of the application was materially different from the courtesy copy. See United States v. Small, 229 F.Supp.2d 1166, 1205 (D.Colo.2002). In light of the district court's determination that the two versions of the application were substantially identical, and Murray's failure to demonstrate that the court's determination was clearly erroneous, it is immaterial that the courtesy copy is not in the record. In addition, Murray has not shown that the final version of the application was in any way legally deficient, and has therefore failed to demonstrate that any modifications theoretically concealed by the government could have been material to the district court's finding of necessity. *1178 b. Omission of the Authorizing Official [10] Small argues in his opening brief that the wiretap statute requires suppression of the wiretap evidence because the order granting the wiretap did not identify "the person authorizing the application" as required by the wiretap statute. 18 U.S.C. § 2518(4)(d).FN7 Instead of naming a particular person as required by the statute, the district court's wiretap order noted only that the necessary approval had come from "a duly designated official of the [United States Department of Justice] Criminal Division." In his reply brief, Small concedes that this court's decision in United States v. Radcliff disposes of this argument. 331 F.3d 1153, 1160 (10th Cir.2003). In Radcliff, this court held that a failure to specifically name the authorizing official at the Department of Justice did not warrant suppression of wiretap evidence because such an error "constituted a technical defect that did not undermine the purposes of the statute or pre-

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judice Defendant." Id. As in Radcliff, there is no dispute here that the applications were authorized by an appropriate individual within the Department of Justice and that this authorizing individual was identified by name in the wiretap application. FN8 The failure to name the official in the wiretap order itself therefore did not result in prejudice to appellants. For this reason, Small is correct that Radcliff effectively forecloses this argument on appeal. FN7. The statute requires that the wiretap application must be authorized by "[t]he Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General." 18 U.S.C. § 2516(1). FN8. The application identifies the authorizing official as John C. Keeney, Deputy Assistant Attorney General of the Criminal Division, who had been specially designated by the Attorney General. B. Jury Issues 1. Motion for Mistrial or to Strike the Venire [11] Green, Lloyd, and Murray argue that the district court erred in denying defendants' motion for a mistrial or for a new venire based on the statements of a potential juror during voir dire. In response to the court's question to the member of the venire about whether he could be fair and impartial to both sides, the venireperson responded "[p]erhaps." He then stated: The drug industry is full of violence, tremendous amounts of violence, people are

killed every day in this country due to [ ] the drug industry and [ ] its attributes, if you will. I also know that we have seven defendants here that have been-I make no judgment about them at this point, but that was culled down from 27, I believe, so there's a larger group.... ... I walked into this courtroom, I noticed there's about ten large burly U.S. marshals in attendance with earphones, and I assume they're probably armed. So my concern is over security. My security and the security of my family.... So I am going to have a concern if I feel at all that ... my family could be put in jeopardy over my decisions in this case. I am not prejudging anybody in the case, but if I were to judge and make a judgment that some people might not be happy with, I am concerned about safety. *1179 The district court asked the venireperson if he was saying that he was "concerned that a U.S. marshal may pull out a gun and use it in the courtroom." The venireperson answered: I'm really not concerned about my safety here. But I am somewhat concerned about my safety leaving this. You know, people know me, they see me, they can, you know, they can certainly identify me, they can certainly find out whe