Appeal from the United States District Court for the District of Delaware. (D.C. Crim. No. 90-00017-02)
Before: Mansmann, Hutchinson and Rosenn, Circuit Judges.
In this appeal from a judgment of sentence after a jury trial, we are faced with the questions of whether the district court erred by failing to suppress evidence obtained through a court ordered wiretap, failing to grant an acquittal on Count II of the indictment on the basis of double jeopardy, failing to adequately charge the jury on multiple conspiracies, and, by enhancing the offense level under the Sentencing Guidelines. Because we do not find any legal error or abuse of discretion on the part of the district court, we will affirm the judgment of conviction and order of sentence.
In February of 1990, the federal Grand Jury for the District of Delaware indicted Darnell Phillips on multiple counts ranging from conspiracy to distribute cocaine (Count I); conspiracy to use a telephone to facilitate a felony drug offense (Count II); use of a telephone to facilitate a felony drug offense (Counts IV, VIII, X, XV, XVI, XVIII, and XX) and possession with intent to distribute cocaine (Count XXI).
The indictment arose out of an investigation by Delaware State Police detectives including electronic surveillance by a court ordered wiretap. The investigation disclosed that Phillips travelled to Philadelphia approximately three to four times a month to purchase four to six ounces of cocaine which he then sold to Darryl Jarmon and his co-conspirators.
After his arraignment, Phillips, with his co-defendants, filed several motions with the district court. In particular, Phillips raised the issue that the government had failed to exhaust all investigative means before obtaining the court order for the wiretap which was placed on his co-defendant's telephone. The district court denied the defendants' motions. Phillips' co-defendants later entered guilty pleas.
After a jury trial, at which many of Phillips' co-defendants testified against him, Phillips was found guilty on all counts. He was sentenced by the district court on April 16, 1991, to 188 months incarceration, five years supervised release and a special $500 assessment. Phillips filed a timely appeal from the conviction and sentence.
We review de novo the question of whether a full and complete statement of necessity for a wiretap was made in the application. Once it is determined that the statement was made, we will review the court's determination of necessity for an abuse of discretion. We have plenary review of the question of the district court's refusal to enter a judgment of acquittal as to Count II on the basis of double jeopardy since it involves a question of law. We review Phillips' challenge to the instructions on multiple conspiracies given to the jury by the district court under an abuse of discretion standard. With respect to sentencing under the Sentencing Guidelines, we ...