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Despite challenge, evidence supports drug convictions

There was no error in the wiretaps used to identify defendant’s participation in a drug distribution ring. Moreover, the evidence was sufficient to support the convictions and there was no error in calculating the amount of heroin for sentencing purposes.

Background

A jury in the District of Maryland convicted defendant Olden Minnick of eight offenses involving his participation in a drug distribution ring conducted in and around Baltimore. Personnel of the Drug Enforcement Administration and the Baltimore Police Department uncovered and identified the culprits — including Minnick — through the use of wiretaps and other forms of surveillance.

On appeal, Minnick asserts that (1) the court erred in the admission of trial evidence derived from the wiretaps and other forms of electronic surveillance, (2) the court erred in ruling on the sufficiency of the trial evidence supporting his convictions on Counts Three and Four and (3) the court and the jury erred in their drug-weight findings.

Evidentiary challenges

Minnick argues that the Wilson wiretap and the Brooks wiretap are infirm because the orders authorizing those wiretaps did not comply with the Maryland Wiretap Act. The court readily disposes of Minnick’s challenges to the Brooks wiretap, however, as Minnick did not contest that wiretap in the district court proceedings, and the court does not discern any plain error with respect to that wiretap.

Turning to the Wilson wiretap, Minnick presents a host of appellate challenges thereto. In the district court proceedings, however, he contested that wiretap on only two grounds: (1) lack of probable cause and (2) overbreadth. The court is satisfied that the district court did not commit reversible error in rejecting Minnick’s probable-cause and overbreadth objections to the Wilson wiretap. As for Minnick’s unpreserved challenges to the Wilson wiretap, the court discerns no plain error.

Next, Minnick asserts that the district court erred in failing to grant his request for a pre-trial hearing under Franks v. Delaware and in failing to, on its own, uncover additional Franks issues. Minnick contends that he is entitled to relief under Franks because the affidavits supporting the Wilson wiretap, the Brooks wiretap, the Byrd wiretap and the Minnick wiretap contained omissions and affirmative misrepresentations. Having carefully considered the affidavits underlying the various wiretap authorizations, the court is satisfied that an additional Franks hearing was not warranted.

Finally, Minnick challenges on particularity grounds the warrant issued by the Maryland state court that authorized the GPS monitoring of his cellphone and the collection of cell-site location information from that phone. As Minnick did not raise this contention in the district court, our review is for plain error only. Because the court has not identified any such error, it rejects Minnick’s challenge to the Maryland state court’s order.

Sufficiency of evidence

Minnick next contends that the district court erred in denying his post-trial motion for judgments of acquittal on Counts Three and Four. According to Minnick, there was insufficient evidence to sustain his Count Three conviction for using a communication facility in furtherance of a drug felony and his Count Four conviction for possessing heroin with intent to distribute.

Although Minnick complains that there is no direct evidence proving the offenses alleged in those counts, “circumstantial evidence may support a verdict of guilty even though it does not exclude every reasonable hypothesis consistent with innocence.” Because the evidence is more than sufficient to sustain Minnick’s convictions on Counts Three and Four, the court affirms the district court’s denial of his motion for judgments of acquittal insofar as it relates to those offenses.

Sentencing

Finally, Minnick contends that the district court miscalculated his sentencing guidelines range. Minnick complains that the district court’s drug-weight determination is undercut by the lack of direct evidence tying him to any specific amount of heroin and the court’s reliance on uncorroborated hearsay statements. Our precedents and the guidelines, however, make clear that a trial court need not predicate its drug-weight finding on direct evidence. The record reveals that the court thoroughly considered the voluminous evidence bearing on the amount of heroin attributable to Minnick, ultimately arriving at 9.22 kilograms. In these circumstances, the court is satisfied that the court did not clearly err.

Affirmed.

United States v. Minnick, Appeal No. 17-4184, March 3, 2020. 4th Cir. (per curiam), from DMD at Greenbelt (Chuang). Derek Andrew Webb for Appellant, Zachary Byrne Stendig for Appellee. VLW 020-2-052. 13 pp.

VLW 020-2-052

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