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United States v. Nagi

United States Court of Appeals, Sixth Circuit

September 30, 2013

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
AREF NAGI, MICHAEL CICCHETTI, GARY BALL, JR., LEONARD MOORE, JOSEPH WHITING, and ANTHONY CLARK, Defendants-Appellants

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges.

SILER, Circuit Judge.

Aref "Steve" Nagi, Michael "Cocoa" Cicchetti, Gary "Junior" Ball, Leonard "Dad" Moore, Joseph "Little Joe" Whiting, and Anthony "Mad Anthony" Clark members of the Highwaymen Motorcycle Club were charged and convicted of numerous crimes, including violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §1962(c); RICO conspiracy, 18 U.S.C. § 1962(d); Violent Crimes in Aid of Racketeering ("VICAR"), 18 U.S.C. § 1959(a)(3); drug conspiracy, 21 U.S.C. § 846; conspiracy to transport stolen motor vehicles, 18 U.S.C. §§ 2312 and 371; conspiracy to alter or remove vehicle identification numbers, 18 U.S.C. §§ 511 and 371; and the illegal use of firearms, 18 U.S.C. § 924(c). They appeal their convictions and sentences on various grounds. For the following reasons, we AFFIRM IN PART, REVERSE IN PART, and REMAND for further proceedings.

I.

The Highwaymen Motorcycle Club ("HMC") is a multi-state organization with its national headquarters located in Detroit, Michigan. In its prime, HMC included approximately ten chapters, mostly in and around Detroit. Each chapter, with its own officers and internal leadership structure, operated within the hierarchy of the organization as a whole. Members earned their HMC "colors" after going through a probationary period and could earn lightning rods a symbol worn on the HMC vest by committing various types of criminal activity in the interest of the Club.

Illegal drugs were common within the HMC. Trial testimony suggested that many members did not hold regular jobs and met their obligation to pay weekly dues by selling drugs. Nagi, for instance, sold cocaine and marijuana. Cicchetti purchased cocaine from HMC member Gerald Peters both for distribution and personal use. On multiple occasions, Cicchetti brought his work crew to the HMC clubhouse so that they could obtain cocaine there. Robert Burton, a major cocaine dealer, testified that Defendant Ball was as big a cocaine distributor as himself. Clark worked with HMC member Daniel Sanchez to sell drugs. And Moore and Whiting, as senior members of the HMC, often received free cocaine from other HMC members.

HMC members also were involved in the theft and resale of motorcycles. During "bike week" in Myrtle Beach, South Carolina, HMC members including Nagi and Ball stole motorcycles and transported them back to Detroit via U-Haul. Later, some of the stolen bikes were found in the possession of HMC members. While executing a search warrant at Ball's family business, "Pal's Auto, " agents found numerous stolen motorcycles and cars with altered vehicle identification numbers. Trial testimony revealed that Cicchetti, Ball, and Whiting all possessed vehicles with altered VINs.

The HMC also has a history of violent acts. Many of the group's violent acts were done to further the Club's criminal enterprise and to protect the authority and reputation of the HMC amongst rival gangs. For example, in 2003, HMC member Burton attempted to buy cocaine from Ruben Guzman. When Guzman's cocaine broker refused to proceed with the deal, Guzman kept the money that Burton had already given him. In retaliation, Burton and fellow HMC members pistol-whipped and robbed Guzman before locking him inside the trunk of a car and driving away. Guzman, was able to escape by activating the trunk's emergency release.

Highly relevant to this case is a 2005 incident at a Detroit-area bar called the Wheat & Rye. Following an altercation at another bar, several HMC members assaulted Alan Kirchoff at the Wheat & Rye by punching him and breaking glass bottles over his head. HMC member Erick Manners brandished a gun, pointed it at Kirchoff, and proceeded to fire two rounds into the ceiling. Police officers who responded to the scene pursued a black pick-up truck that was speeding away from the bar. The truck came to a stop on a dead-end street and officers observed an individual running away from the driver's side of the truck. When the officers approached the truck, they observed Defendants Cicchetti and Nagi still inside, along with a Highwaymen vest in the cab. A Glock pistol with hollow point bullets was located on the ground nearby, although law enforcement officials determined that it was not the gun that was fired inside the Wheat & Rye. Wiretapped telephone conversations between Nagi and Bo Moore, "Dad" Moore's son and fellow HMC member, confirmed Nagi's and Cicchetti's involvement in the incident.

In 2006, some HMC members suspected that Gerald Deese had stolen their property. Burton encouraged HMC members to confront Deese. They did so, striking him with a shovel handle until he lost consciousness. Later, in an effort to dissuade Deese from pressing charges, Whiting and Dad Moore arranged for Deese to receive several thousand dollars in cash.

Later in 2006, a rival gang called the Latin Counts learned that the FBI was investigating both the Counts and the HMC. Believing that HMC member Doug Burnett was the informant, Whiting, who was the HMC national president at the time, sanctioned the elimination of Burnett by either the Counts or HMC members. Burnett's picture was displayed in the HMC clubhouse along with the caption "rat." Whiting, along with Detroit Chapter president Ronald Hatmaker, offered a bounty on Burnett's life, as well as a reward of time away from HMC business.

II. The district court properly denied Nagi's motion to suppress wiretapped conversations, as well as his request for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978).

During its investigation, the government obtained multiple Title III wiretap orders, authorizing the interception of thousands of telephone calls among HMC members. One such order, and extensions thereof, authorized the interception of Nagi's telephone number from October 2005 through May 2006. Prior to trial, Nagi unsuccessfully moved on various grounds to suppress the intercepted calls. While we review the district court's factual findings for clear error and its legal conclusions de novo, United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002), the issuing judge's determination with respect to an electronic surveillance order is entitled to significant deference. United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000).

Nagi argues that the wiretaps did not meet the necessity requirement of 18 U.S.C. § 2518(1)(c).[1] Specifically, he argues that the affidavits used to obtain judicial authorization did not establish that less intrusive investigatory techniques were insufficient to meet law enforcement needs. However, law enforcement officials are required only to "give serious consideration to the non-wiretap techniques prior to applying for wiretap authority" and inform the court of the reasons for their belief that non-wiretap techniques "have been or will likely be inadequate." Stewart, 306 F.3d at 305 (quoting United States v. Lambert, 771 F.2d 83, 91 (6th Cir. 1985)). The initial electronic surveillance affidavit detailed the reasons officials believed that a wiretap was necessary. It stated that while three confidential informants had been used, they had not shed light on all of the participants in the conspiracy. It also explained that at least one informant was reluctant to wear a wire due to safety concerns. Further, traditional surveillance techniques were hampered by counter-surveillance techniques employed by the HMC.

Nagi also argues that the government failed to minimize the intercepted calls to avoid unnecessary intrusion on private, non-criminal conversations, as required by 18 U.S.C. § 2518(5). However, defendants seeking to suppress wiretapped phone conversations must do more than identify particular calls that should not have been intercepted "they must establish a pattern of interception of innocent conversations which developed over the period of the wiretap." United States v. Lawson, 780 F.2d 535, 540 (6th Cir. 1985). The burden of persuasion with respect to minimization rests with Nagi. See United States v. Giacalone, 853 F.2d 470, 482 (6th Cir. 1988). He has failed to make the requisite showing.

The wiretap orders at issue state:
All of the interceptions will be minimized in accordance with Chapter 119, Title 18, United States Code. Interceptions will be minimized when it is determined through voice identification, physical surveillance or otherwise that none of the named interceptees or their confederates, when identified, are participants in the conversation, unless it is determined the conversation is criminal in nature.

At a February 2010 hearing, the government described in detail the minimization procedures it employed. Nagi fails to identify any particular conversations that should not have been monitored, stating only that "[i]t does not appear as if minimization consistent with the statute and case law took place." He relies on statistical data alone, claiming that when viewed in light of the low number of calls involving crime, an unreasonable percentage of calls was minimized. He goes on to state that some of the intercepted conversations were "personal" and did not relate to targets of the investigation. These conclusory arguments simply are insufficient to mandate reversal of the district court's denial of his motion to suppress the phone calls.

Finally, Nagi argues that the intercepted calls should have been suppressed because the government did not provide sealing orders during discovery. As Nagi points out, "[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions." 18 U.S.C. § 2518(8)(a).

Nagi implies that the government delayed in making the recordings at issue available to the judges who issued the wiretap orders. His express complaint, however, is that the government should have provided him with the sealing orders issued by the judges after the recordings were made available to them. In response to Nagi's motion to suppress, the government explained that "housekeeping items" such as sealing orders ordinarily are not provided in discovery. Nonetheless, the government provided the orders to Nagi upon his request. Nagi has failed to identify any prejudice resulting from the government's alleged delay in providing the sealing orders to him. Accordingly, his argument with respect to the sealing orders is without merit.

Nagi also fails to demonstrate that the district court erred in denying him a hearing under Franks v. Delaware, 438 U.S. 154 (1978). To mandate an evidentiary hearing under Franks, "[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth." Id. at 171. Further, the allegedly false statement must have been necessary to the finding of probable cause for the wiretap order. Id. at 155-56. Other than the arguments outlined above, Nagi identifies no deficiencies with respect to the wiretap orders or the ...


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