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United States of America v. Bernard Nmn Gaines, Aka Smiley

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Submitted: October 21, 2010

Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

Bernard Gaines and Jerry Dubose, along with twelve others, were indicted for their alleged involvement in a conspiracy to distribute cocaine and crack cocaine. Ultimately, Gaines pleaded guilty and, subsequently, testified against Dubose, who elected to stand trial. Prior to his trial, Dubose moved to suppress recordings of wiretapped telephone conversations that he had with his alleged coconspirators, arguing that the recordings were obtained in violation of his rights under the Fourth Amendment because the initial wiretap application and resulting order failed to particularly identify all potential conversants who might be overheard on the wiretapped phone line. The district court*fn1 denied Dubose’s motion, and, following a two-day trial at which Gaines testified, a jury found Dubose guilty. Thereafter, at Gaines’s sentencing, the district court found Gaines to be a “manager or supervisor” of the drug conspiracy under U.S.S.G. § 3B1.1(b) and applied a three-level enhancement to his base-offense level pursuant to that provision. Gaines and Dubose appeal. Gaines appeals the district court’s determination that he was a manager or supervisor of the conspiracy, and Dubose appeals the district court’s denial of his pretrial motion to suppress. We affirm both judgments.

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