                                                       [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT            FILED
                    ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                          No. 05-11745                   MARCH 20, 2006
                      Non-Argument Calendar             THOMAS K. KAHN
                                                            CLERK
                    ________________________

                D. C. Docket No. 04-20203-CR-DMM

UNITED STATES OF AMERICA,


                                                 Plaintiff-Appellee,

                                versus

FABIAN CORRIETTE,
a.k.a. Fabe,
a.k.a. Fave,
DARRAN LAMAR MOORE,
a.k.a. Black,
a.k.a. D,


                                                 Defendants-Appellants.


                    ________________________

             Appeals from the United States District Court
                 for the Southern District of Florida
                   _________________________

                         (March 20, 2006)
Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

      Appellants Fabian Corriette and Darran Lamar Moore appeal their

convictions for conspiracy to possess with intent to distribute 5 kilograms or more

of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A)(ii), (iii) and 846. Moore also appeals his sentence. After

review, we affirm.

                               I. BACKGROUND

      The Federal Bureau of Investigation began investigating a large drug

distribution operation that sold cocaine and crack from “drug holes” in the Carol

City area of Miami. Allen Ross was the initial target of the investigation, which

involved surveillance, confidential informants and wiretaps. The investigation

resulted in a 24-defendant indictment, including Ross and Appellants Corriette and

Moore. Ross pled guilty and agreed to cooperate with the government and testify

against Corriette and Moore.

      At trial, Ross testified to his dealings with Appellants Corriette and Moore

during the drug conspiracy. The district court also admitted evidence of

wiretapped telephone conversations among various members of the drug

conspiracy, including Ross, Corriette and Moore, and evidence of Corriette’s and



                                          2
Moore’s prior drug convictions. The jury found Corriette and Moore guilty. The

district court sentenced Corriette to 121 months’ imprisonment and Moore to life

imprisonment. This appeal followed.

                                      II. DISCUSSION

A.     Motion to Suppress Wiretap Evidence

       On appeal, Corriette and Moore challenge the district court’s denial of their

motion to suppress the wiretap evidence.1 An application to intercept wire

communications submitted to a judge must be authorized by one of the officials

listed in 18 U.S.C. § 2516. This list includes “any Deputy Assistant Attorney

General . . . in the Criminal Division specially designated by the Attorney

General.” See 18 U.S.C. § 2516(1). In Order No. 2407-2001, the Attorney

General specially designated “any Deputy Assistant Attorney General of the

Criminal Division” to authorize wiretap applications. Here, the wiretap

applications were authorized by Bruce Swartz, the Deputy Assistant Attorney

General of the Criminal Division. Thus, the wiretap applications were authorized

by an official designated in § 2516(1).



       1
         We review de novo the legal sufficiency of a wiretap application presented to a district
court. See United States v. Butler, 102 F.3d 1191, 1198 (11th Cir. 1997) (reviewing de novo the
sufficiency of an affidavit supporting a search warrant). We review the district court’s failure to
grant an evidentiary hearing on a motion to suppress for an abuse of discretion. United States v.
Cooper, 203 F.3d 1279, 1285 (11th Cir. 2000).

                                                3
      Appellants argue that Swartz’s wiretap authorizations were flawed because

Swartz’s signatures were affixed with a rubber stamp. On the two authorization

memoranda, Swartz’s signatures appear above the stamp bearing his name and

title. The two signatures are visibly different from each other and one signature

overlaps the stamp while the other does not. Even a cursory review of these

signatures indicates that they were not affixed with a rubber stamp.

      Appellants stress that the memoranda appear to have been authored by

and/or prepared for the signature of Christopher Wray, the Acting Assistant

Attorney General in the Criminal Division. We see no material significance to the

fact that Wray’s name also appears on the memoranda because Wray’s signature

lines remained blank. Swartz’s signature, name and title appeared below Wray’s

signature lines. Thus, Swartz did not sign for Wray, but for himself, and Swartz

was one of the designated officials who may authorize a wiretap application.

      We also reject Appellants’ contention that the wiretaps were not necessary.

An application for an order authorizing a wiretap must include “a full and complete

statement as to whether or not other investigative procedures have been tried and

failed or why they reasonably appear to be unlikely to succeed if tried or to be too

dangerous.” 18 U.S.C. § 2518(1)(c). The affidavit supporting an application need

not show a “comprehensive exhaustion of all possible techniques,” but need



                                          4
explain only the failure of those techniques “that reasonably suggest themselves.”

United State v. Van Horn, 789 F.2d 1492, 1496 (11 th Cir. 1986).

      Here, the government’s statements attached to the wiretap applications were

sufficient. In the affidavits attached to the applications, FBI Special Agent Kevin

O’Rourke accounted for the failure of multiple alternative techniques, including (1)

confidential sources, (2) surveillance, (3) pen register analysis, (4) grand jury

subpoenas, (5) undercover agents, (6) search warrants, (7) interviews of the targets,

and (8) “trash pulls.” Agent O’Rourke specifically stated that the confidential

sources were unlikely to ascertain the scope of the conspiracy or the identities of

the participants as none were trusted members of the organization in whom Ross

would confide. Surveillance also had failed, as lookouts spotted the officers

conducting the surveillance. The second affidavit seeking continued authorization

noted that the wiretap had yielded recordings of Ross discussing his observation of

police officers attempting surveillance.

      Finally, the Appellants have not shown that the district court erred by not

holding a hearing. A motion to suppress “must allege facts which, if proven,

would provide a basis for relief. A court need not act upon general or conclusory

assertions founded on mere suspicion or conjecture, and the court has discretion in

determining the need for a hearing.” United States v. Richardson, 764 F.2d 1514,



                                           5
1527 (11 th Cir. 1985) (citation omitted). The only specific factual allegation

contained in Appellants’ motion to suppress dealt with the government’s failure to

have the authorization memoranda signed. As noted above, that contention is

clearly without merit. The remainder of the motion contained legal arguments and

conclusory statements. Therefore, the district court did not abuse its discretion in

not holding a hearing.

       We conclude that Appellants have shown no reversible error in the district

court’s denial of Appellants’ motion to suppress.

B.     Admission of Prior Convictions

       During its case in chief, the government introduced evidence that Corriette

and Moore each had a prior cocaine conviction. Appellants have not shown that

the district court abused its discretion in admitting their prior convictions under

Rule 404(b).2

       To be admissible under Rule 404(b), the extrinsic offense: (1) must be

relevant to an issue other than the defendant’s character; (2) must be proved; and

(3) must possess probative value that is not substantially outweighed by its undue

       2
         Federal Rule of Evidence 404(b) provides in relevant part that:
        [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character
        of a person in order to show action in conformity therewith. It may, however, be
        admissible for other purposes, such as proof of motive, opportunity, intent,
        preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b). We review a district court’s admission of Rule 404(b) evidence for abuse of
discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).

                                               6
prejudice and must meet the other requirements of Rule 403.3 United States v.

Matthews, 431 F.3d 1296, 1310-11 (11 th Cir. 2005).

       First, Appellants were charged with conspiracy and pled not guilty, making

intent a material issue. See id. at 1311 (concluding that, in the context of a

conspiracy charge, when the defendant pleads not guilty, he makes his intent a

material issue satisfying the first prong of the Rule 404(b) test); United States v.

Delgado, 56 F.3d 1357, 1365-66 (11 th Cir. 1995). Second, Appellants do not

dispute that the government proved their prior cocaine convictions. Third,

Appellants have not shown that the probative value was substantially outweighed

by undue prejudice. In fact, the government showed a need for the prior conviction

evidence, and the district court gave a limiting instruction. See Matthews, 431

F.3d at 1312; United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11 th Cir. 1993).

C.     “Buyer/Seller” Jury Instruction

       Moore argues that the district court erred in refusing to give the jury a

“buyer/seller” instruction.4 “Even if a requested jury instruction is proper, the trial

court has some discretion in framing the instruction. If the charge to the jury

adequately and correctly covers the substance of the requested instruction, there is


       3
           Apellants do not contend that the other requirements of Rule 403 have not been met.
       4
         “We review a district court’s refusal to give a requested jury instruction for abuse of
discretion.” United States v. Trujillo, 146 F.3d 838, 846 (11th Cir. 1998).

                                                  7
no reversible error.” United States v. Lively, 803 F.2d 1124, 1128 (11 th Cir. 1986)

(affirming district court’s refusal to give a “buyer/seller” instruction where the

district court had instructed the jury on the elements of a drug conspiracy).

      Here, the district court gave a pattern jury instruction on drug conspiracy

that instructed the jury on the elements of the crime. As in Lively, the drug

conspiracy instruction adequately addressed the substance of Moore’s requested

“buyer/seller” instruction because it noted that a single act does not constitute

participation in the conspiracy. See id. at 1128-29. Therefore, the district court did

not abuse its discretion when it refused to give Moore’s requested “buyer/seller”

instruction.

D.    Cumulative Effect of Evidentiary Rulings

      Moore also argues that the cumulative prejudice of several of the district

court’s evidentiary rulings warrants reversal of his conviction. Specifically, Moore

points to: (1) the failure to correct “improper innuendo” due to a witness’s

reference to the indictment; (2) the admission of hearsay statements; and (3) the

admission of his prior cocaine trafficking conviction. As discussed above, the

prior conviction was admissible. We also conclude that the district court did not

err with regard to the other evidentiary rulings Moore relies upon.

      As to the indictment reference, Danny Maynard, one of Moore’s co-



                                           8
defendants who pled guilty, testified for the government during the trial. The

government asked Maynard whether he knew any other individuals named in the

indictment. Moore objected, arguing that it was improper to ask with whom

Maynard had been indicted, and requested a limiting instruction. Instead, the

district court asked the government to rephrase its question. The government then

asked Maynard whether he knew the various people in his case. Moore objected

again, but was overruled.

       On appeal, Moore contends that the district court should have given a

limiting instruction to remedy the government’s reference to the indictment.

However, Moore does not explain how the reference to the indictment was

improper or prejudiced him. More importantly, at the outset of the case, the jury

was instructed that the indictment was only an accusation and was not proof of

guilt. The district court later reiterated that point during its jury instructions. The

district court’s failure to give a limiting instruction as a result of this stray

reference to the indictment was not error. See United States v. Snyder, 291 F.3d

1291, 1294 (11 th Cir. 2002) (concluding that district court did not abuse its

discretion in denying defendant’s motion for a mistrial after prosecutor questioned

witness about the defendant’s indictment).

       As to the hearsay issue, Ross testified about conversations that he had with



                                             9
other suppliers and sellers of drugs with whom he directly did business even

though Moore was not present during the conversations. The government contends

that it showed a drug conspiracy and that the district court properly admitted

Ross’s testimony as non-hearsay co-conspirator statements under Rule

801(d)(2)(E).

       Under Rule 801, statements of co-conspirators made during the course and

in the furtherance of the conspiracy are not hearsay. See Fed. R. Evid.

801(d)(2)(E). To admit evidence under Rule 801(d)(2)(E), the government must

show by a preponderance of the evidence that “(1) a conspiracy existed; (2) the

conspiracy included the declarant and the defendant against whom the statement is

offered; and (3) the statement was made during the course and in furtherance of the

conspiracy.” United States v. Hasner, 340 F.3d 1261, 1274 (11 th Cir. 2003).5

       On appeal, Moore contends that Ross’s testimony was inadmissible hearsay

because the government failed to show that the declarants of the out-of-court

statements were members of the drug conspiracy charged in the indictment. We

disagree. First, much of Ross’s challenged testimony concerned conduct of

       5
         We review a district court’s decision to admit statements of co-conspirators under Rule
801(d)(2)(E) for abuse of discretion. Hasner, 340 F.3d at 1274. We review for clear error whether
a statement was made in furtherance of a conspiracy. United States v. Byrom, 910 F.2d 725, 734
(11th Cir. 1990).
        The government’s brief points out that Moore’s brief fails to identify sufficiently the hearsay
statements that the district court improperly admitted except in one or two instances. We need not
address this issue as we discern no reversible error in any event.

                                                  10
purported co-conspirators and not statements by them and thus is not hearsay.

Second, Ross testified that Moore gave him (1) money to purchase cocaine from

suppliers, which Ross then distributed, and (2) “cut,” which Ross used in

repackaging the cocaine for resale. The declarants of the out-of-court statements to

which Ross testified also either supplied Ross with cocaine or “cut” or sold cocaine

that Ross provided. Based on this testimony, there was some evidence that the out-

of-court declarants were involved in an existing conspiracy to distribute cocaine

involving Ross and Moore and that Ross’s conversations with the declarants were

made in furtherance of that conspiracy. Therefore, the district court did not err in

admitting Ross’s testimony about conversations he had with other co-conspirators.

       Alternatively, even assuming there was insufficient evidence linking the

declarants to the charged conspiracy, the admission of the statements was harmless

error.6 The statements did not incriminate Moore. Furthermore, the government’s

evidence of Moore’s guilt was substantial given the significant wiretap evidence

and the testimony of co-conspirators Ross and Maynard. Under these

circumstances, we cannot say that the admission of the particular statements at

issue here had a substantial influence on the outcome of the trial.


       6
         We will not reverse an erroneous evidentiary ruling that is harmless. United States v.
Dickerson, 248 F.3d 1036, 1048 (11th Cir. 2001) An error is harmless if it “had no substantial
influence on the outcome and sufficient evidence uninfected by error supports the verdict.” Id.
(citation and internal quotation marks omitted).

                                              11
      E.     Moore’s Sentence

      Moore contends that the government failed to give adequate notice of its

intent to seek a life sentence. Under 21 U.S.C. § 841(b)(1)(A), when a defendant is

convicted of violating 21 U.S.C. § 846 and has two prior convictions for felony

drug offenses, the defendant faces a mandatory life sentence. 21 U.S.C. §§

841(b)(1)(A) & 846. Before the government may seek that life sentence, it must

(1) file an information and serve a copy of such information on the defendant or his

counsel; and (2) provide notice to the defendant specifying the defendant’s

previous convictions before the trial commences or the defendant enters a guilty

plea. See 21 U.S.C. § 851(a)(1). Moore claims that the government’s § 851 notice

was deficient because it identified one of his two prior felony drug convictions by

the wrong case number.7

      The government’s § 851 notice stated that Moore had been convicted on or

about February 18, 1992 in the Nineteen Judicial Circuit of Florida for trafficking

in cocaine, case number 91-000766-FA. The correct case number was 91-758CFC.

Moore does not dispute that he was convicted of cocaine trafficking in the

Nineteenth Judicial Circuit of Florida on the specified date and does not allege any

confusion as to what conviction the government was referring, despite the incorrect


       7
        We review the adequacy of a § 851 notice de novo. United States v. McLean, 138 F.3d
1398, 1406 (11th Cir. 1998).

                                            12
case number. We conclude that the information contained in the § 851 notice was

sufficient to indicate unambiguously the prior conviction on which the government

would rely in seeking the enhanced sentence. See Perez v. United States, 249 F.3d

1261, 1266-67 (11 th Cir. 2001) (concluding that § 851 notice was sufficient where

government identified prior conviction, but erroneously stated the wrong year for

the conviction).8

       We also reject Moore’s contention that the § 851 notice was inadequate

because the government cited all three sentencing provisions of 21 U.S.C. § 841.

The government included a citation to 21 U.S.C. § 841(b)(1)(A), which was

sufficient to put Moore on notice that he faced a possible mandatory life sentence

upon conviction.

       For all of these reasons, we affirm the convictions and sentences of Corriette

and Moore.

       AFFIRMED.




       8
          In Perez, the government’s § 851 notice correctly listed the prior conviction as being a
cocaine conviction in Florida. The notice also correctly identified the day and month of the
conviction, but identified the year as 1992, when it was in fact 1991. Perez, 249 F.3d at 1263. We
concluded that the government’s notice “satisfied the requirements of § 851(a)(1).” Id. at 1266. In
Moore’s case, the § 851 notice correctly listed the offense as cocaine trafficking, the jurisdictional
district in Florida and the date of conviction. Given all of these items were correct and given Perez,
we cannot say here that the § 851 notice with a wrong case number was insufficient.

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