## Facts

- Federal investigators investigated a drug-trafficking organization operating in and around Washington, D.C., distributing heroin, cocaine, cocaine base, and PCP.
- The investigation began in or around 2003 and used physical surveillance, confidential-source work, and court-authorized wiretaps.
- In February 2004, agents obtained authorization to wiretap Frederick Miller’s cell phone and later obtained authorization to wiretap three phones associated with Gerald Eiland; intercepted calls produced significant evidence despite coded language and use of other phones.
- A multi-defendant superseding indictment charged 21 people in a large, multi-count case; most defendants pleaded guilty, and the remaining defendants were tried in two trials. This appeal followed the second trial involving Eiland and Miller.
- The government portrayed Eiland and Miller as high-level participants in the organization. As to Miller, the government sought to prove he participated in a continuing criminal enterprise (CCE) under 21 U.S.C. § 848.
- The CCE theory relied on Miller’s dealings with several individuals, including:
  - Tyrone and Timothy Thomas, whom Miller allegedly organized to transport drug-purchase money and cocaine across state lines and whom he directed during efforts to recover a lost cocaine shipment;
  - Charles Brown, whom Miller allegedly directed to assist the Thomases in recovering the lost shipment;
  - Darius Ames, who on a few occasions received drug money from Miller and was directed where to go while acting as Eiland’s “gofer”; and
  - Jay Ingram (Miller’s cousin), whom an agent described as a lieutenant who obtained PCP from Miller; agents also had evidence placing Ingram with Miller and Eiland during the conspiracy period.
- The jury convicted both defendants of multiple narcotics-related offenses. It convicted Miller on CCE counts tied to the Thomases, Brown, and Ames. The jury acquitted Miller on the substantive PCP count involving Ingram but nonetheless found Miller guilty of supervising Ingram’s drug-related activities for CCE purposes.
- The district court imposed substantial sentences; Eiland also received a monetary fine. Eiland and Miller appealed, raising sufficiency, evidentiary, wiretap, and sentencing challenges.

## Issues

1. Whether the evidence was sufficient to support Miller’s CCE conviction under 21 U.S.C. § 848, including proof that he organized, supervised, or managed five or more persons.
2. Whether the district court adequately supported the fine imposed on Eiland, including consideration of the required sentencing factors and ability to pay.
3. Whether other trial rulings (including wiretap-related challenges and evidentiary objections) required reversal of the remaining convictions.

## Decision

- The court vacated Miller’s CCE conviction because the government’s proof did not sufficiently establish the statute’s “organizer/supervisor/manager of five or more persons” requirement.
- Because the CCE conviction was set aside, the court reinstated a narcotics-conspiracy conviction that had been treated as a lesser-included offense and remanded Miller’s case for resentencing on the remaining counts.
- The court vacated the fine imposed on Eiland and remanded for the district court to reconsider whether a fine was warranted and, if so, in what amount.
- The court otherwise affirmed the remaining convictions and rejected most of the additional trial and sentencing challenges, including suppression arguments aimed at the wiretap evidence.

## Legal Principles

- A CCE conviction under 21 U.S.C. § 848 requires proof of: (1) a felony drug violation, (2) as part of a continuing series of violations, (3) committed in concert with five or more persons, (4) for whom the defendant acted as an organizer, supervisor, or manager, and (5) from which the defendant derived substantial income or resources.
- The “organizer/supervisor/manager” element requires evidence of a qualifying managerial relationship with at least five people; proof that a defendant participated in, or even helped lead, a large drug conspiracy does not by itself satisfy § 848 without adequate proof of supervision or management of five individuals.
- When a CCE conviction is vacated and a related conspiracy count was not entered because it was treated as a lesser-included offense, the conspiracy conviction may be reinstated and the defendant resentenced on the remaining counts.
- A criminal fine must be supported by a sentencing record that reflects consideration of the statutory and Guidelines factors, including the defendant’s financial resources and ability to pay; where that support is lacking, the fine may be vacated and remanded for reconsideration without disturbing otherwise valid convictions.

## Conclusion

The D.C. Circuit held that the evidence did not sufficiently prove that Miller organized, supervised, or managed five or more persons as required for a CCE conviction, so it vacated the CCE count, reinstated the related drug-conspiracy conviction, and remanded for resentencing; it also vacated Eiland’s fine for further consideration while affirming the remaining convictions and most other rulings.


United States v. Eiland, 738 F. 3d 338 (2013)