United States of America v. Larry Cranston Brooks

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2097
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UNITED STATES OF AMERICA
v.
LARRY CRANSTON BROOKS,
Appellant.
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 08-cr-00167)
District Judge: Honorable Alan N. Bloch
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Submitted Under Third Circuit LAR 34.1(a)
November 5, 2009
Before: SCIRICA, Chief Judge, JORDAN and COWEN, Circuit Judges.
(Filed November 9, 2009)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Larry Cranston Brooks appeals from a judgment of conviction and sentence
entered by the United States District Court for the Western District of Pennsylvania
following Brooks’s conviction for conspiracy to possess and distribute less than 100
grams of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Brooks raises three

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issues on appeal. First, he contends that the District Court erred by denying his motion to
suppress intercepted wire communications. Second, he contends that the evidence
presented at trial was insufficient to convict him of conspiracy. And, third, he argues that
the District Court erred by refusing to instruct the jury that a buyer-seller relationship is
not, by itself, proof of a conspiracy. Because we find no merit in his arguments, we will
affirm.
I. Background
In March of 2007, the Drug Enforcement Agency (“DEA”) learned of a large-scale
criminal organization, headed by Albert Tyrone McAllister, that was responsible for
transporting heroin from New Jersey to Pittsburgh, Pennsylvania. The DEA learned
through surveillance that heroin was being stored at a “stash house” located at 630
Margaretta Street in Pittsburgh’s Braddock neighborhood. Further investigation revealed
that the stash house was owned by McAllister. The DEA also learned that McAllister’s
cousin, Darnell Jackson, received incoming shipments of heroin at the stash house, which
he then distributed in the Pittsburgh area.
Early in the investigation, the DEA used pen registers to track McAllister’s
dealings, but McAllister began changing cell phones frequently. Jackson, on the other
hand, never changed his cell phone number and often communicated with major targets of
the investigation. Accordingly, the DEA sought a Title III wiretap authorization for
Jackson’s cell phone by submitting to the District Court an application and accompanying

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1The affidavit in support of the application explained why several traditional
investigative techniques were of limited effectiveness due to the wide-ranging character
of the conspiracy. Specifically, the conspirators’ use of prepaid phones with no
subscriber information, the limited value of physical surveillance, the limited
effectiveness of search warrants, grand jury subpoenas and witness interviews and the
ineffectiveness of controlled buys were all cited as showing the necessity for the wiretap.
2This was done via renewal applications filed by the DEA on January 15, 2008 and
February 15, 2008. These applications contained essentially the same showing of
necessity as the first application.
3
affidavit specifying the need for the wiretap.1 The DEA was granted authorization to tap
Jackson’s phone and began doing so on December 17, 2007. The wiretap authorization
was renewed twice, 2 and Jackson’s phone was monitored until March 4, 2008.
Brooks came under scrutiny shortly after the DEA began tapping Jackson’s cell
phone. The conversations between Brooks and Jackson revealed that Brooks was both a
user and distributor of heroin. Working from the information obtained on the wiretap,
police observed Brooks and Jackson exchange large amounts of cash for large quantities
of heroin on multiple occassions. Sometimes those exchanges involved Jackson
extending credit to Brooks by “fronting” him heroin. During their phone conversations,
Brooks learned critical details about the roles, movements, and precautions taken by
higher-ups in the organization, including McAllister and the people who physically
transported heroin to Pittsburgh.
The conversations thus revealed a high level of mutual trust between the two men,
which was confirmed by other aspects of their relationship. Far from the treatment given
an ordinary drug purchaser, Brooks had priority status and was given special treatment by

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3References to “Tr. No.” are to the track numbers on the compact disc recording of the
conversations caught on the wiretap.
4
Jackson in a number of ways. On several occasions, Jackson agreed to “hold” heroin for
Brooks, meaning he promised not to sell it to anyone else. Jackson also alerted Brooks
when he was expecting a shipment of high quality heroin and promised to sell to Brooks
before anyone else, telling him “I’m gettin’ you first.” (Tr. No. 3818 at 2:32-3:09.)3 This
special treatment also included Jackson going out of his way to get Brooks the best
quality and price possible. During one conversation, Jackson even agreed to exchange a
better quality batch of heroin for a low-quality batch he had sold to Brooks.
In return, Jackson was given special treatment by Brooks as well. Brooks trusted
Jackson enough to make him his go-to source, telling him, “just always hold something
for me; I’ll buy the sh-- from you, dog.” (Tr. No. 2240 at 1:30-1:33.) On one occasion,
when Jackson’s heroin supply began to run dry, Brooks attempted to find someone who
would sell Jackson bulk quantities of heroin and offered to extend Jackson credit. During
that time, Brooks went so far as to reverse roles and send Jackson heroin to tide him over.
The conversations between Brooks and Jackson also revealed that Brooks bought
heroin from Jackson on behalf of Brooks’s nephew. Brooks discussed with Jackson the
price to be paid for that heroin, and, on more than one occasion, he attempted to ascertain
the quality of the heroin Jackson was receiving so that his nephew could determine how
much heroin to buy.
By the end of March 2008, the DEA was ready to dismantle the drug operation,

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and it executed a search warrant at the Braddock stash house in early April 2008. A
grand jury subsequently returned a one-count indictment charging Brooks with
conspiracy to possess and distribute less than 100 grams of heroin in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C). He was arrested the same day.
Before trial, Brooks filed a motion to suppress the intercepted wire
communications, arguing that the requirements set forth in 18 U.S.C. § 2518 had not been
satisfied. Specifically, he argued that the applications for wiretap authorization did not
contain sufficient facts to justify a wiretap and failed to show that other investigative
techniques had been, or were likely to be, insufficient. The District Court denied the
motion.
At trial, Brooks’s defense was that, although the evidence showed heroin
transactions between him and Jackson, there was not a sufficient basis to find him guilty
of conspiracy to distribute heroin. Accordingly, in his Requested Jury Instructions,
Brooks included a specific instruction entitled “Proof of Drug Transaction Does Not
Establish Conspiracy,” which read as follows:
Even if you believe that the evidence establishes that Larry Brooks either
bought heroin from or sold heroin to Darnell Jackson that does not, in and
of itself, amount to proof of an illegal agreement to distribute heroin
between the two individuals. Drug transactions are, by their very nature,
transactions between two people, and a drug transaction does not constitute
a conspiracy between those two people.
***
Thus, you must be satisfied, beyond a reasonable doubt, that the
Government has proved that the alleged transactions between Brooks and
Jackson are not simply buyer-seller transactions, but rather that they
involved each other in the common goal of distributing heroin to others. It

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must be proved that the conspirators had a mutual stake in the activities of
the other person that extended beyond any individual transactions. Even
should you find that the Defendant or Jackson was involved in distributing
heroin to others that alone does not prove that they entered into a mutual
agreement to do so. For example, a person who buys drugs from somebody
has not necessarily agreed to be a member of a larger conspiracy in which
the seller may be involved. Conversely, the mere fact that a person sells
drugs to a purchaser, who then resells those drugs to others, does not prove
that the original seller has conspired with his purchaser to distribute drugs.
You must be satisfied that the evidence has established, beyond a
reasonable doubt, the unity of purpose, intent to achieve a common goal and
agreement to work together toward that goal between the conspirators to
find Larry Brooks guilty of conspiracy. Otherwise, you must acquit him.
(App. at A25-26.)
The District Court refused to instruct the jury with the exact language requested by
Brooks, but it did indicate that Brooks’s instruction would be given “in other words.”
(App. at A160.) When Brooks’s attorney objected to the omission of Brooks’s requested
instruction, the Court reiterated that his request had been granted in other words. The
Court further informed Brooks’s attorney that he was free to present his defense theory to
the jury, which he did. Although the District Court allowed Brooks’s attorney to explain
his legal theory to the jury, it also rightly instructed the jury that, with respect to the
applicable law, the jury was to be guided only by the Court, not by the lawyers.
Specifically, the Court stated:
It is the Court’s job to decide what rules of law apply to the case. ... This is
the Court’s job. It is not the job of the lawyers. So while the lawyers may
have commented during the trial and in their arguments on some of these
rules, you are to be guided only by what the Court says about it.
(App. at A164.)

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4 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
518 U.S.C. § 2518(10)(a)(i)-(iii) permits any “aggrieved person to move to suppress the
contents of any wire or oral communication intercepted pursuant to that chapter.” An
“aggrieved person” is defined by 18 U.S.C. § 2510(11) as “a person who was a party to
any intercepted wire, oral, or electronic communication or a person against whom the
interception was directed.”
7
The jury convicted Brooks of conspiracy, as alleged in the indictment, and Brooks
timely filed this appeal.
II. Discussion4
A. Motion to Suppress
Brooks argues that his motion to suppress evidence of intercepted wire
communications should have been granted because the wiretap authorizations were issued
without a showing of necessity, as is required by 18 U.S.C. § 2518. 5 “We review de novo
the question of whether a full and complete statement of necessity for a wiretap was made
in the application. Once it is determined that the statement was made, we will review the
court’s determination of necessity for an abuse of discretion.” United States v. Phillips,
959 F.2d 1187, 1189 (3d Cir. 1992).
Pursuant to 18 U.S.C. § 2518(1)(c), an application for a wiretap order must
contain: “[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). Likewise, before
authorizing a wiretap, the authorizing judge must find that “normal investigative

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procedures have been tried and have failed or reasonably appear to be unlikely to succeed
if tried or to be too dangerous.” Id. § 2518(3)(c). However, the burden of proof imposed
on the government in this regard is “not great,” United States v. Armocida, 515 F.2d 29,
38 (3d Cir. 1975), and the government is not required to exhaust all other investigative
procedures before resorting to electronic surveillance. United States v. Williams, 124
F.3d 411, 418 (3d Cir. 1997). Rather, evidence that normal investigative techniques
reasonably appear unlikely to succeed if tried is sufficient. Id. When determining
whether that standard has been satisfied, “[t]he government’s showing is to be tested in a
practical and commonsense fashion.” United States v. McGlory, 968 F.2d 309, 345 (3d
Cir. 1992). Although mere generalities and conclusory statements will not suffice, “[t]he
government need only lay a factual predicate sufficient to inform the judge why other
methods of investigation are not sufficient.” Williams, 124 F.3d at 418; McGlory, 968
F.2d at 345. Finally, “a court may properly take into account affirmations which are
founded in part upon the experience of specially trained agents.” Williams, 124 F.3d at
418.
Brooks contends that the government’s wiretap applications were insufficient
because they contained mere generalities and did not set forth with sufficient specificity
the reasons why, in this particular investigation, ordinary investigative measures would
fail. He points to the fact that, at least initially, the government had substantial success by
using investigation methods other than wiretapping Jackson’s phone. And, while Brooks

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concedes that the government subsequently faced significant obstacles that frustrated the
progress of its investigation, he nonetheless maintains that the government should have
continued to use traditional methods of investigation, rather than “leapfrogg[ing] into the
invasive techniques of wiretapping.” (Appellant’s Op. Br. at 31.)
Contrary to Brooks’s allegations of generality, the record reveals that the three
wiretap applications demonstrated in sufficient detail that other techniques appeared
unlikely to succeed. The affidavits submitted with the applications explain why several
traditional investigative techniques were of limited effectiveness due to the size and
structure of the conspiracy. As mentioned earlier, the conspirators’ use of prepaid phones
with no subscriber information, the limited value of physical surveillance, the limited
effectiveness of search warrants, grand jury subpoenas and witness interviews, and the
ineffectiveness of controlled buys were all noted, and they suffice to demonstrate that a
wiretap was likely to succeed where other techniques had failed or would fail in gathering
essential information about the heroin distribution ring. Accordingly, we conclude that
the requirements of 18 U.S.C. § 2518 were satisfied and that the District Court did not err
in denying the motion to suppress.
B. Evidence of Conspiracy
Turning to whether the government offered sufficient evidence to support the
jury’s finding that Brooks was guilty of conspiracy to possess and distribute heroin, we
apply a particularly deferential standard of review. United States v. Dent, 149 F.3d 180,

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187 (3d Cir. 1998). We consider the evidence in the light most favorable to the
government and will uphold the conviction if any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. United States v. Gibbs,
190 F.3d 188, 197 (3d Cir. 1999).
To sustain a conviction for conspiracy, the government must establish: (1) a unity
of purpose between the alleged conspirators, (2) an intent to achieve a common goal, and
(3) an agreement to work together toward that goal. Id. Our Circuit has held that,
without more, a simple buyer-seller relationship is insufficient to establish that a buyer
was a member of the seller’s conspiracy. United States v. Pressler, 256 F.3d 144 (3d Cir.
2001); Gibbs, 190 F.3d at 197; United States v. Price, 13 F.3d 711, 727 (3d Cir. 1994).
However, we have also acknowledged that “even an occasional supplier (and by
implication an occasional buyer for redistribution) can be shown to be a member of the
conspiracy by evidence, direct or inferential, of knowledge that she or he was part of a
larger operation.” Gibbs, 190 F.3d at 198. In Gibbs, we articulated our approach to
conspiracy cases involving drug transactions as follows:
In cases where the defendant’s only involvement in the conspiracy appears
to be drug purchases, courts have looked to the surrounding circumstances
to determine whether the defendant is a mere buyer who had such limited
dealings with the conspiracy that he cannot be held to be a conspirator, or
whether he has knowledge of the conspiracy to the extent that his drug
purchases are circumstantial evidence of his intent to join that conspiracy.
Id. at 199.

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In making this determination, some of the factors courts have considered include:
the length of the affiliation between the defendant and the conspiracy; whether there is an
established method of payment; the extent to which transactions are standardized;
whether there is a demonstrated level of mutual trust; whether the buyer’s transactions
involved large amounts of drugs; and whether the buyer purchased drugs on credit. Id. at
199-200. Although these factors are not dispositive, “the presence of one or more of
these factors furthers the inference that the buyer knew he was part of a larger operation
and hence can be held responsible as a coconspirator.” United States v. Iglesias, 535 F.3d
150, 156 (3d Cir. 2008).
Brooks’s primary contention is that, even when viewed in the light most favorable
to the government, the evidence put forth at trial shows nothing more than a mere buyer-
seller relationship between himself and Jackson. The record, however, is to the contrary.
The government presented ample evidence of the various factors identified in Gibbs. In
addition to showing numerous drug transactions involving large amounts of heroin, the
government adduced other evidence demonstrating a high level of mutual trust between
Brooks and Jackson. Each gave the other special treatment. Jackson went out of his way
to get Brooks the best possible price and quality of heroin, sold heroin to Brooks before
anyone else, and placed drugs on hold for Brooks. In return, Brooks promised to buy
from Jackson in the future and even attempted to find Jackson a supplier when Jackson
had trouble obtaining heroin. Both men extended credit to each other. And Brooks

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served as a go-between in his nephew’s heroin transactions with Jackson. Based on this
evidence, a reasonable juror could have concluded that Brooks and at least one other
person shared the common goal of distributing heroin, the intent to achieve that goal, and
a tacit agreement to cooperate to achieve it.
C. Jury Instruction
Finally, we address Brooks’s argument that the District Court erred by refusing to
give the jury a proposed instruction on the buyer-seller relationship. We review de novo
a district court’s refusal to instruct the jury on a defense theory when, as in this case, the
defendant objected to the refusal to give the charge. United States v. Steward, 185 F.3d
112, 124 (3d Cir. 1999); see also United States v. Price, 13 F.3d 711, 724 (3d Cir. 1994)
(“We review de novo the legal sufficiency of jury instructions to which a defendant
objected, but so long as the court properly articulated the relevant legal criteria we review
the particular language used on an abuse of discretion standard.”).
In United States v. Hoffecker, we stated that: “A defendant is entitled to a theory of
defense instruction if (1) he proposes a correct statement of the law; (2) his theory is
supported by the evidence; (3) the theory of defense is not part of the charge; and (4) the
failure to include an instruction of the defendant’s theory would deny him a fair trial.”
530 F.3d 137, 176 (3d Cir. 2008). Accordingly, we have held that a District Court’s
refusal to give a proposed jury instruction amounts to reversible error only if the omitted
instruction is legally correct, not substantially covered by other instructions, and so

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important that its omission prejudiced the defendant. United States v. Urban, 404 F.3d
754, 779 (3d Cir. 2005); United States v. Davis, 183 F.3d 231, 250 (3d Cir. 1999).
Brooks contends that, while the District Court correctly stated the basic elements
of conspiracy, it erred because it did not address the particular defense theory that a
buyer-seller relationship is not, in and of it itself, proof of a conspiracy. He further
contends that without such an instruction the jury was led to believe that evidence of the
conversations between Jackson and Brooks suggesting drug sales would, without more,
suffice to establish a conspiracy between them. Again, his contentions are unpersuasive.
Although Brooks’s proposed instruction contained some correct statements of the
law, it also contained notable errors. For example, the proposed instruction provided that,
in order to find Brooks guilty, the jury had to find that “there was an agreement between
Brooks, Jackson, and others to distribute heroin to others.” That is not the law and may
have confused the jury by implying that Brooks, Jackson, and unspecified “others” all had
to be shown to be participants in a conspiracy, when the government only needed to show
that Brooks conspired with one other person to distribute heroin. See United States v.
Greenidge, 495 F.3d 85, 100 (3d Cir. 2007). Brooks’s proposed instructions also
incorrectly stated that “it must be proved that the conspirators had a mutual stake in the
activities of the other person that extended beyond any individual transactions.” In
actuality, “a conspirator’s stake in the venture is not an essential element of the crime of

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conspiracy.” United States v. McKee, 506 F.3d 225, 242 (3d Cir. 2007). Thus, Brooks
was not entitled to his jury instruction as drafted.
Brooks’s complaint that the jury should have been given a defense theory
instruction is also unwarranted because the essence of his theory did find support in an
instruction the District Court gave. The Court told the jury that “a person who has no
knowledge of the conspiracy but who happens to act in a way that advances some object
or purpose of the conspiracy” – as would be true of the buyer in a simple buyer-seller
transaction – “does not thereby become a member of the conspiracy.” (App. at A176-77.)
Given that the “district court has substantial discretion with respect to specific wording of
jury instructions and need not give [a] proposed instruction if [its] essential points are
covered by those that are given,” see Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir.
1995) (citations omitted), and since a defendant “is not entitled to prescribe exact
language of” a theory-of-defense instruction, the instruction the Court gave was more
than adequate to accomodate the defense theory of the case. Id. At the invitation of the
Court, Brooks’s counsel argued that theory to the jury without any objection by the
government. There was, in short, a foundation in the instructions for the argument, and
Brooks, through counsel, made it. There was thus no error in the District Court’s
handling of Brooks’s request for a defense theory instruction.
III. Conclusion

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The District Court properly denied Brooks’s motion to suppress and did not err in
refusing to adopt Brooks’s language for a defense theory jury instruction. Further, the
evidence presented at trial was sufficient for a reasonable trier of fact to conclude that
Brooks was guilty of conspiracy to distribute heroin, as charged. We will therefore affirm
the judgment of the District Court.

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