Motion to suppress evidence seized under a wiretap warrant; Denial of a Franks v Delaware hearing; Law enforcement trial testimony under FRE 701; Shackling during trial; Sufficiency of the evidence for convictions of possession with intent to distribute 50 grams or more of meth & conspiracy to do so; Sentencing; Enhancement under 21 USC §§ 841(b)(1)(A) & 851; Predicate offense

The court held that there was sufficient evidence to support defendants-Reed’s and Swanagan’s convictions of possession with intent to distribute meth and conspiracy to do so. It also upheld Swanagan’s sentence. But it vacated Reed’s sentence on the basis the district court erred by relying on a prior Kentucky conviction as a predicate for the §§ 841 and 851 sentence enhancement. On appeal, Swanagan challenged the district court’s denial of a Franks hearing on his motion to suppress evidence. The court found that he failed to make a preliminary showing that the affidavit supporting the wiretap warrant contained “intentionally or recklessly false” statements. Both defendants challenged law enforcement officers’ lay opinion trial testimony about the wire-tapped phone calls. The court held that the government established a foundation for one officer’s testimony and the officer “spoke from her personal perspective and knowledge about the evidence based on her direct involvement with the Swanagan investigation and the wiretap.” Likewise, the other officer “testified based on his own personal knowledge of the investigation and experience monitoring the wiretap, and the government laid that foundation.” While some of that officer’s “testimony was potentially problematic” because it “presumed” defendants’ guilt, “mitigating factors weaken[ed] the argument that any error in admitting” the testimony was clear or obvious, or affected their substantial rights. Reed’s claim that the district court should have held a hearing about the shackling of defendants during the trial failed where it was unclear whether his restraints were visible to the jury, and the district court had not ordered the use of physical restraints. The court also rejected defendants’ claim the participation of jurors who saw them in shackles and prison attire in the courthouse lobby violated their constitutional rights. Defendants failed “in their circular and unsupported argument that the jurors lied about being prejudiced and therefore were prejudiced.” The court next held that there was sufficient evidence to support defendants’ convictions. Reed was sentenced to 300 months and Swanagan to 360 months. The court concluded that Swanagan “failed to show that the district court abused its discretion in imposing his sentence.” But the parties were correct that it should not have treated Reed’s prior Kentucky first-degree burglary “conviction as a ‘serious violent felony.’” Affirmed in part, vacated as to Reed’s sentence, and remanded for his resentencing.