                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-4609



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DAMON BRIGHTMAN,

                                               Defendant - Appellant.


                               No. 05-4612



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DONALD VANDERHORST,

                                               Defendant - Appellant.


Appeals from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (CR-03-627)


Submitted:   August 27, 2007              Decided:   September 5, 2007


Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.


Michael S. Seekings, John F. Martin, Charleston, South Carolina,
for Appellants. Reginald I. Lloyd, United States Attorney, Carlton
R. Bourne, Jr., Assistant United States Attorney, Charleston, South
Carolina, for Appellee.




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PER CURIAM:

          In February and March of 2001, the Drug Enforcement

Administration obtained orders authorizing wiretaps of two phones

used by subjects suspected of distributing cocaine in the North

Charleston, South Carolina area.    The intercepted communications

demonstrated Appellants Damon Brightman and Donald Vanderhorst’s

involvement in the cocaine distribution, and they were each charged

with one count of conspiracy to possess with intent to distribute

five kilograms or more of cocaine and fifty grams or more of

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),(b)(1) (2000).

Prior to trial, Brightman moved to suppress the second wiretap.

The district court denied the motion to suppress.

          During the course of Brightman and Vanderhorst’s trial,

a letter was discovered being passed between two witnesses housed

in the detention center.   Appellants maintain the letter reflects

that the Government offered favorable treatment to those who would

testify against the Appellants.     The district court denied the

Appellants’ request to admit the letter.

          At the conclusion of the trial, the jury returned a

guilty verdict against the Appellants.   Brightman alleges that as

the jury was returning its verdict he recognized one of the jurors

as a former classmate of his.   After his trial, Brightman filed a

pro se motion for a new trial based on potential juror bias.   The

district court denied the motion. The court held a reconsideration


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hearing during which Brightman offered no evidence, outside of his

own allegations, to support his position.   The court again denied

the motion.   At sentencing, Brightman reasserted his claim.   The

Government called Agent Driggers, who testified that he interviewed

the juror and that the juror denied knowing Brightman.         The

district court again rejected Brightman’s argument.

          Brightman was ultimately sentenced to life imprisonment

under 21 U.S.C. §§ 841(b)(1)(A)(iii), 851 (2000), based on the

instant offense and two prior offenses from 1994 and 1995 that were

combined into a single plea agreement in 1995.   Appellants timely

noted their appeal.   For the reasons that follow, we affirm the

judgment of the district court.

          Brightman first argues that the district court erred in

denying his motion to suppress evidence obtained from the wiretaps.

According to Brightman, the Government failed to satisfy the

requirement in 18 U.S.C. § 2518(1)(c) (2000) that it show that

other investigation procedures have been tried and failed or would

be unlikely to succeed.

          This court reviews for clear error the factual findings

underlying a district court’s ruling on a motion to suppress and

reviews a district court’s legal conclusions de novo.       United

States v. Wilson, 484 F.3d 267, 280 (4th Cir. 2007). Additionally,

a district court’s determination under 18 U.S.C. § 2518(3)(c)

(2000) that normal investigative procedures have been tried and


                              - 4 -
failed, or reasonably appear unlikely to succeed if tried, is

reviewed for abuse of discretion.    Wilson, 484 F.3d at 280.   This

court has stated that the burden placed on the Government to show

that other investigative techniques have failed or would fail is

not great.   United States v. Smith, 31 F.3d 1294, 1297 (4th Cir.

1994).   The Government must present specific factual information

“sufficient to establish that it has encountered difficulties in

penetrating the criminal enterprise or in gathering evidence to the

point where wiretapping becomes reasonable.”    Id. at 1298 (quoting

United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989))

(internal quotations omitted).

          The Government has met its burden in this case.       Both

affidavits detailed how law enforcement had conducted surveillance

of the wiretap targets and that further surveillance was unlikely

to yield necessary information.     Also, due to the nature of the

drug distribution conspiracy, other investigative techniques such

as grand jury subpoenas, confidential sources, search warrants,

telephone billing records, and pen register devices would not have

yielded the same valuable information regarding drug deals that

could be obtained with a wiretap.    Accordingly, the district court

did not abuse its discretion in authorizing the wiretaps or err in

denying Brightman’s motion to suppress.*


     *
      At the suppression hearing, Brightman only challenged the
affidavit supporting the second wiretap.      Accordingly, to the
extent that he challenges the first wiretap on appeal, his claim is

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           Brightman next contends that the district court erred in

not granting him a new trial after being presented with evidence

that the jury was tainted because one of the jurors was a former

classmate of his.

           In reviewing issues of juror misconduct, this court

reviews historical facts for clear error and conclusions of law de

novo.    United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996).

Also, “because the ultimate factual determination regarding the

impartiality of the jury necessarily depends on legal conclusions,

it is reviewed in light of all the evidence under a somewhat

narrowed, modified abuse of discretion standard.”         Id. (quoting

Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1537-39 nn. 11-12

(4th Cir. 1986)) (internal quotations omitted).

           Brightman first raised his claim of potential juror bias

in a pro se motion following his trial.   Accordingly, he has waived

his right to a new trial based on this claim.      See United States v.

Breit, 712 F.2d 81, 82 (4th Cir. 1983).             Moreover, even if

Brightman had not waived his claim for a new trial, the record does

not support his claim that the juror knew him or recognized him

during   his   trial.   Similarly,   Brightman’s    argument   that   the



reviewed for plain error. United States v. Olano, 507 U.S. 725,
732 (1993).    To establish plain error, Brightman must first
demonstrate that there was, in fact, error. Id. Brightman fails
to make such a showing as the affidavit supporting the first
wiretap, like the affidavit supporting the second, met the
requirements of 18 U.S.C. § 2518(1)(c).

                                - 6 -
district court “refused to entertain any significant airing of the

historical     facts”      underlying      his   claim    of    juror        bias   and,

therefore, abused its discretion, is not supported by the record.

            Brightman’s third claim on appeal is that his enhanced

sentence was fundamentally unfair and offensive to due process. On

October 26, 1995, pursuant to a plea agreement, Brightman pled

guilty to two counts of possession with intent to distribute

cocaine.     The dates of offense for these two prior offenses were

July   7,   1994,    and   August    12,    1995,   respectively.             Based   on

Brightman’s prior offenses, the Government filed a notice of

enhancement pursuant to 21 U.S.C. § 851.                  Following Brightman’s

conviction,    the    district      court   imposed      the    mandatory      minimum

sentence of life imprisonment under 21 U.S.C. § 841(b)(1)(A)(iii).

On   appeal,   Brightman     claims     that,    because       the    1994    and   1995

offenses were combined into a single plea agreement, he has only

one prior conviction for purposes of § 841(b)(1)(A)(iii).

            Section 841(b)(1)(A) states in relevant part that if any

person commits a violation of § 841 “after two or more prior

convictions for a felony drug offense have become final, such

person shall be sentenced to a mandatory term of life imprisonment

without release.”          21 U.S.C. § 841(b)(1)(A).                 This court has

already held that “prior” or “previous” convictions, as used in

§ 841, refers to separate criminal episodes and not separate

convictions arising out of a single transaction.                     United States v.


                                        - 7 -
Blackwood, 913 F.2d 139, 145-46 (4th Cir. 1990).                Brightman does

not argue that his two underlying offenses were part of a single

act of criminality, nor would the facts support such an argument.

Brightman’s two offenses resulted from two separate episodes of

criminality, and the district court did not err in enhancing

Brightman’s sentence accordingly.              See United States v. Ford, 88

F.3d 1350, 1365-66 (4th Cir. 1996).

            Finally,       Brightman   and   Vanderhorst   contend     that    the

district court erred in failing to admit a letter or testimony

regarding a letter, found in the detention center, in which the

Government solicited witnesses to testify against the Appellants.

“A district court’s evidentiary rulings are entitled to substantial

deference    and    will    not   be   reversed   absent   a   clear   abuse    of

discretion.”       United States v. Moore, 27 F.3d 969, 974 (4th Cir.

1994).      No evidence exists in the record to demonstrate that

Appellants authenticated or even attempted to authenticate the

letter found in the detention center.               Therefore, the district

court did not abuse its discretion in refusing to admit it.

            Accordingly, we affirm the judgment of the district

court.   We dispense with oral argument as the facts and legal

contentions are adequately presented in the materials before the

court and oral argument would not aid the decisional process.

                                                                       AFFIRMED




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