United States v. Jones , 41 F. App'x 536 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
7-18-2002
USA v. Jones
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-3282
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NOT
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 01-3282
UNITED STATES OF AMERICA
v.
JAMES ALLEN JONES
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. 99-cr-00175-2)
District Judge: Hon. Anita B. Brody
Submitted Under Third Circuit LAR 34.1(a)
June 10, 2002
Before: SLOVITER, ROTH, and McKEE, Circuit Judges
(Filed: July 18, 2002)
OPINION OF THE COURTSLOVITER, Circuit Judge.
James Allen Jones appeals from the District Court’s denial of his motion to
suppress his confession to armed bank robbery and the court’s failure to specify a
schedule for Jones’s restitution payments under the Mandatory Victims Restitution Act.
After indictment in the United States District Court for the Eastern District of
Pennsylvania, Jones entered a conditional guilty plea to one count of conspiracy to
commit armed bank robbery, in violation of 18 U.S.C. 371; one count of armed bank
robbery, in violation of 18 U.S.C. 2113(d); and one count of using and carrying a
firearm during a crime of violence, in violation of 18 U.S.C. 924(c)(1). Jones’s plea
was conditioned on reserving his right to take this appeal. Pursuant to his plea, Jones
was sentenced to 77 months in prison, a mandatory 60-month consecutive sentence on
the 18 U.S.C. 924(c)(1) firearm count, five years of supervised release, $40,789.49 in
restitution, and $300 in special assessments.
According to Jones, the search warrant authorizing the search of his residence
which preceded his arrest lacked probable cause and was based on an affidavit
containing false statements made with knowing and intelligent or reckless disregard for
the truth. Jones also argues, and the government concedes, that the District Court erred
in failing to specify the schedule of Jones’s restitution payments. We will affirm in all
respects, except as regards the last issue, as to which we will remand.
The District Court had jurisdiction under 18 U.S.C. 3231. This court has
jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742.
I.
Jones first argues that the District Court erred in concluding that the search
warrant was supported by probable cause because (1) the information in the supporting
affidavit was three months old and concerned a one-time crime with guns that were likely
to have been disposed of, and was therefore stale, (2) the information in the supporting
affidavit did not establish any nexus between the weapons sought and Mr. Jones’s home,
and (3) the officers executing the warrant did not exercise objective good faith in relying
on the warrant. This court applies "the same standard the District Court was required to
apply
. . . determin[ing] whether the magistrate who issued the warrant had a ’substantial basis’
for determining that probable cause existed." United States v. Zimmerman, 277 F.3d
426, 432 (3d Cir. 2002) (citation omitted).
The parties are familiar with the facts, and we repeat them only briefly. Although
we reject all of Jones’s bases for challenging the finding of probable cause, we focus
here on the claim of staleness. In that connection, it is important to understand the nexus
between the crimes for which Jones was convicted and the investigation into the killing
of his brother.
Three armed men robbed a PNC bank in Lansdowne, Pennsylvania on March 31,
1997. A month later, on April 29, 1997, Marcus Jones, Jones’s brother, was killed in a
shoot-out on a corner in North Philadelphia. On the morning of July 31, 1997, law
enforcement officers searched James Jones’s home pursuant to the search warrant at
issue here, which was issued that day in connection with an investigation by the
Philadelphia Police into Marcus Jones’s death. After finding firearms, the officers
arrested Jones in connection with his brother’s death. That morning Jones confessed to
participating in the death of Marcus Jones as well as the March 31, 1997 armed robbery
which concerns this appeal.
The warrant that Jones challenges on appeal was issued pursuant to an affidavit in
support of the application for the search warrant that was drafted and typed by Detective
John McDermott of the Homicide Unit of the Philadelphia Police Department.
McDermott’s affidavit relied on two sources, a confidential informant and the confession
of Patrick Palmer, Jones’s co-defendant.
The affidavit states that the confidential informant told Detective Paul Sawicki of
the Firearms Trafficking Task Force that Patrick Palmer was responsible for Marcus
Jones’s accidental death, which occurred in a shoot-out with rival drug dealers, and that
James Jones and Lance Grant, Marcus’s brothers, were also involved in the shooting.
The informant claimed to have been acquainted with James Jones, his two brothers, and
Patrick Palmer, and told Sawicki that James Jones had described the circumstances of the
shooting to the informant. The informant also reported that James Jones had provided
the guns used in the firefight in which Marcus Jones was killed, and that the informant
had observed James Jones with guns on a number of occasions. McDermott’s affidavit
also related how the informant had met with Sawicki on July 17, 1997 to identify the
residence and vehicles used by James Jones.
McDermott’s affidavit next states that on July 24, 1997 Patrick Palmer, James
Jones’s co-defendant, confessed to shooting Marcus Jones. Palmer’s description of the
circumstances of Marcus Jones’s death corroborated the informant’s report. Palmer also
confirmed that James Jones had supplied the guns used in the shooting. Palmer added
that Jones had had the guns for at least one month prior to the shooting.
After reviewing the affidavit in support of the warrant, the District Court found
"that the search warrant on its face provided ample probable cause to search the
defendant’s residence on July 31st, 1997." App. at 7. Jones contends that the search
warrant was not supported by probable cause because the information in the supporting
affidavit was stale and established no connection between the guns and Jones’s
residence.
Our review for discerning probable cause is limited to determining "’whether,
[given all the circumstances set forth in the affidavit before the bail commissioner] . . .
there is a fair probability that contraband or evidence of a crime will be found in a
particular place.’" United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993) (omission
in original) (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). We note that the
Supreme Court has directed that "’the resolution of doubtful or marginal cases in this
area should be largely determined by the preference to be accorded to warrants.’" Id. at
1057-58 (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).
The requisite nexus between the items sought and Jones’s residence can be
"inferred by ’considering the type of crime, the nature of the items sought, the suspect’s
opportunity for concealment and normal inferences about where a criminal might hide
stolen property.’" Id. at 1056 (quoting United States v. Jackson, 756 F.2d 703, 705 (9th
Cir. 1985)). We agree with the District Court that the information in the supporting
affidavit demonstrated a nexus between the guns and Jones’s residence and was not stale.
The confidential informant reported that he or she had regularly observed Jones
brandishing firearms. In confessing to killing Marcus Jones, Palmer confirmed that
James Jones used firearms and had provided them to Palmer and others. Although Jones
argues that "[t]here was simply no rational basis for the belief that [he] would have held
on to this highly incriminating evidence [the guns] three months into a homicide
investigation that was yet unsolved," Br. of Appellant at 32, the District Court held that
in light of the informant’s statement that he had seen Jones with firearms on several
occasions, coupled with Palmer’s statements that Jones had provided and taken away the
guns used in the April 29 shooting, there was a sufficient probability that evidence of the
shooting could be found in Jones’s home. Moreover, we previously noted that, even
absent any direct evidence of their location, firearms are "likely to be kept in a suspect’s
residence." Jones, 994 F.2d at 1056. We thus reject Jones’s argument that the District
Court erred in concluding that the search warrant was supported by probable cause.
II.
Jones’s second argument is that the District Court erred in determining that he was
not entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). To be
entitled to a Franks hearing, a defendant must show that (1) the affidavit in support of the
warrant contained statements or omissions that were deliberately false or demonstrated a
reckless disregard for the truth and (2) the challenged statements or omissions were
essential to the magistrate judge’s finding of probable cause. Id. at 155-56; United States
v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988).
Jones sought a Franks hearing based on his allegation of one misstatement and
one omission by Detective McDermott which Jones asserts were deliberately false or
demonstrated a reckless disregard for the truth. Jones first focused on Detective
McDermott’s statement that "James Jones provided the guns, which he has possession of,
giving Palmer a .22 caliber semi-automatic rifle with a 50-round magazine, Marcus Jones
a 12-gauge shotgun, and James Jones and Lance Grant each had ’Tech 9’ semi-automatic
machine pistols with 32-round magazines." App. at 51 (emphasis added). Before the
District Court, McDermott testified that he meant to write that "[James Jones] had
possession of" the guns, and that his use of the present tense was a typographical error.
App. at 181.
Jones next focused on the omission from McDermott’s affidavit of information
provided by Patrick Palmer. In response to the question, "Do you know what happened
to the guns that were used on 4-29-97?" Palmer had replied, "James told me the day of
Marcus’[s] funeral that he got rid of them, I’m not sure where though." App. at 47, 182.
That statement was not included in the affidavit. In explaining his omission, McDermott
testified that the confidential informant "had recently seen James Jones in the possession
of guns and I thought that information was more recent than what Patrick Palmer [who
had been in police custody for a car-jacking since May 14, 1997] was providing." App. at
183.
The District Court believed that a Franks hearing was unnecessary because Jones
had not made the necessary preliminary showing. However, in light of Jones’s argument,
the District Court held a Franks hearing. The court found McDermott’s testimony to be
credible. With respect to McDermott’s use of "has" instead of "had," the District Court
concluded "Detective McDermott only meant to convey that Palmer said that the
defendant had guns at the time of the shooting of Marcus Jones." App. at 13.
We note that the affidavit would still have supported a finding of probable cause,
even if McDermott had written "had" and included Palmer’s statement about Jones
disposing of the guns. The "has" typo appears in the portion of the affidavit where
McDermott relates Palmer’s statements to police while in police custody. Because of its
location in the affidavit, the incorrect statement of tense was unlikely to mislead the bail
commissioner into concluding that Palmer had represented that Jones currently possessed
the firearms. Taken in context, the tense of the verb was not essential to the bail
commissioner’s finding of probable cause.
With respect to McDermott’s omission, the District Court concluded, "In omitting
from his affidavit Palmer’s statement that that Jones got rid of the guns, McDermott
was not trying to deceive the bail commissioner, who issued the search warrant.
McDermott did not think that the statement was important to the decision to issue the
search warrant." App. at 13.
We note, further, that while Jones may have communicated to Palmer that he had
gotten rid of the guns associated with Marcus’s death, Palmer was "not sure where." On
the other hand, as the bail commissioner was apprised, the confidential informant had
recently claimed to have "observed James Jones with firearms on several occasions."
App. at 50. Because Palmer was unable to suggest the guns’ location, the bail
commissioner would have been reasonable in relying on Detective McDermott’s
expertise and the confidential informant’s observations in assessing whether the weapons
were located in Jones’s residence. McDermott observed in his affidavit in support of the
warrant that, "by their nature, firearms are the type of article usually retained by the
person in possession." App. at 51. As discussed above, this court has itself noted that
firearms are often kept in a suspect’s residence. See Jones, 994 F.2d at 1056.
At the conclusion of the Franks hearing, the District Court concluded:
On the basis of finding of law on the basis of
McDermott’s testimony, I find that he did not knowingly,
intentionally or with reckless disregard of the truth, include
false and misleading statements in the search warrant
affidavit. I find that the defendant has not established facts
that challenge the presumed validity of the affidavit
supporting the search warrant. The search of the defendant’s
home on July 31st, 1997 was not unreasonable as it was
executed pursuant to a search warrant in support of a
probable cause, therefore, the post-arrest statement taken
from Jones subsequent to the search was not the product of a
[sic] unlawful search and, therefore, the defendant’s motion
to dismiss his post-arrest statement is denied.
App. at 14.
After careful review of the record, we see no reason to disturb those findings.
III.
The District Court also ordered that Jones pay criminal monetary penalties of
$40,789.49 as restitution under the Mandatory Victims Restitution Act (MVRA), 18
U.S.C. 3663A, 3664 (2002). The MVRA requires that a district court specify the
schedule of restitution payments after considering the defendant’s financial resources,
projected earnings, and financial obligations. Id.; see also United States v. Coates, 178
F.3d 681, 684 (3d Cir. 1999) (observing that District Court’s failure to "schedule
restitution payments after taking into account the defendant’s financial resources"
constituted plain error). Because the District Court failed to specify a schedule for
Jones’s repayments, the Government agrees that we should remand to provide the
District Court an opportunity to do so.
IV.
For the reasons set forth, we will affirm the District Court’s judgment of
conviction and sentence except that we will remand so that the court may specify a
schedule for Jones to make repayments under the MVRA.
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