United States v. Benavides , 349 F. App'x 897 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 15, 2009
No. 08-50125 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EDUARDO BENAVIDES
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:06-CR-198-ALL
Before REAVLEY, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Eduardo Benavides appeals his conviction for possession of more than fifty
grams of methamphetamine with the intent to distribute. Because we find no
reversible error, we affirm the district court’s judgment.
The central issue in this appeal is the admissibility of the
methamphetamine police discovered when they searched Benavides’s house.
Benavides acknowledges the officers had a warrant, but he alleges two problems
with the affidavit.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-50125
First, he says the affidavit supporting the warrant lacked sufficient
information to be reasonably relied upon under United States v. Leon, 468 U.S.
897, 922-23 (1984). The affidavit contained information that a confidential
informant (“CI”) had told the affiant, Detective Johnny Gomez, that he had seen
methamphetamine in Benavides’s house within the last forty-eight hours.
Gomez also explained why he believed the CI. The CI demonstrated knowledge
about methamphetamine, suggesting he would know how to identify the
substance. Although the CI had no track record with Gomez, Gomez told him
the consequences of making a false report to police. He also told the CI, who was
facing charges, that lying in this case would jeopardize any chance he had at
leniency. Lastly, Gomez confirmed that the CI could identify Benavides and that
Benavides lived in the house the CI had indicated.
Leon allows officers to rely in good faith on a warrant, so long as the
affidavit supporting the warrant is not “so lacking in indicia of probable cause
as to render official belief in its existence entirely unreasonable.” Id. The
quintessential “bare bones” affidavit is one that merely “contain[s] wholly
conclusory statements [that] lack the facts and circumstances from which a
magistrate can independently determine probable cause.” United States v.
Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992); see also United States v. Brown,
941 F.2d 1300, 1303 n.1 (5th Cir. 1991) (giving as examples of bare bones
affidavits ones where affiants simply “ha[ve] cause to suspect and do[] believe”
or “have received reliable information from a credible person and do believe”).
This warrant is considerably more thorough. Indeed, it is very similar to
another affidavit Gomez provided that we approved in United States v. Ramirez,
247 F. App’x 515, 2007 WL 2695604 (5th Cir. 2007). The only difference between
the two situations is that this CI hoped for leniency in exchange for his
information. Although we have expressed concern about informants in this
position, see United States v. Martin, 615 F.2d 318, 326 (5th Cir. 1980) (“Under
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these circumstances, there exists a danger that the informant sought to
implicate another in order to curry the favor of the police and perhaps gain
immunity for himself . . . mak[ing] the statement less reliable.”), we do not think
that difference is enough to make reliance on the affidavit unreasonable.
Second, Benavides argues that he should have had access to the CI’s
identity to show that Gomez knowingly included a material false statement in
his affidavit. Benavides’s most plausible relevant argument is that the district
court should have revisited the suppression issue sua sponte when it found out
that the CI was the person Benavides contended was the CI at the suppression
hearing. Benavides never asked the district court to revisit the suppression
issue at trial; he asked only for the CI’s name to be in the record for appellate
review. Therefore, we review for plain error, which requires that we find an
error that was plain and affected substantial rights. United States v. Villegas,
404 F.3d 355, 358 (5th Cir. 2005). If we do, we have discretion to reverse if the
error “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 358-59. There were two judges who presided over the case,
one handling pretrial motions and the other handling the trial. Benavides gives
us no reason to suppose the trial judge knew about the issues in the suppression
hearing, and the record suggests the judge did not. It is, therefore, difficult for
us to understand why disclosure of the CI’s name would have prompted the trial
judge, on his own initiative, to reopen the suppression issue. Even if this was
error, it was certainly not plain. It is even less clear that any error would have
affected Benavides’s substantial rights. At best, Benavides would have put the
CI’s unsworn statement to a defense investigator that he never told the police
he saw drugs in Benavides’s home against that of an experienced police
detective, who said he did.
Benavides makes two objections regarding suppression for the first time
on appeal that we review for plain error. United States v. Baker, 538 F.3d 324,
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329 (5th Cir. 2008). First, he objects to several references during Gomez’s
testimony about his request for an attorney during the search, but the brief
reference would not, as he argues, have caused a reasonable jury to infer guilt
from his request for counsel. See United States v. Shaw, 701 F.2d 367, 381 (5th
Cir. 1983). Second, he argues certain statements made after he requested an
attorney should have been excluded, but those statements were spontaneous, not
elicited by the officer. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
Finally, Benavides argues that the district court should have held an
evidentiary hearing to address his claims of ineffective assistance of counsel. He
tells us that his appointed counsel should have raised unspecified suppression
issues before Benavides dismissed him and the district court abused its
discretion by denying a hearing. Benavides provides us with little detail about
the claim the district court should have addressed, other than to indicate that
his appointed counsel says he “dropped the ball.” We evaluate ineffective
assistance with a strong presumption of attorney competence. United States v.
Willis, 273 F.3d 592, 598 (5th Cir. 2001). A review of the record suggests that
his appointed counsel’s efforts were not constitutionally insufficient. To the
contrary, it suggests that he tried to locate witnesses and develop successful
suppression claims. Benavides also fails to show how he would have been
prejudiced, and he did not make any such argument to the district court.
Therefore, we cannot find that the district court abused its discretion.
For these reasons, the judgment of the district court is AFFIRMED.
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