United States v. Richard Crawford ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0282p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 18-6239
v. │
│
│
RICHARD R. CRAWFORD, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 2:17-cr-00034-1—David L. Bunning, District Judge.
Decided and Filed: November 18, 2019
Before: BATCHELDER, DONALD, and READLER, Circuit Judges
_________________
COUNSEL
ON BRIEF: Nathan A. Ray, BURDON & MERLITTI, Akron, Ohio, for Appellant. Charles P.
Wisdom, Jr., James T. Chapman, UNITED STATES ATTORNEY’S OFFICE, Lexington,
Kentucky, for Appellee.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Confidential informants play an important role in
combatting drug trafficking. Reflecting as much, our cases reveal numerous examples of
confidential informants providing critical information to support search warrants targeting drug
crimes.
No. 18-6239 United States v. Crawford Page 2
These same issues were at play in the investigation that resulted in Richard Crawford’s
drug trafficking conviction. Almost all the evidence used to justify the search warrants that
resulted in Crawford’s arrest was provided by a confidential informant. Challenging that
practice, Crawford contends that the officers who sought the warrants did not verify sufficiently
the informant’s reliability. Crawford is correct to emphasize the point—informants must be
trustworthy and credible. But he is wrong in his conclusion. Here, the informant’s reliability
was confirmed both by law enforcement agencies and through the affiant officer’s own research.
Adding in the fact that the key information disclosed by the informant proved to be credible,
there were many reasons to deem the informant reliable, thereby justifying the warrants.
Accordingly, we AFFIRM the judgment below.
I. FACTS AND PROCEDURAL HISTORY
Officer Erik Nelson of the Blue Ash (Ohio) Police Department learned that Richard
Crawford was dealing cocaine. That information, however, was not obtained first-hand. Instead,
it came from a confidential informant, Jerry Heard, who was previously unknown to Nelson. To
help establish his credibility as an informant, Heard identified Crawford from Crawford’s
driver’s license photograph, and provided Nelson with Crawford’s telephone number.
Nelson took additional steps to verify Heard’s credibility as an informant. Nelson
contacted two law enforcement officers who had experience working with Heard—Sergeant
Dave Lewis of the Drug Abuse Reduction Task Force, and Agent Josh Schlie of the Hamilton
County (Ohio) Heroin Coalition Task Force. Both officers confirmed Heard’s reliability, based
upon their past interactions with him as an informant.
With these assurances, Nelson communicated with Heard a second time. After affirming
that Crawford’s telephone number was unchanged, Heard told Nelson that Crawford had twenty
ounces of cocaine he was going to sell. That prompted Nelson to review Crawford’s
background. Doing so revealed Crawford’s prior convictions for drug-trafficking offenses.
Heard continued to gather evidence incriminating to Crawford. Chief among that
evidence, Crawford told Heard that Crawford could buy a kilogram of cocaine for $42,000 from
a criminal organization in Columbus, and that Crawford would sell Heard an ounce of that
No. 18-6239 United States v. Crawford Page 3
cocaine for $1,500, should the sale with the Columbus organization come to pass. Heard relayed
this information to Nelson. And he affirmed that Crawford’s telephone number was unchanged,
this time by showing Nelson text messages between Crawford and Heard.
The First Search Warrant. Relying on this collection of information, Nelson obtained a
warrant from an Ohio state court judge to electronically track Crawford’s cellphone—the first of
three warrants officers would obtain to investigate Crawford. In his affidavit attached to the first
warrant application, Nelson detailed the conversations he had with a confidential informant
(Heard) as well as the steps he took to verify the informant’s reliability. But he did not name
Heard in the affidavit.
The next day, Heard told Nelson that Crawford drove a silver 2003 BMW X5. Using that
information as well as the license plate number provided by Heard, Nelson learned that the
vehicle was registered to Crawford at a residence in Cincinnati, Ohio. Temporal cellphone data,
however, placed Crawford near an apartment in Florence, Kentucky, leased to Crawford’s wife.
So Nelson surveilled the apartment. He saw Crawford walk out of the apartment and drive away
in the BMW previously identified by Heard. Heard later told Nelson that Crawford had again
offered to sell him cocaine, this time for $1,400 an ounce.
The Second Search Warrant. Agent Chris Boyd of the Norfolk (Kentucky) Police
Department assisted Nelson in investigating Crawford. Boyd sought a second warrant—one that
would allow officers to place a tracking device on Crawford’s vehicle. In his affidavit, Boyd
included both the information Nelson received from Heard as well as the information Nelson
independently gathered. Relying on Boyd’s affidavit, a Kentucky state court judge issued a
warrant authorizing officers to use the GPS device.
A few weeks later, Heard, with the aid of law enforcement, completed a controlled drug-
buy from Crawford. During a phone call monitored by law enforcement, Heard and Crawford
agreed to meet at a nearby gym. Officers surveilling Crawford saw him leave his apartment
holding a small black duffle bag. Heard had previously informed officers that Crawford kept his
cocaine inside a similar bag. After confirming that Heard was not in possession of any
controlled substances or U.S. currency, officers provided Heard with $1,400 in cash, the serial
No. 18-6239 United States v. Crawford Page 4
numbers of which had been recorded by the officer. The officers also placed a listening device
on Heard. Once Heard was inside the gym, however, the device did not function, meaning the
police could not monitor Heard’s interaction with Crawford. But Heard filled in the gaps.
According to Heard, he followed Crawford’s instructions and went to the locker room, where
Crawford was storing cocaine in a bag. Heard put the money in that bag, took out the cocaine,
and gave the bag back to Crawford. GPS tracking information revealed that Crawford drove
back to his apartment following the locker room exchange.
The Third Search Warrant. Two days later, Boyd obtained a third search warrant
regarding Crawford. This one was for Crawford’s apartment. In the supporting affidavit, Boyd
included the facts used to obtain the prior warrants as well as the details of the controlled buy.
With respect to the latter, the affidavit noted that the call participants “discussed meeting in order
for Crawford to sell [Heard] cocaine.” The affidavit also set forth the details of the buy itself.
Later that day, officers executed the warrant and searched Crawford’s apartment. During
the search, officers found cocaine. They also found $3,705 in cash, which included $1,390 in
tagged bills used in the controlled buy. Crawford was detained, Mirandized, and interviewed by
officers at the scene. Crawford incriminated himself, admitting that he sold on consignment an
ounce of cocaine to “Jerry,” and that he had placed cocaine under his sink.
The Criminal Proceedings. On September 14, 2017, the grand jury returned a three-count
indictment in which Crawford was charged as follows:
• Count One: Knowingly and Intentionally Distributing a Mixture or Substance
Containing Cocaine, in violation of 21 U.S.C. § 841(a)(1).
• Count Two: Knowingly and Intentionally Possessing a Mixture or Substance
Containing Cocaine With Intent to Distribute it, in violation of 21 U.S.C.
§ 841(a)(1).
• Count Three: Knowingly and Intentionally Possessing 28 Grams or More of a
Mixture or Substance Containing Cocaine Base Crack With the Intent to
Distribute, in violation of 21 U.S.C. § 841(a)(1).
Crawford filed three motions with the district court—two to suppress evidence, and a
third, a variation of the first two, which elaborated on Crawford’s argument that each warrant
lacked probable cause. Through these motions, Crawford argued that none of the warrants
No. 18-6239 United States v. Crawford Page 5
should have issued. With respect to the warrant authorizing the search of his home, Crawford
argued that Boyd, in the affidavit attached to the third warrant application, made a materially
false statement regarding the content of the phone conversation during which the gym meeting
was arranged.
Crawford also challenged the government’s reliance on his inculpatory statements made
to officers. Citing Miranda v. Arizona, 348 U.S. 436 (1966), Crawford argued that those
statements should be suppressed, either because he was not Mirandized, or, if he was, because he
did not voluntarily, knowingly, and intelligently waive his Miranda rights.
A magistrate judge took up Crawford’s arguments. In her report, the magistrate judge
recommended that Crawford’s suppression motions be denied. The magistrate judge likewise
recommended that Crawford should not receive a Franks hearing because he did not show that
officers recklessly included false statements in the affidavit supporting the third warrant
application, nor did he show that excising the challenged statements would change the result of
the probable-cause analysis.
Crawford filed objections to the magistrate judge’s rulings (save for the ruling that
Crawford voluntarily and knowingly waived his Miranda rights). Following a hearing, the
district court adopted the magistrate judge’s Report and Recommendation and denied Crawford’s
motions.
The case proceeded to trial. Much of the case turned on Nelson’s testimony. Nelson
testified that he believed Heard to be a reliable informant, explaining how he verified Heard’s
reliability. Nelson went on to detail the information he received from Heard as well as the
actions he took upon receiving that information. At the close of evidence, the jury convicted
Crawford of Count One. For Counts Two and Three, the jury found Crawford guilty of the
lesser included offense of Possession of Cocaine and Cocaine Base.
The ensuing presentence report initially set Crawford’s offense level at 16. But because
Crawford was deemed to be a career offender, his offense level was raised to 34. Crawford’s
criminal history category was set at VI. Applying those sentencing metrics, Crawford’s
Guidelines range was calculated as 262 to 327 months. At sentencing, the district court varied
No. 18-6239 United States v. Crawford Page 6
downward, imposing an aggregate sentence of 216 months, plus an aggregate term of six years
of supervised release.
II. ANALYSIS
A. The Three Search Warrants Underlying The Investigation Of Crawford Were
Supported By Probable Cause.
The district court denied Crawford’s motions to suppress evidence obtained after
execution of three search warrants, one each for Crawford’s phone, car, and home. According to
Crawford, those investigatory efforts constituted “unreasonable searches and seizures” by
government officials, in violation of the Fourth Amendment to the United States Constitution.
Generally speaking, a search that occurs pursuant to a warrant validly issued by a judicial
officer will insulate law enforcement from a Fourth Amendment challenge. See United States v
Leon, 468 U.S. 897, 913–14 (1984). For a warrant to be validly issued, however, it must have
been based on “probable cause” justifying the search. United States v. Christian, 925 F.3d 305,
311 (6th Cir. 2019) (en banc).
Whether the supporting affidavit establishes probable cause is determined by examining
the “totality of the circumstances” underlying the search. United States v. Hines, 885 F.3d 919,
923 (6th Cir. 2018) (citations omitted). Having made that examination, the judicial officer
should issue the warrant where those underlying circumstances reflect “a fair probability that
contraband or evidence of a crime will be found in a particular place.” United States v. Higgins,
557 F.3d 381, 389 (6th Cir. 2009) (quoting United States v. Miller, 314 F.3d 265, 268 (6th Cir.
2002)). Put another way, the probable-cause standard is satisfied “where the facts and
circumstances within their (the officers’) knowledge and of which they had reasonably
trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in
the belief that an offense has been or is being committed.” United States v. Davis, 430 F.3d 345,
352 (6th Cir. 2005) (internal quotations omitted) (parentheses in original).
Where an executed warrant is later challenged by a defendant, the reviewing court, in
assessing whether there was probable cause for the warrant to issue, is limited to examining only
“the information presented in the four-corners of the affidavit.” United States v. Frazier,
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423 F.3d 526, 531 (6th Cir. 2005) (citations omitted); see also Christian, 925 F.3d at 314
(Thapar J., concurring). But as to the conclusions to be drawn from the information within those
four corners, a reviewing court must accord “great deference” to the decision of the issuing
court. United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc) (citations and internal
quotations omitted). This deferential approach ensures that “an issuing [court’s] discretion [will]
only be reversed if it was arbitrarily exercised.” Id. (citing United States v. Swihart, 554 F.2d
264, 267–68 (6th Cir. 1977)).
1. Crawford questions the reliability of the affidavits underlying the first two warrants. All
agree that those affidavits turned on information provided by Heard. And, says Crawford, Heard
was unreliable.
Given the vital role confidential informants can play in furthering criminal investigations,
we have carefully balanced what measures are necessary to validate an informant’s reliability.
See, e.g., United States v. Kinison, 710 F.3d 678, 683 (6th Cir. 2013). By and large, our focus is
on verifying the reliability of the informant, as opposed to the information obtained therefrom.
See id. After all, verifying each individual piece of information obtained from an informant
would be impractical, if not impossible. See id. Some information might not be verifiable, such
as whether an informant drew a certain inference from an ambiguous statement by a suspect. For
other kinds of information—for example, when an informant claims to have personally seen
contraband—verification is the purpose of the search warrant itself. And more broadly,
requiring verification of each piece of evidence would largely vitiate the very purpose of the
confidential informant: to give officers information they could not otherwise obtain.
So we examine the messenger more than the message. Our focus is on the informant’s
reliability. And different circumstances require different means for verifying an informant’s
reliability. We begin by examining the known facts and circumstances regarding the informant.
See United States v. Jackson, 470 F.3d 299, 307 (6th Cir. 2006). An easier case for verification
is one in which an officer uses a confidential informant known to that officer. In that setting, we
typically do not require the officer to verify independently any of the information provided by
the informant. Allen, 211 F.3d at 976. Allen is one example. There, we did not require
independent corroboration of information received from a confidential informant because the
No. 18-6239 United States v. Crawford Page 8
informant, for “over a five-year period,” was “personally known to the detective who swore the
affidavit.” Id.; see also United States v. Pinson, 321 F.3d 558, 563 (6th Cir. 2003) (finding
probable cause to issue search warrant where “the officers personally knew the confidential
informant . . . and characterized the informant as reliable”). That familiarity alone was enough to
deem the informant reliable, for purposes of establishing probable cause.
Next, consider the instance where the informant is known to other law enforcement
officers, but not to the affiant officer. If the affiant officer avers that another officer has vouched
for the informant’s reliability, that too will typically satisfy our reliability inquiry. See United
States v. Brown, 732 F.3d 569, 574 (6th Cir. 2013) (citation omitted) (Officer’s “statement that
he was personally aware that the informant had provided information leading to convictions of at
least two federal defendants suffices [] to establish that the informant . . . was reliable.”); see also
United States v. Greene, 250 F.3d 471, 480 (6th Cir. 2001) (Officer “averred that the confidential
informant had assisted federal and state law enforcement officials in the past and this information
had resulted in numerous felony arrests,” meaning “the magistrate could reasonably have relied
on the information gained from the confidential informant for the purposes of the search
warrant.”).
We have distinguished these settings from one in which an officer relies upon
information from an informant the officer is using for the first time, and whose credibility the
officer cannot verify through other officers. In that instance, there is no track record of
credibility to fall back on. We thus require the officer to take steps to test the informant’s
veracity. See United States v. Hammond, 351 F.3d 765, 772 (noting that when an affidavit
contains vague information from an informant who is not known to the police or known to be
reliable, the informant’s “tip can take on an increased level of significance for probable cause
purposes, if corroborated by the police through subsequent investigation”). For example, the
officer could verify key information received from the informant, where plausible to do so.
Compare United States v. May, 399 F.3d 817, 825 (6th Cir. 2005) (finding affidavit sufficient
where informant stated that the defendant worked with known cocaine cook at a certain location,
officers saw the cook at said location, and officers knew of the cook’s prior drug activities), with
Frazier, 423 F.3d at 532 (finding affidavit insufficient where it set forth neither that officers
No. 18-6239 United States v. Crawford Page 9
previously worked with informant nor any actions taken by officers to corroborate information
received from informant). Or the officer could identify multiple sources providing the same
information, increasing the likelihood that the tip is reliable. See, e.g., United States v. Woosley,
361 F.3d 924, 927–28 (6th Cir. 2004) (finding affidavit sufficient where it included that officer
previously received information from other informants regarding drug activities at defendant’s
business location and other officers had previously received similar tips).
2. Before their investigation of Crawford, neither Nelson nor Boyd knew Heard personally.
That means, in view of the legal landscape set out above, the two officers were required to verify
in some manner Heard’s reliability. To our eye, the officers cleared that hurdle, and by some
margin.
Up first are the warrants to track Crawford’s phone and car, respectively. For the warrant
application to track Crawford’s phone, Nelson, in his attached affidavit, stated that Heard
provided Nelson with specific incriminating evidence. For example, Crawford revealed to Heard
(and Heard in turn revealed to Nelson) particular details of Crawford’s drug-trafficking
operation. Those details included the price Crawford would need to pay to purchase a large
amount of cocaine as well as the per-ounce price to sell that cocaine to Heard. Heard also told
Nelson that Crawford appeared to be buying the cocaine from an organization in Columbus.
Nelson likewise included in his affidavit the steps he took to confirm Heard’s reliability.
Nelson inquired about Heard to other officers who had previously used Heard as an informant,
each of whom confirmed Heard’s reliability. That confirmation alone can be compelling
evidence of an informant’s reliability. See Brown, 732 F.3d at 574. Nelson also stated that
Heard identified Crawford from his driver’s license photo. And, Nelson added, Heard provided
him with Crawford’s telephone number, reaffirmed that number a second time, and then a third
time, showing Nelson text messages between Heard and Crawford. Nelson, for his part,
independently examined Crawford’s background, discovering Crawford’s criminal past, which
included drug trafficking.
This affidavit comfortably passes indicia-of-reliability muster. Presented with the
information above, a reasonable judicial officer would have no trouble concluding there was a
No. 18-6239 United States v. Crawford Page 10
“fair probability” that tracking Crawford’s cellphone would aid an investigation into his criminal
activities. Higgins, 557 F.3d at 389. As Heard was not known to Nelson, Nelson confirmed
Heard’s reliability with other law enforcement agencies, and independently corroborated key
information provided by Heard. In view of these efforts, Heard’s reliability was sufficiently
established.
Much the same is true for the second warrant, one that authorized placing a GPS tracker
on Crawford’s vehicle. In his supporting affidavit, Boyd included the information relayed to him
by Nelson. Added to that information were the facts that Heard had identified Crawford’s
vehicle, that the vehicle was registered to Crawford, and that Nelson saw Crawford drive the
vehicle. Boyd also detailed the actions Nelson had taken to confirm Heard’s reliability. Here
too, the judicial officer had ample reliable evidence to justify issuing the GPS-related warrant.
Crawford has not convinced us otherwise. Relying on United States v. Pelham, 801 F.2d
875 (6th Cir. 1986), Crawford argues that the affidavit was silent as to whether Heard in fact
observed any criminal activity himself. That silence, says Crawford, makes it uncertain whether
Heard had first-hand information justifying the warrant, or merely circumstantial information of
criminal conduct. And that lack of clarity, Crawford says, dooms the case for probable cause
justifying the warrant. But Pelham cannot bear such weight. Pelham makes the perhaps
unassailable observation that an informant who sees criminal activity can provide a substantial
basis for finding probable cause. Id. at 878. Yet neither that case, nor any other case, to our
knowledge, establishes a bright-line rule that first-hand knowledge of criminality is necessary to
establish probable cause. To the contrary, in the over three decades that followed Pelham, we
have not required informants personally to observe contraband or criminal activity before a court
may find probable cause based on an informant’s statement. See, e.g., United States v. Smith,
510 F.3d 641, 653 (6th Cir. 2007) (citing United States v. King, 227 F.3d 732, 742 (6th Cir.
2000) (holding that the totality of the circumstances supported probable-cause determination
despite confidential informant’s lack of personal observation of criminal activity)). All that is
required is that the totality of the circumstances satisfy the probable-cause standard. Id.
3. Regarding the third warrant—the warrant to search Crawford’s home—Crawford claims
there was no nexus between his home and his then-known criminal conduct, meaning that
No. 18-6239 United States v. Crawford Page 11
affidavit too did not sufficiently establish probable cause justifying the ensuing search. With
respect to this argument, however, Crawford finds himself behind immediately out of the starting
block. Crawford forfeited this argument by not raising it below, meaning we review it only for
plain error. See United States v. Al-Maliki, 787 F.3d 784, 791 (6th Cir. 2015). And establishing
plain error is a tall order. Plain error means an “(1) error (2) that was obvious or clear, (3) that
affected defendant’s substantial rights and (4) that affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.
2008) (en banc) (internal quotation omitted).
Turning to the merits of Crawford’s challenge, he contests whether probable cause
existed to justify a warrant authorizing the search of his home. Generally speaking, to find
probable cause justifying a warrant, we require a “nexus between the place to be searched and
the evidence sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc).
That general rule is refined when the place is a home and the evidence drugs. “[I]n the case of
drug dealers,” we have observed, “evidence is likely to be found where the dealers live.” United
States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998) (citation, internal quotations, and alteration
omitted). And so a court issuing a search warrant “may infer that drug traffickers use their
homes to store drugs and otherwise further their drug trafficking.” United States v. Williams,
544 F.3d 683, 687 (6th Cir. 2008).
Boyd’s affidavit addressed the relationship between Crawford’s home and his suspected
drug dealing. In his affidavit supporting the request for a warrant to search Crawford’s home,
Boyd included the information used in seeking the earlier cellphone-tracking and GPS warrants.
The affidavit detailed a phone conversation that led to the controlled cocaine buy between
Crawford and Heard, as well as, more importantly, the actual controlled buy. On top of that, the
affidavit explained that Heard told officers that Crawford kept his supply of cocaine in a duffle
bag—something officers observed right before the controlled buy when Crawford left his
apartment carrying a duffle bag.
Against this backdrop, we cannot say the district court erred, plainly or otherwise, in
denying Crawford’s motion to suppress. Heard was demonstrably a reliable source of
information, as reflected in the first two warrants. And the third warrant, it bears adding, was
No. 18-6239 United States v. Crawford Page 12
also supported by Heard’s first-hand account of purchasing cocaine directly from Crawford. In
view of that statement, a judicial officer could reasonably “infer that [Crawford] use[d his]
home[] to store drugs and otherwise further [his] drug trafficking.” Williams, 544 F.3d at 687.
Accordingly, Crawford’s Fourth Amendment challenge fails here as well.
B. Crawford Is Not Entitled To A Franks Hearing.
Crawford also challenges the validity of the third warrant on the grounds that it was
premised upon a knowingly and intentionally false statement in the underlying affidavit.
Crawford singles out the statement in the affidavit asserting that Heard and Crawford arranged to
meet for a drug transaction. Because there was no express mention of drugs in the monitored
phone call in which Crawford and Heard discussed meeting at the gym, Crawford says the
corresponding statement in the affidavit is untruthful. Accordingly, Crawford requests a hearing
to test how that false statement impacted the evidence-gathering process. See Franks v.
Delaware, 438 U.S. 154 (1978).
The type of hearing Crawford seeks has come to be known as a “Franks hearing,”
following the Supreme Court’s holding in a case by that name. In a Franks hearing, a court
determines whether to suppress the fruits of an executed search warrant, where the warrant was
the result of a false statement. Id. at 171. To demonstrate entitlement to the hearing, a defendant
must make a “substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant
affidavit.” Id. at 155–56. “The allegedly false statement,” moreover, must be “necessary to the
finding of probable cause.” Id.
A Franks analysis turns on two questions of fact, and one of law. The two questions of
fact: One, is there a false statement included in an affidavit? If so, then two, how culpable is the
affiant officer in including that statement in the affidavit? Where the affidavit does include a
false statement, and where the officer making the statement was culpable in doing so, then the
court turns to a question of law: After excising the false statement, is there sufficient
information in the affidavit to constitute probable cause to issue a warrant? Id. at 171.
 No. 18-6239 United States v. Crawford Page 13
That legal question alone dooms Crawford’s request for relief. Assuming, for argument’s
sake, that Crawford can meet his burden on the factual issues, he cannot meet his burden on the
legal one. After all, even if the statements at issue were false, and even if Boyd had some
culpability in including them in his affidavit, the affidavit contained an ample amount of other
evidence to support a finding of probable cause to search Crawford’s home. It explained that
Heard and Crawford had discussed the price at which Crawford would sell cocaine to Heard as
well as the organization from which Crawford would buy that cocaine. And it explained the
details of the controlled buy in which Heard claimed to have purchased cocaine from Crawford.
The truthful evidence in the affidavit thus outweighs any concern over the inclusion of
arguably false content. It follows that, after excising any mention of the phone call, the district
court still had sufficient evidence upon which to find probable cause. Accordingly, we reject
Crawford’s claim that he should be afforded a Franks hearing.
C. Crawford Is Not Entitled To Relief On His Miranda-Based Claims.
1. Crawford next contends that the district court should have suppressed his incriminating
statements made to police officers while in custody. Primarily, Crawford contends that the
officers did not read him his Miranda rights prior to his custodial interrogation. Before the
district court, the parties presented dueling stories over whether the officers in fact read
Crawford his Miranda rights. Crawford testified they did not. But both officers testified that
they did. The district court credited the officers’ testimony and concluded that Crawford was
Mirandized prior to incriminating himself.
At this stage of the proceedings, Crawford has his work cut out for him in challenging the
conclusion below. On the one hand, we review de novo a district court’s legal conclusions with
respect to whether to suppress statements allegedly taken in violation of Miranda. United States
v. Al-Cholan, 610 F.3d 945, 953 (6th Cir. 2010) (internal citations omitted). Yet on the other, we
defer to the district court’s assessment of witness credibility, we “review the evidence in the light
most likely to support the district court’s decision,” and we assess the entire record “in the light
most favorable to the government.” United States v. Lawrence, 735 F.3d 385, 436 (6th Cir.
2013) (internal citations omitted).
No. 18-6239 United States v. Crawford Page 14
Crawford’s climb is simply too steep. Crawford’s best evidence is a recording made
while he was being questioned in a police car. In that recording, Deputy Canfield mentions that
he did not know whether Crawford had been Mirandized. But weigh that equivocal statement
against the unequivocal testimony from two other officers, each of whom testified that Crawford
had been Mirandized. The best Crawford can say, then, is that the district court was presented
with conflicting testimony.
In weighing each witness’s credibility, the district court is afforded deference. That
means Crawford must demonstrate clear error in the district court’s assessment for us to overturn
that court’s decision. See id. He has not done so. Accordingly, Crawford’s motion to suppress
was properly denied.
2. As a second Miranda-based challenge, Crawford alleges that he did not voluntarily,
knowingly, and intelligently waive his Miranda rights. Yet Crawford did not preserve that
argument. In the proceedings below, Crawford failed to object to the magistrate judge’s
rejection of his “voluntarily and knowingly” challenge. When an unsuccessful party, with the
benefit of time, fails to object to an aspect of a magistrate judge’s ruling when that ruling is taken
up by the district court, that party also waives any future objection to that particular ruling.
United States v. Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019) (internal citations omitted); see
also United States v. Soto, 794 F.3d 635, 649 (6th Cir. 2015) (“Whereas forfeiture is the failure
to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment
of a known right.”) (internal quotations omitted).
In the proceedings below, the magistrate judge ruled, among other things, that “Crawford
voluntarily, knowingly, and intelligently waived his [Miranda] rights.” Crawford objected to
several of the magistrate judge’s recommendations, just not the one articulated here. That failure
led the district court to conclude that Crawford had waived any challenge to the magistrate
judge’s determination. We agree.
No. 18-6239 United States v. Crawford Page 15
D. The Prosecutor Did Not Improperly Bolster Informant Heard’s Credibility.
Crawford’s final claim is that the prosecutor engaged in misconduct when questioning
Nelson at trial. According to Crawford, the prosecutor’s questions of Nelson improperly
buttressed or “bolstered” Heard’s credibility.
Here again, Crawford’s trial decisions have raised the bar on appeal. Because Crawford
did not object at trial to the prosecutor’s questions he now takes issue with, his bolstering claim
was forfeited, meaning that we will review the issue only for plain error. Again, plain error
means an “(1) error (2) that was obvious or clear, (3) that affected defendant’s substantial rights
and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”
Vonner, 516 F.3d at 386 (internal quotation omitted).
At trial, a party’s case often rises or falls with the strength of its witnesses. Trial lawyers
thus well understand the need for their witnesses to come across as credible. And so the Federal
Rules of Evidence as well as generally accepted trial practices more broadly allow some room
for trial lawyers to portray a witness in the best light. As just a few examples, a lawyer, through
her questioning, may seek to highlight a witness’s specialized expertise or a witness’s unusually
compelling reasons to be truthful when testifying.
Sometimes, those efforts can go too far. Evidentiary rules along with accepted standards
of courtroom decorum help curtail abusive courtroom antics. In the criminal setting specifically,
we have drawn a hard line against overzealous efforts by prosecutors to prop up a testifying
witness by “bolstering” on her behalf. United States v. Francis, 170 F.3d 546, 549–51 (6th Cir.
1999). “Bolstering occurs when the prosecutor implies that the witness’s testimony is
corroborated by evidence known to the government but not known to the jury.” Id. at 551 (citing
United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997)). Bolstering is treated as a form of
prosecutorial misconduct as it goes to “the heart of a fair trial.” Id. When bolstering occurs, it
can lead to reversal of a conviction.
In analyzing whether impermissible bolstering occurred during trial, a reviewing court
must first determine whether the challenged statements were improper. The most common type
of impropriety in this context is when a prosecutor asks a witness, typically a law enforcement
No. 18-6239 United States v. Crawford Page 16
official, “whether [the official] was able to corroborate what he learned in the course of a
criminal investigation.” Id. (citing United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993)).
While that statement, standing alone, may not reflect misconduct, the statement falls below
acceptable standards when the prosecutor then fails to “draw out testimony explaining how the
information was corroborated and where it originated.” Id. Where that pattern of conduct arises,
a court must determine whether a prosecutor’s remarks constituted flagrant misconduct, or
instead, something more benign, possibly even an oversight. See United States v. Bradley,
917 F.3d 493, 505 (6th Cir. 2019) (citing United States v. Henry, 545 F.3d 367, 376 (6th Cir.
2008)).
Francis is one such example of misconduct that was more than an oversight. There, the
prosecutor repeatedly asked the law enforcement witness “whether he had corroborated
information [he] obtained.” 170 F.3d at 551. On two occasions, the agent explained that “police
reports, bank records, tax records, and interviews and conversations with other individuals,” as
well as a controlled drug-buy, led him to believe the information he obtained was reliable. Id.
But on at least twelve other similar occasions, the agent merely asserted, without more, that he
had corroborated the information he received. Id. The prosecutor’s failure in turn to elicit
evidence as to how the information was corroborated, we acknowledged, “would lead a
reasonable juror to believe that the prosecutor was implying a guarantee of truthfulness based on
facts outside the record.” Id. For that reason, we held that the prosecutor’s line of questioning
was improper. Id. And in the context of the entire trial, because the prosecutor’s failure to
“refrain from improper methods” was “pervasive[] and repeated[],” a new trial was necessary.
Id. at 553.
But that was Francis. Today, on the other hand, we need not assess whether the
prosecutor engaged in flagrant misconduct below, for Crawford has failed make the threshold
demonstration that the prosecutor’s questions were improper. The prosecutor elicited testimony
along the lines of a statement by Nelson that Heard was a reliable and trustworthy source of
information. That line of questioning is proper if the prosecutor then “dr[e]w out testimony
explaining how the information was corroborated and where it originated.” Id. Below, the
prosecutor drew out such testimony:
No. 18-6239 United States v. Crawford Page 17
Q. Okay. Now, why did -- why had you used Jerry Heard on multiple
occasions in the past?
A. I’d used him on occasion in the past. His information that he’s given me
was reliable. The cases, you know, the calls, meeting individuals,
retrieving the illicit narcotics from individuals after the deal, it was all
reliable and trustworthy.
Q. What if you determined that a CI -- Mr. Heard in this case, but a CI in
general, what if you determined that that CI is lying to you?
A. I stop using informants if they’re lying about their activities or any
criminal activities. It’s best practice just to stop using them.
Q. If a CI is doing work for multiple agencies, as we’ve heard you testify that
Mr. Heard was doing here, what does that reveal to you about the CI?
A. That if -- typically, other agencies will call each other. In this case, I
contacted Agent Josh Schlie with BCI and spoke with him directly before
using Jerry on my first occasion, and Agent Schlie vouched that Jerry was
a reliable, trustworthy informant, and he’d used him in the past.
***
Q. You just testified that Mr. Heard provided reliable information to you in
the past. Did he provide reliable information to you in this case?
A. Yes.
Q. Had Mr. Crawford, in fact, sold cocaine in the past?
A. Yes.
Q. And Mr. Heard provided you with that information, correct?
A. Well, yes. He provided that information, plus I looked up Mr. Crawford’s
criminal history and verified it myself.
Q. Okay. Mr. Crawford did, in fact, live in Florence, Kentucky; is that
correct?
A. That is correct.
Q. And the CI provided you with that information, correct?
A. He knew that Crawford was living in Kentucky. He didn’t know
specifically where.
Q. Okay. Did Mr. Crawford drive the car that the CI said he was, the BMW?
A. Yes.
This exchange, unlike the one in Francis, safely falls on the right side of the propriety
line. While the prosecutor questioned Nelson as to whether Heard was reliable, the prosecutor
No. 18-6239 United States v. Crawford Page 18
also asked several questions to draw out why Nelson had reached that conclusion. Nelson in turn
explained the steps he had taken to confirm Heard’s past reliability as well as his efforts to
corroborate information Heard had provided about Crawford. Finally, Nelson listed information
provided by Heard that had proved both true and relevant to the investigation. As these efforts
reflect, the prosecutor did not “lead [the jury] to believe that [he] was implying a guarantee of
truthfulness based on facts outside the record.” Francis, 170 F.3d at 551. Rather, he emphasized
how the record validated the informant’s credibility. Because the facts demonstrating why Heard
was truthful and reliable were presented to the jury, no plain error occurred.
III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.