United States v. Sidney Brown , 715 F.3d 985 ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0140p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 12-1591
v.
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Defendant-Appellant. -
SIDNEY BROWN,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:11-cr-00150-1—Paul Lewis Maloney, Chief District Judge.
Argued: May 2, 2013
Decided and Filed: May 16, 2013
Before: MARTIN, GUY, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant.
Sally J. Berens, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan,
for Appellee. ON BRIEF: Scott Graham, SCOTT GRAHAM PLLC, Portage,
Michigan, for Appellant. Mark V. Courtade, UNITED STATES ATTORNEY’S
OFFICE, Grand Rapids, Michigan, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR. Circuit Judge. A jury convicted Sidney Brown of two
crimes: (1) possession with intent to distribute twenty-eight grams or more of cocaine
base and (2) possession of a firearm in furtherance of a drug-trafficking crime. Brown’s
appeal poses three questions. First, did the affidavit accompanying the search-warrant
application establish probable cause for the magistrate to issue the search warrant? We
hold that it did. Second, did the district court err by refusing to hold a Franks hearing?
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We hold that it did not. Third, did the jury’s convicting Brown of possession of a
firearm in furtherance of a drug-trafficking crime constitute a manifest miscarriage of
justice? We hold that it did not. Given the answers to these questions, we AFFIRM the
district court’s judgment.
A confidential informant told law enforcement that he had seen cocaine and what
he considered to be drug dealing at Sidney Brown’s house. A law-enforcement officer
applied for a warrant to search Brown’s home; in the affidavit accompanying the
application, the officer recounted what the informant had told him. A federal magistrate
issued the warrant and, upon executing it, law enforcement found cocaine, a Beretta
pistol, which Brown admitted was his, and $4,700 in cash, in Brown’s home. Brown
moved to suppress the evidence seized, arguing that the affidavit failed to establish
probable cause for the search; in the alternative, Brown argued for a Franks hearing
because he asserted that the affidavit contained false statements. The district court, in
a written opinion, denied the motion.
At trial, at the close of the prosecution’s case, Brown moved, under Federal Rule
of Criminal Procedure 29, for acquittal on all counts. At the close of all the evidence,
however, Brown did not renew the motion. A federal jury found Brown guilty of all
three counts in the indictment: (1) possession with intent to distribute twenty-eight grams
or more of cocaine base, a violation of 21 U.S.C. sections 841(a)(1), (b)(1)(B)(iii);
(2) possession of a firearm in furtherance of a drug-trafficking crime, in violation of
18 U.S.C. section 924(c)(1)(A)(i); and (3) possession, as a felon, of a firearm, in
violation of 15 U.S.C. section 922(g)(1). The district court sentenced him to seventeen-
and-a-half years’ imprisonment. Brown timely appealed only counts (1) and (2).
On appeal, Brown argues that the district court erred both in denying his motion
to suppress and in rejecting his argument that the officer’s affidavit did not provide
probable cause for the magistrate to issue the search warrant. When reviewing a district
court’s order denying a defendant’s motion to suppress, we review for clear error the
district court’s factual findings, but we review de novo the district court’s application
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of the law to those facts. United States v. Keith, 559 F.3d 499, 503 (6th Cir. 2009)
(citing United States v. Garcia, 496 F.3d 495, 502 (6th Cir. 2007)).
The district court held no fact-finding hearing in conjunction with Brown’s
motion to suppress; rather, the court reviewed the affidavit and held that it provided
probable cause for the magistrate to issue the search warrant. Therefore, we will review
de novo the court’s legal conclusion that the affidavit provided probable cause. United
States v. Leake, 998 F.2d 1359, 1362 (6th Cir. 1993). Given the de novo standard of
review, where, as here, the district court reviewed the magistrate’s probable cause
determination, we owe the district court’s conclusion no particular deference. Id. at
1362–63.
Yet we must give great deference to a magistrate’s determination of probable
cause. United States v. Greene, 250 F.3d 471, 478 (6th Cir. 2001) (citing United States
v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc), cert. denied, 531 U.S. 907 (2000)
(parallel citations omitted); United States v. Finch, 998 F.2d 349, 352 (6th Cir. 1993);
United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)). Consequently, we may
only reverse a magistrate’s decision to grant a search warrant if the magistrate arbitrarily
exercised his or her authority. Id. (citing Allen, 211 F.3d at 973; Finch, 998 F.2d at 352;
United States v. Swihart, 554 F.2d 264, 267–68 (6th Cir. 1977)).
We review the probable-cause sufficiency of an affidavit to ascertain “‘whether
the magistrate had a substantial basis for finding that the affidavit established probable
cause to believe that the evidence would be found at the place cited.’” Id. (quoting
Davidson, 936 F.2d at 859). Probable cause exists “‘when there is a ‘fair probability,’
given the totality of the circumstances, that contraband or evidence of a crime will be
found in a particular place.’” Id. at 479 (quoting Davidson, 936 F.2d at 859). In
reviewing whether the affidavit supports the magistrate’s probable-cause determination,
we must review the affidavit in a commonsense, rather than a hypertechnical, manner.
Id. (citing Allen, 211 F.3d at 973; Davidson, 936 F.2d at 859). This means that we must
review the affidavit based on “a ‘totality of the circumstances’ determination, rather than
a line-by-line scrutiny.” Id. (quoting Allen, 211 F.3d at 973).
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Brown argues that Officer Frederick’s affidavit did not establish probable cause
because it did not describe sufficiently the basis for the conclusion that the confidential
informant was reliable. Frederick’s affidavit stated that Frederick had been in contact
with MacKellar of the Narcotics Enforcement Team, and had learned that the informant
“had been used by [the Narcotics Enforcement Team] in numerous other investigations
and provided information that ha[d] been corroborated and shown to be reliable by [the
Narcotics Enforcement Team], the Michigan State Police and the Grand Rapids Police
Department.” Brown criticizes this portion of Frederick’s affidavit for “containing no
explanation indicating that [the informant] provided any information regarding drug
trafficking or drug convictions.”
Brown’s attack on this portion of the affidavit seems hypertechnical. Frederick
might have specified the exact nature of the information that the informant had provided
to law enforcement agencies, but such a level of specificity is not necessary; a common
sense reading of this portion of the affidavit suggests that the informant’s information
did pertain to drug trafficking (and drug convictions) precisely because the Narcotics
Enforcement Team and other law-enforcement agencies had successfully used it.
Frederick’s affidavit also stated that he was “personally aware that [the
informant] ha[d] provided information that has led to the prosecution and conviction of
at least two federal defendants in the Western District of Michigan, as well as other
persons convicted by Michigan authorities.” Brown criticizes this part of the affidavit
for failing to “identify the types of crimes involved or any information identifying when
the activity occurred or how [Frederick] was involved.”
But, again, a commonsense reading would suggest that the crimes involved were
drug related. Frederick might have added what crimes the convictions were for, but our
cases do not require an affiant to provide such detail—“[t]he affidavit is judged on the
adequacy of what it does contain, not on what it lacks, or on what a critic might say
should have been added.” Allen, 211 F.3d at 975.
Moreover, our precedent “clearly establishes that the affiant need only specify
that the confidential informant has given accurate information in the past to qualify as
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reliable.” Greene, 250 F.3d at 480 (citing Allen, 211 F.3d at 975; Finch, 998 F.2d at
352; United States v. Dudek, 560 F.2d 1288, 1292 (6th Cir. 1977)). In Greene, we
upheld a search warrant in which the affiant, a law-enforcement officer, averred that the
confidential informant had assisted federal and state law enforcement officials in the past
and that this information had resulted in numerous felony arrests. Greene, 250 F.3d at
480.
Here, Frederick’s statement that he was personally aware that the informant had
provided information leading to convictions of at least two federal defendants suffices,
under Greene and the cases it cites, to establish that the informant had given accurate
information in the past and thus that the informant was reliable.
Brown also argues that Frederick failed to corroborate sufficiently the
informant’s statements. Brown argues that, while Frederick corroborated the
informant’s factual assertion that Brown was on parole, Frederick failed to corroborate
that he was on a “tether” and totally failed to corroborate the informant’s assertions
about witnessing drug transactions at Brown’s house.
Brown’s argument fails because United States v. Allen, 211 F.3d 970 (6th Cir.
2000) (en banc) cert. denied, 531 U.S. 907 (parallel citations omitted), does not
invariably require an affiant to provide corroboration for a confidential informant’s
statements contained in an affidavit supporting a search-warrant application. Allen, 211
F.3d at 976. In Allen, we held that, if a confidential informant—personally known by
the affiant to be reliable—alleged direct, personal observation of criminal activity, then
the affiant would not have to include in the affidavit further corroboration of the
informant’s allegations. Allen, 211 F.3d at 976. We reasoned that a requirement that the
police further corroborate such information from a confidential informant would aid
lawbreakers, “as detectives tried to conduct surveillance in crack-ridden neighborhoods
without themselves being detected and their suspects alerted.” Id. Moreover, we added,
“the additional time thus added to the process by mandating an independent police
investigation, following a [confidential informant’s] contact would provide a further
No. 12-1591 USA v. Brown Page 6
advantage to drug dealers’ already highly mobile, hit-and-run operations.” Id. We
declined “to handicap the state in that way.” Id.Here, as in Allen, a confidential informant known to the officer to be reliable
provided first-hand, detailed observations of cocaine—as well as what appeared to be
Brown himself selling drugs—at Brown’s own house. Allen did not require Officer
Frederick or his colleagues to corroborate the confidential informant’s observations by,
for example, surveilling Brown’s home.
Based on the totality of the circumstances, and given our necessarily deferential
review of the magistrate’s probable-cause determination, the district court did not err in
denying Brown’s motion to suppress.
Next, we address Brown’s argument that the district court erred in denying his
motion for a Franks hearing because the affidavit contained “false statements integral
to the probable cause determination.” We review the district court’s denial of a hearing,
under Franks v. Delaware, 438 U.S. 154 (1978), using the same standard as for the
denial of a motion to suppress; that is, we review for clear error the district court’s
factual findings, and we review de novo the district court’s conclusions of law. United
States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir. 2008) (quoting United States v.
Graham, 275 F.3d 490, 505 (6th Cir. 2001) (citing United States v. Hill, 142 F.3d 305,
310 (6th Cir. 1998) (quotation marks omitted)). Here, the district court did not hold an
evidentiary hearing; rather, the court decided Brown’s Franks motion on the basis of
what Brown said the evidence (a recorded conversation) would show if the district court
were to grant his Franks-hearing motion. Therefore, we review de novo the district
court’s determination that Brown was not entitled to a Franks hearing.
To deserve a Franks hearing to challenge the validity of a search warrant, a
defendant must make a substantial preliminary showing of two elements: first, a
defendant must show that the affiant included—either knowingly and intentionally or
with reckless disregard for the truth—a false statement in the affidavit. Mastromatteo,
538 F.3d at 545 (quoting Graham, 275 F.3d at 490; Franks, 438 U.S. at 155–56)
(quotation marks omitted)).
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Here, Brown proffered no evidence that the affiant, Frederick, either knowingly
and intentionally, or with reckless disregard for the truth, included a false statement in
the affidavit. Brown claimed to have a recording of a conversation—which occurred
sometime after the search warrant issued—between Brown’s “personal associate” and
the informant, in which the informant told the personal associate that Williams, Brown’s
live-in girlfriend, was not present at the barbecue where the informant allegedly saw
Brown selling cocaine. Brown also claimed, as he does in his brief, that the informant
would have testified that the informant spoke with Frederick and asked him why
Frederick included in the affidavit the informant’s (supposedly false) statement that
Williams was present when the cocaine was in view. Brown claims that he has evidence
that Frederick told the informant that Frederick erred in including this detail about
Williams’ presence in his affidavit; that, in Frederick’s words, he “must have typed it up
wrong.” According to Brown, this shows that a “key fact in the affidavit was false or
presented recklessly” such that it “casts doubt on all of the allegations contained in the
affidavit.”
This is hyperbole. At most, the informant’s statement about Frederick saying
that he “must have typed it up wrong” merely shows that Frederick was negligent in
including the informant’s statement that Williams was present when the drugs were in
view.
But even if we were to hold that Frederick added the statement knowingly and
intentionally, or with reckless disregard for its truth, Brown cannot prove the second
element to entitle him to a Franks hearing—Brown cannot show that the probable-cause
finding required the allegedly false statement. Id. For even if “‘material that is the
subject of the alleged falsity or reckless disregard is set to one side,’” as long as “‘there
remains sufficient content in the warrant affidavit to support a finding of probable cause,
no hearing is required.’” Mastromatteo, 538 F.3d at 545 (quoting Franks, 438 U.S. at171–72) (footnote omitted). An affidavit, with the false part excised, will still establish
probable cause if it “‘provide[s] the magistrate judge with a basis for finding there was
No. 12-1591 USA v. Brown Page 8
a fair probability that contraband or evidence of a crime would be found at’ the stated
location.” Mastromatteo, 538 F.3d at 545 (quoting Graham, 275 F.3d at 504).
Here, even without Frederick’s statement about Williams—that Williams was
present when the cocaine was in view—the affidavit supports probable cause, given its
richly detailed observations of drug activity at Brown’s home (e.g., including the
quantities of drugs, that they were in baggies, etc.). Because Brown has failed to show
both that Frederick himself—either knowingly and intentionally or with reckless
disregard for the truth—made a false statement in the affidavit and that the probable-
cause determination depended on the allegedly false statement, we must affirm the
district court’s judgment denying Brown a Franks hearing.
Lastly, we address Brown’s argument that we should reverse his conviction of
possession of a firearm in furtherance of a drug-trafficking crime because the
government presented insufficient evidence to establish his guilt beyond a reasonable
doubt. His argument fails because Brown’s failure to renew his motion for acquittal
constricts our (already constricted) standard of review.
Generally, we review the sufficiency of the government’s evidence to determine
whether, “‘after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.’” United States v. White, 932 F.2d 588, 589 (6th Cir. 1991) (per
curiam) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (parallel citations
omitted)).
But a defendant’s failure, after the close of all the evidence at trial, to renew his
motion for acquittal on the basis of the insufficiency of the evidence “limits our review
to determining whether there was a ‘manifest miscarriage of justice.’” United States v.
Street, 614 F.3d 228, 236 (6th Cir. 2010) (quoting United States v. Childs, 539 F.3d 552,
558 (6th Cir. 2008) (quoting United States v. Price, 134F.3d 340, 350 (6th Cir. 1998)).
Here, although the trial transcript shows that Brown’s counsel did move,
pursuant to Federal Rule of Criminal Procedure 29, for entry of a judgment of acquittal
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on each of the counts—and specifically argued that the government failed to prove the
“in furtherance” element required for a conviction of possession of a firearm in
furtherance of a drug-trafficking crime—the transcript also shows that he failed to renew
this motion at the close of all the evidence. At oral argument, Brown’s attorney
conceded this failure, which is “nearly fatal to his sufficiency challenge,” Street, 614
F.3d at 236, because it constrains our review of the record to that of finding a manifest
miscarriage of justice. We may only find a miscarriage of justice where “the record is
‘devoid of evidence pointing to guilt.’” United States v. Paige, 470 F.3d 603, 608 (6th
Cir. 2006) (quoting United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998) (quoting
United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir. 1989)).
Here, the record contains evidence pointing to Brown’s guilt in violating section
924(c)(1)(A)(i), which provides for a mandatory five-year prison term for “any person
who . . . in furtherance of any [drug-trafficking] crime, possesses a firearm.” 18 U.S.C.
§ 924(c)(1)(A)(i). To prove a violation of this section, and specifically the “in
furtherance element,” the government must show “‘a specific nexus between the gun and
the crime charged.’” United States v. Gill, 685 F.3d 606, 611 (6th Cir. 2012) (quoting
United States v. Ham, 628 F.3d 801, 808 (6th Cir. 2011)). To determine whether this
specific nexus exists, we consider six factors—the Mackey factors—first adopted in
United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001), cert. denied, 534 U.S. 1097(2002). We consider this non-exclusive list of six factors to help distinguish possession
in furtherance of a crime from “innocent possession of a wall-mounted antique or an
unloaded hunting rifle locked in a cupboard.” Id. at 462.
For example, in Mackey, we concluded that a reasonable jury could infer that the
purpose of a firearm was to provide defense or deterrence in furtherance of the drug
trafficking for which a defendant was arrested. Id. at 462–63. We so concluded because
the gun was a loaded, short-barreled shotgun found in the living room of a crack house,
easily accessible to the defendant, and which was located near scales and razor blades
(used to process drugs for sale). Id. at 462. The police stopped the defendant near the
gun, and found that he possessed cocaine and a large amount of cash. Id.
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The prosecution did provide evidence supporting each of the six Mackey factors
and pointing to Brown’s guilt in possessing a gun that he used in furtherance of his
selling cocaine. Under Mackey, first we consider whether the gun was “‘strategically
located so as to be quickly and easily available for use during [a drug] transaction.” Gill,
685 F.3d at 611 (quoting Ham, 628 F.3d at 808) (quoting Mackey, 265 F.3d at 462)).
The jury heard testimony from Frederick, who testified that the gun’s location under the
mattress in the bedroom constituted a strategic location: despite the bedroom’s second-
floor location, Frederick testified that the house was small enough so that someone on
the first floor could retrieve the gun within ten to fifteen seconds. Frederick further
testified that the gun was found within several feet of $4,700 in cash, and Brown’s
counsel conceded as much at oral argument. From such facts a jury could reasonably
infer that the gun was strategically located to be quickly and easily used during a drug
deal.
Second, we consider whether the gun was loaded. Gill, 685 F.3d at 611 (quoting
Ham, 628 F.3d at 808–809) (quotation marks omitted). The jury heard Frederick testify
that the gun was loaded—there were “rounds in the chamber,” so that the gun was
“ready to go.”
Third, we consider the type of weapon. Id. The jury heard the officer who found
the pistol testify that it was a .40 caliber Beretta, a high-powered gun with the serial
number scratched off, a characteristic that, as the officer testified, in his experience
meant either the gun had been used in a crime or was going to be used in a crime.
Fourth, we consider the legality of the weapon’s possession. Id. Brown
conceded at trial before the jury that he had a prior felony conviction, therefore making
his possession of the pistol illegal (and Brown does not appeal his conviction for felony
possession).
Fifth, we consider the type of drug activity conducted. Id. The jury heard an
officer testify that Brown had an eighth of an ounce of crack cocaine in his pocket when
he was arrested. The jury also heard an officer testify that Brown admitted he would
“whip” or convert powder cocaine into crack cocaine because he made more money that
No. 12-1591 USA v. Brown Page 11
way, and that he sold eight balls, quarter ounces, and smaller amounts in the Holland,
Michigan area. Another officer testified that he found a document which his experience
led him to believe was a ledger used to record drug transactions.
Sixth, we consider the time and circumstances under which the firearm was
found. Id. Here, the jury heard testimony that law-enforcement officers found the gun
during the same search in which they found the cocaine.
In sum, the prosecution proffered enough evidence that Brown kept the loaded
Beretta (with a filed-off serial number) in a strategic location to provide defense or
deterrence in furtherance of drug trafficking. The jury’s conviction of Brown on this
count did not constitute a manifest miscarriage of justice.
For the preceding reasons, we AFFIRM the district court’s judgment.