United States v. Perry , 247 F. App'x 712 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0654n.06
Filed: September 5, 2007
No. 05-1034
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT OF
) MICHIGAN
CHRISTOPHER SCOTT PERRY, )
) OPINION
Defendant-Appellant. )
)
)
BEFORE: DAUGHTREY and GIBBONS, Circuit Judges, and SCHWARZER,* District
Judge
WILLIAM W SCHWARZER, District Judge. Christopher Scott Perry appeals his
conviction on ten counts of manufacturing, possessing and distributing methamphetamine and
related controlled substances offenses. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii) & 846; 21 U.S.C.
§§ 841(a)(1) & 841(b)(1)(C) and 18 U.S.C. § 2; 21 U.S.C. § 844(a) and 18 U.S.C. § 2; 21 U.S.C.
§ 844(a) and 18 U.S.C. § 2; 18 U.S.C. §§ 924(c)(1)(A)(I) & 2; 18 U.S.C. §§ 922(g)(3) &
924(a)(2); 21 U.S.C. §§ 856(a)(1) & (b) and 18 U.S.C. § 2; 21 U.S.C. § 858; 21 U.S.C. § 844(a);
18 U.S.C. §§ 922(g)(3) & 924(a)(2). On appeal Perry contends that products of the search of 530
North Coolidge Street should have been suppressed and that two of the counts of conviction were
multiplicitous. Finding the contentions without merit, we affirm.
*
The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.
No. 05-1034
United States of America v. Christopher Scott Perry
FACTS AND PROCEDURAL HISTORY
On February 6, 2003, police executed a search warrant at 530 North Coolidge Street in
Harrison, Michigan. In a pole barn on the property, officers found and arrested Christopher Perry
and Kenneth Kenny.1 Within the barn officers discovered a partitioned area that contained a
methamphetamine manufacturing lab. Officers also uncovered sixty weapons on the property.
The magistrate judge issued the search warrant based on an affidavit by Detective Daniel
King. The affidavit described Detective King’s experience and explained that much of the
information came from an interview with a named informant. The informant, while in a
relationship with Joseph Kozma, had received methamphetamine from him and had helped him
purchase numerous items necessary for the manufacture of methamphetamine. She indicated that
Kozma had associates, including Perry and Kenny, who manufactured methamphetamine on the
530 North Coolidge Street property. In late December 2002, she saw boxes containing
methamphetamine and marijuana on the property. On February 1, 2003, while the informant was
looking for Kenny at 530 North Coolidge Street, Kozma told her Kenny could not come out of
the pole barn because he was “cooking.” To the informant this meant Kenny was manufacturing
methamphetamine. On the same occasion at 530 North Coolidge Street, she saw people smoking
marijuana and Kozma purchasing marijuana inside a trailer located on the property. Through
driving records, King confirmed that two other associate of Kozma, Nicky and Candy Searfoss,
1
This panel has disposed of Kenny’s claims in a separate, published opinion.
United States v. Kenny, No. 05-2195.
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No. 05-1034
United States of America v. Christopher Scott Perry
resided at 530 North Coolidge Street.2
Perry’s pretrial motion to suppress the evidence obtained during the search of 530 North
Coolidge Street was denied. At trial Perry moved for acquittal under Rule 29, arguing that count
two was multiplicitous with count nine and count seven was multiplicitous with count twelve.
The court denied the motion. On May 4, 2004, the jury convicted Perry on ten counts. The court
sentenced Perry to concurrent terms of 235 months, 120 months, and 12 months, with a 60 month
consecutive sentence. Perry timely appealed.
DISCUSSION
I.
“When reviewing decisions on motions to suppress, this court will uphold the factual findings
of the district court unless clearly erroneous, while legal conclusions are reviewed de novo.” United
States v. Weaver, 99 F.3d 1372, 1376 (6th Cir. 1996). The magistrate judge’s decision to issue the
warrant is given great deference, with this court determining whether the magistrate judge “had a
substantial basis for finding that the affidavit established” a “‘fair probability,’ given the totality of
the circumstances, that contraband or evidence of a crime will be found in a particular place.”
United States v. Loggins, 777 F.2d 336, 338 (6th Cir. 1985) (per curiam).
The crux of Perry’s argument on appeal is not that the facts within the affidavit could not
support probable cause but that the information provided by the informant was unreliable because
King provided scant corroboration and the informant’s motives for talking to the police were
2
Based on another search warrant, officers searched Perry’s residence, finding multiple
weapons and 343.91 grams of marijuana.
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No. 05-1034
United States of America v. Christopher Scott Perry
omitted. “When a witness has seen evidence in a specific location in the immediate past [24 hours],
and is willing to be named in the affidavit, the ‘totality of the circumstances’ presents a ‘substantial
basis’ for conducting a search for that evidence.” United States v. Pelham, 801 F.2d 875, 878 (6th
Cir. 1986); see also United States v. Miller, 314 F.3d 265, 270-71 (6th Cir. 2002) (similar facts to
Pelham and noting that a first-time informant's information can be reliable when they are named and
they provide detailed information); United States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000)
(informant observed cocaine seventy-two hours before issuance of the warrant). Here, the affidavit
established the informant had the experience necessary to identify methamphetamine and had
observed both methamphetamine and marijuana on the property slightly over a month prior and five
days prior to the issuance of the warrant. While these observations are outside the twenty-four hour
window of Pelham and Miller, they are not too remote in time and have the benefit of establishing
ongoing criminal activity. Further, the officers in Pelham and Miller only corroborated the
informants’ facts by conducting drive by identifications with the informants in the officers’ vehicle.
Miller, 314 F.3d at 267; Pelham, 801 F.2d at 876. Here, King confirmed that one of Kozma’s
associates, Nicky Searfoss, resided at 530 North Coolidge Street. Under Pelham and Miller, this
corroboration, when combined with the informant’s detailed statements—some of which were
against her penal interest, see United States v. Barone, 584 F.2d 118, 122 (6th Cir. 1978)—made her
statements sufficiently reliable to be used in support of the probable cause determination.
Additional information describing the informant’s romantic involvement with Kozma and
her alleged status as a suspect in an arson investigation would not make her statements any less
reliable. On appeal, Perry cites no case law in support of the proposition that “critical information
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No. 05-1034
United States of America v. Christopher Scott Perry
regarding [an informant’s] reason for misdirecting law enforcement[’s] attention away from [her]”
should have been included. Certainly, Perry has not met the burden of showing that “specified
portions of the affiant’s averments are deliberately or recklessly false.” United States v. Atkin, 107
F.3d 1213, 1216 (6th Cir. 1997) (quotation omitted) (stating that material omissions are less likely
to raise an issue under Franks v. Delaware, 438 U.S. 154 (1978)); see also Pelham, 801 F.2d at 878
(affidavit that did not state that the informant was under arrest when he made the statements was
sufficient to support probable cause). Accordingly, the motion to suppress was properly denied.
II.
Perry contends that count two, manufacturing methamphetamine, was multiplicitous with
count nine, creating a substantial risk of harm to human life while manufacturing and attempting to
manufacture methamphetamine. He also contends that counts seven and twelve, both involving
possession of firearms, were multiplicitous. He originally raised this claim at the conclusion of the
government’s proofs and renewed the claim at the close of all the evidence. The district court denied
both motions in reference to counts two and nine but reserved ruling on counts seven and twelve.3
As an initial matter, the government argues Perry waived this issue because he did not raise
it prior to trial. This argument is correct with regard to Perry’s right to appeal any issue he may have
with the indictment itself. However, under United States v. Abboud, Perry has not waived his right
to object to “the resulting substantive error of multiple sentences in violation of the Double Jeopardy
Clause.” United States v. Abboud, 438 F.3d 554, 567 (6th Cir. 2006). Perry argued this substantive
3
The district judge never explicitly denied the motion for counts seven and twelve, but he
did impose judgment on June 13, 2005.
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United States of America v. Christopher Scott Perry
error each time he brought a motion, and he again raised the issue on appeal. Thus, Perry has not
waived this issue.
Although neither side cites to a standard of review, Perry’s argument lacks merit under any
standard. This court’s test for whether two statutes are multiplicitous does not depend on the factual
circumstances of a particular case. United States v. Zackert, 783 F.2d 677, 679 (6th Cir. 1986).
Instead, a “court looks to whether every violation of one statute entails a violation of another.” Id.
If every violation of one does not entail violation of the other, “the appellant must offer evidence that
Congress did not intend to allow separate punishment for the two different offenses.” Id. A
defendant may violate 21 U.S.C. § 841(a)(1) (manufacturing, distributing or possessing a controlled
substance) without violating 21 U.S.C. § 858 (creating a substantial risk of harm to human life while
attempting to manufacture a controlled substance) because one may possess or manufacture a
controlled substance in a manner which does not endanger others. And as the government argues,
a defendant can violate § 858 by attempting to manufacture a controlled substance in a harmful way
but not violate § 841 because the defendant fails to successfully complete the manufacturing process.
Further, Perry has failed to offer “evidence that Congress did not intend to allow separate
punishment for the two different offenses.”
Perry’s argument that counts seven and twelve are multiplicitous is likewise not well taken.
Count seven charged Perry with possessing firearms at 530 North Coolidge Street while being an
unlawful user of a controlled substance. Count twelve charged Perry with similar conduct at 4910
North Finley Lake Road. Under this court’s precedent, a defendant may be convicted of multiple
counts of possessing a firearm if he possessed those firearms at different locations. United States
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v. Adams, 214 F.3d 724, 728 (6th Cir. 2000); United States v. Vance, 724 F.2d 517, 518 (6th Cir.
1983). Counts seven and twelve involved possession at different locations and, consequently, were
not multiplicitous.
For the reasons stated, the judgment is AFFIRMED.
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