United States v. Randy Skarda ( 2016 )


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  •                   United States Court of Appeals
                                 For the Eighth Circuit
                             ___________________________
    
                                     No. 15-3889
                             ___________________________
    
                                  United States of America
    
                            lllllllllllllllllllll Plaintiff - Appellee
    
                                               v.
    
                                     Randy Scott Skarda
    
                           lllllllllllllllllllll Defendant - Appellant
                                           ____________
    
                         Appeal from United States District Court
                        for the District of North Dakota - Bismarck
                                       ____________
    
                              Submitted: November 14, 2016
                                Filed: December 22, 2016
                                     ____________
    
    Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                              ____________
    
    BEAM, Circuit Judge.
    
          Randy Scott Skarda appeals his convictions for distribution of
    methamphetamine, conspiracy to distribute methamphetamine, distribution of
    cocaine, and possession of a firearm by a drug user, arguing that the district court1
    
          1
           The Honorable Daniel L. Hovland, United States District Judge for the District
    of North Dakota.
    erred in denying his motion to suppress and his motion for a new trial. For the
    reasons discussed below, we affirm.
    
    I.    BACKGROUND
    
           Lynn Starr was arrested at her home in Ryder, North Dakota, on October 7,
    2013, for drug trafficking offenses. During a search of her home, police found
    marijuana, methamphetamine, scales, plastic bags, and a cell phone. FBI Special
    Agent Coulter interviewed Starr and reviewed the list of contacts in her cell phone.
    Starr identified Skarda, who was listed in her cell phone, as one of her long-time
    methamphetamine suppliers. She was unable to provide Skarda's address but gave
    a description of the property. She described Skarda's residence as a farmstead or
    homestead with multiple buildings, a large, metal quonset-type building next to the
    residence, and equipment on the property. The residence was a one bedroom metal
    structure with water and electricity. She also noted that the home was undergoing
    construction. Specifically, Skarda had poured a foundation, built walls, and was
    beginning to insulate the walls and complete woodwork. Starr acknowledged that the
    property was possibly Skarda's parents' homestead.
    
          Based on Starr's testimony, Coulter applied for a search warrant for property
    in Keene, North Dakota, associated with Skarda. The warrant application listed the
    premises as "10952 32nd Street Northwest, Keene, North Dakota" (the 10952
    address). The physical address came from North Dakota Department of
    Transportation records, which listed the 10952 address as Skarda's residence. The
    affidavit accompanying the application also contained testimony from a confidential
    source (CS-5), who stated that he or she purchased methamphetamine from both
    Skarda and Starr. CS-5 purchased methamphetamine from Skarda at Skarda's home,
    where he kept the methamphetamine in a quonset on his property. Magistrate Judge
    Klein signed the search warrant for the 10952 address at 4:15 p.m. on October 7,
    2013.
    
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           Before executing the warrant, police officers gathered to brief the operation.
    McKenzie County Deputy Sheriff Johansen, who lived near Skarda's residence and
    knew the area, noticed that the address on the search warrant was not Skarda's
    residence and notified Coulter. Johansen then contacted the McKenzie County
    dispatch and retrieved the correct address for Skarda, which was 10841 28th Street
    Northwest, Keene, North Dakota (the 10841 address). Johansen and FBI Special
    Agent Bennett then went to the 10841 address to ensure the property matched Starr's
    description. Bennett identified a metal structure, equipment on the property, and a
    residence under construction. Bureau of Indian Affairs Special Agent White viewed
    the 10841 address on Google Earth, noting a residence under construction and a
    quonset, which also confirmed that Starr's testimony was describing the 10841
    address. Following this verification, at 6:02 p.m. on October 7, 2013, Coulter called
    the law clerk for another magistrate judge who was able to connect him to Magistrate
    Judge Klein at approximately 6:16 p.m. After Magistrate Judge Klein placed Coulter
    under oath, Coulter explained that the address on the search warrant was incorrect and
    told her that the correct address was 10841 28th Street Northwest. He explained that
    the 10952 address came from public records that he mistakenly believed to be correct
    when he submitted the warrant application. However, local police officers familiar
    with Keene noticed the mistake. Magistrate Judge Klein instructed Coulter to write
    in the correct address and initial the changes.
    
          Police officers executed the search warrant at the 10841 address at 6:58 p.m.
    on October 7, 2013. They found drugs, drug-related items, cash, and firearms. In the
    quonset they found a firearm, ammunition, 138 grams of marijuana, small amounts
    of cocaine and methamphetamine, a glass smoking device, hypodermic needles and
    syringes, and plastic bags. In the house they found numerous firearms, $85,000 in
    cash, and a red bag containing methamphetamine and a glass smoking device that
    belonged to Skarda's girlfriend, Tana Boots. While the search was ongoing, Skarda
    and Boots arrived at the residence. Shots were fired, and Skarda was injured. Law
    
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    enforcement then searched Skarda's vehicle and found a firearm, approximately
    $21,000 in cash, and Boots' cellular phone. A copy of the search warrant with
    Coulter's handwritten and initialed changes was left at the residence.
    
           On October 10, 2013, Magistrate Judge Klein issued a supplemental search
    warrant reciting the events that occurred on October 7 regarding the incorrect address
    and handwritten changes on the search warrant. However, she inadvertently stated
    that the change request was made on October 8. On October 25, 2013, the
    government filed a Rule 36 motion to correct the supplemental search warrant so that
    it correctly noted the date Coulter requested the change. Magistrate Judge Klein
    granted the motion. On March 27, 2014, Skarda was charged with distribution of
    methamphetamine, conspiracy to distribute methamphetamine, distribution of
    cocaine, possession of a short-barreled rifle, and possession of a firearm by a drug
    user. Prior to trial, Skarda filed a motion to suppress, arguing that the search of his
    property on October 7, 2013, was illegal because the warrant was not supported by
    probable cause. Skarda also objected to Magistrate Judge Klein's failure to record the
    telephone conversation with Coulter, arguing that it violated Rules 41 and 4.1 of the
    Federal Rules of Criminal Procedure. The district court denied the motion holding
    that "the premises to be searched were described with sufficient particularity and
    adequate probable cause existed to support the issuance of the search warrant." The
    district court further held that although Magistrate Judge Klein violated Rule 41,
    suppression was not the appropriate remedy. Finally, the district court held that "even
    if probable cause did not exist to issue the warrant in this case, the 'good faith
    exception' to the exclusionary rule . . . would save the evidence seized from being
    suppressed."
    
           At trial, Starr testified that she had been purchasing methamphetamine weekly
    from Skarda for nine to ten months prior to her arrest. Several purchases occurred at
    Skarda’s home, and the three ounces of methamphetamine found when she was
    arrested in October 2013 came from Skarda. Shelly Suelzle, who was arrested in
    
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    October 2013 for possession of methamphetamine, cocaine, and marijuana, testified
    that she obtained methamphetamine and cocaine from Skarda at her home in North
    Dakota. Frank Black testified that he purchased methamphetamine from Skarda at
    Skarda's residence from 2012 to 2014. He also stated that a week before trial, while
    gambling at a casino in North Dakota, Skarda sat down next to him, cursed at him,
    and told him that he should have kept his "F'ing mouth shut." As Black was leaving
    the casino, Skarda remarked, "You better go home." The district court allowed
    Black's testimony regarding the casino encounter as evidence of conscious guilt,
    despite Skarda's objection. Starr's sons, Anthony and Blue Sky Starr, also
    participated in the distribution of methamphetamine. Blue Sky went with Starr to
    meet Skarda at Skarda's residence on at least two occasions. Thus, Blue Sky was able
    to identify Skarda's residence from photographs admitted at trial.
    
           The jury found Skarda guilty of all counts except possession of a short-barreled
    rifle. Skarda then filed a motion for judgment of acquittal or new trial on the basis
    that the district court erred by admitting Black's testimony about the casino encounter.
    The motion was denied, and Skarda was sentenced to 120 months for each count,
    with the sentences running concurrently. Skarda now appeals, arguing that the
    district court erred in denying his motion to suppress because (1) changing the
    address on the search warrant violated Rule 41 and Rule 4.1 of the Federal Rules of
    Criminal Procedure; (2) the warrant was not based on any particularized probable
    cause; and (3) the good faith exception did not save the illegal search. Skarda also
    argues that the district court erred in denying his motion for a new trial because
    allowing Black's testimony was an abuse of discretion.
    
    II.   DISCUSSION
    
          A.     Motion to Suppress
    
           "When reviewing a district court's denial of a suppression motion, we review
    for clear error the district court's factual findings and review de novo whether the
    
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    Fourth Amendment was violated." United States v. Welch, 
    811 F.3d 275
    , 279 (8th
    Cir.) (quoting United States v. Bell, 
    480 F.3d 860
    , 863 (8th Cir. 2007)), cert. denied,
    
    136 S. Ct. 2476
     (2016).
    
                 1.     Rule 41 and Rule 4.1 of the Federal Rules of Criminal
                        Procedure
    
           Skarda argues that changing the address on the search warrant violated Rule
    41 and Rule 4.1 of the Federal Rules of Criminal Procedure and further invalidated
    the search warrant. Rule 41(d)(3) states, "In accordance with Rule 4.1, a magistrate
    judge may issue a warrant based on information communicated by telephone or other
    reliable electronic means." Rule 4.1(b) lists the procedures for issuing a warrant by
    telephone or other electronic means. "The judge must place under oath–and may
    examine–the applicant and any person on whose testimony the application is based."
    Fed. R. Crim. P. 4.1(b)(1). Where the applicant only verifies information contained
    in an affidavit, the judge need only "acknowledge the attestation in writing on the
    affidavit." Id. 4.1(b)(2)(A). However, where the judge allows additional testimony
    or exhibits, he or she must:
    
          (i) have the testimony recorded verbatim by an electronic recording
          device, by a court reporter, or in writing; (ii) have any recording or
          reporter's notes transcribed, have the transcription certified as accurate,
          and file it; (iii) sign any other written record, certify its accuracy, and
          file it; and (iv) make sure that the exhibits are filed.
    
    Id. 4.1(b)(2)(B).
    
          Because the phone conversation between Coulter and Magistrate Judge Klein
    was not recorded, it violated Rule 4.1. However, as the district court correctly held,
    suppressing the evidence was not the correct remedy. A violation of Rule 41 warrants
    exclusion only when (1) the violation is of constitutional magnitude; (2) the
    
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    defendant is prejudiced in that the search would not have taken place or would not
    have been as intrusive; or (3) there is evidence of an intentional and deliberate or
    reckless disregard for the rule. United States v. Freeman, 
    897 F.2d 346
    , 350 (8th Cir.
    1990).
    
           First, the violation was not one of constitutional magnitude. "The Warrant
    Clause of the Fourth Amendment requires that warrants (1) be issued by a neutral and
    detached magistrate, (2) contain a 'particular[] descri[ption of] the place to be
    searched, and the persons or things to be seized,' and (3) be based 'upon probable
    cause, supported by Oath or affirmation.'" United States v. Clyburn, 
    24 F.3d 613
    , 617
    (4th Cir. 1994) (quoting U.S. Const. amend. IV). There is no requirement that oral
    testimony in support of the warrant be recorded. Id. Similarly, "the Fourth
    Amendment does not require the issuing judge to record sworn supplementary oral
    testimony." United States v. Cote, 
    569 F.3d 391
    , 392-93 (8th Cir. 2009). Magistrate
    Judge Klein, a neutral magistrate, placed Coulter under oath before he provided
    information about the incorrect address on the search warrant. The constitutional
    requirements for the search warrant were met, and thus, there was no violation of
    constitutional magnitude.
    
          Second, Skarda was not prejudiced by the violation. Skarda claims that he was
    prejudiced because due to the lack of recording, there is no opportunity for
    meaningful review. However, there was meaningful review at the suppression
    hearing, and the entire record gives ample information for review by this court.
    Moreover, evidence will not be suppressed for a violation of Rule 41 unless the
    search would not have taken place or would have been less intrusive had the rule been
    followed. Freeman, 897 F.2d at 350. Here, there is no evidence that the search would
    not have occurred or would have been conducted differently had the phone call been
    recorded.
    
    
    
    
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           Third, there is no evidence of an intentional and deliberate or reckless disregard
    for the rule. As the district court noted, "recording the conversation would have been
    very difficult under the circumstances." The phone call occurred after normal court
    hours, and both parties were using cell phones. Thus, the failure to record the
    conversation appears to have been inadvertent, not intentional. Additionally, "the
    exclusionary rule is designed to deter police misconduct rather than to punish the
    errors of judges and magistrates." United States v. Leon, 
    468 U.S. 897
    , 916 (1984).
    According to Rule 4.1, any oversight in recording the telephone conversation is
    attributed to Magistrate Judge Klein, not Coulter. It was her duty to record the
    conversation. Fed. R. Crim. P. 4.1. Thus, "on the facts of this case, exclusion is an
    inapt remedy." United States v. Chaar, 
    137 F.3d 359
    , 362 (6th Cir. 1998). As such,
    even though the telephone call between Coulter and Magistrate Judge Klein and the
    resulting change in address on the search warrant violated Rule 41 and Rule 4.1, the
    violation does not warrant suppression of the evidence.
    
                 2.     Probable Cause
    
           Skarda also argues that the search warrant was invalid and the search illegal
    because the warrant was not based on particularized probable cause. According to
    Skarda, even after the warrant was corrected following the telephone call to
    Magistrate Judge Klein, there was only probable cause to search the property at the
    10952 address, not the 10841 address. We review the probable cause determination
    de novo. United States v. Gonzalez, 
    781 F.3d 422
    , 427 (8th Cir.), cert. denied, 
    136 S. Ct. 139
     (2015). However, we grant "great deference" to the initial determination
    that there was probable cause for the search. United States v. Smith, 
    581 F.3d 692
    ,
    694 (8th Cir. 2009). We will affirm the district court's denial of a motion to suppress
    "unless the decision is unsupported by substantial evidence, is based on an erroneous
    view of the applicable law, or in light of the entire record, we are left with a firm and
    definite conviction that a mistake has been made." United States v. Puckett, 466 F.3d
    
    
    
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    626, 629 (8th Cir. 2006) (quoting United States v. Vanhorn, 
    296 F.3d 713
    , 717 (8th
    Cir. 2002)).
    
           A magistrate judge may issue a search warrant "upon a showing of probable
    cause to believe that the legitimate object of a search is located in a particular place."
    Steagald v. United States, 
    451 U.S. 204
    , 213 (1981). A showing of probable cause
    requires "evidence of a nexus between the contraband and the place to be searched."
    United States v. Tellez, 
    217 F.3d 547
    , 550 (8th Cir. 2000). The court must make a
    "common-sense decision" based on the totality of the circumstances set forth in the
    affidavit as to whether "there is a fair probability that contraband or evidence of a
    crime will be found in a particular place." Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983).
    
           Here, law enforcement found methamphetamine on Starr that she purchased
    from Skarda. Starr also had Skarda's phone number in her cell phone. CS-5
    corroborated Starr's testimony about Skarda's drug dealing and stated that he or she
    had also purchased methamphetamine from Skarda. Starr gave a physical description
    of Skarda's residence, noting that it might possibly be Skarda's parents' homestead but
    emphasizing that Skarda lived there. She stated that the residence was a one-bedroom
    metal structure with water and electricity running to it that was currently under
    construction. She also noted that there was a large quonset metal structure next to the
    home, as well as equipment on the property. CS-5 substantiated Starr's physical
    description of Skarda's residence, noting that Skarda kept methamphetamine in the
    quonset on his farm property. The original address on the warrant was incorrect
    because the Department of Transportation records for Skarda were incorrect. The
    mistake was realized prior to the execution of the warrant, Johansen obtained the
    correct address from dispatch, the new address was verified, and the warrant was
    corrected. Thus, the affidavit established a clear nexus between drug dealing and
    Skarda's residence, such that the mere address change had no effect on the validity
    of the warrant.
    
    
    
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           Skarda further argues that the change in address interfered with the sufficiency
    of the description of the place to be searched.
    
          The test for determining the sufficiency of the description of the place
          to be searched is whether the place to be searched is described with
          sufficient particularity as to enable the executing officer to locate and
          identify the premises with reasonable effort, and whether there is any
          reasonable probability that another premise might be mistakenly
          searched.
    
    United States v. Gitcho, 
    601 F.2d 369
    , 371 (8th Cir. 1979). As discussed above, the
    physical description provided by Starr and CS-5 sufficiently described the 10841
    address so that officers could locate Skarda's residence. After learning of the
    incorrect address, Johansen and Bennett visited the property and were able to confirm
    that the 10841 address was the correct address based on the descriptions given by
    Starr and CS-5. White was also able to identify the 10841 address via Google Earth
    and confirm that it matched the description previously provided. Thus, the first prong
    of the test is met. Skarda next argues that Starr's description is insufficient because
    it would fit 99.99% of all rural farmsteads in North Dakota and thus fails the second
    prong of the test. This argument disregards Starr's testimony that Skarda's residence
    was under construction. Specifically, she testified that a foundation had been poured,
    new walls had been constructed, and insulation and woodwork were beginning. This
    distinguishes Skarda's residence from most other rural farmsteads in North Dakota.
    The second prong is met. Thus, the description was sufficient, and the district court
    properly determined that probable cause existed to search the property located at the
    10841 address.2
    
    
    
          2
           Although the good faith exception to the exclusionary rule would likely save
    the evidence from being suppressed, because we hold that adequate probable cause
    existed and the search warrant sufficiently described the property to be searched, we
    need not address this argument.
    
                                             -10-
          B.     Motion for a New Trial
    
          Skarda's motion for a new trial was based on the district court's decision to
    allow evidence that Skarda sought to and did intimidate witness Black as seemingly
    evidenced by Black's early exit from the casino. At trial, Black testified that a week
    before trial Skarda approached him at a casino, cursed at him, and made threatening
    statements. The district court held that Skarda's encounter with Black at the casino
    was "indicative of some consciousness of guilt." The district court then conducted
    an analysis under Rule 403 of the Federal Rules of Evidence and held that the
    probative value of the evidence was not outweighed by unfair prejudice. Skarda
    argues that this was in error.
    
            We review the district court's admission of evidence of witness intimidation for
    an abuse of discretion. United States v. Zierke, 
    618 F.3d 755
    , 759 (8th Cir. 2010).
    It is well established in the Eighth Circuit that threats against witnesses are "generally
    admissible against a criminal defendant to show consciousness of guilt of the crime
    charged." Id. (quoting United States v. DeAngelo, 
    13 F.3d 1228
    , 1232 (8th Cir.
    1994)). Moreover, the evidence "is considered 'direct evidence of the crime charged'
    and is not subject to a Rule 404(b) analysis." United States v. Castleman, 
    795 F.3d 904
    , 915 (8th Cir. 2015) (quoting Zierke, 618 F.3d at 759), cert. denied, 
    136 S. Ct. 912
     (2016).
    
           Skarda relied on United States v. Weir, 
    575 F.2d 668
     (8th Cir. 1978), where the
    district court erred by allowing evidence that the defendant attempted to kill an
    informant and threatened to kill a witness and FBI agent. Id. at 669. The testimony
    was admitted at trial to explain how the witness identified the defendant. Id. at 670.
    This court reversed, holding that identification testimony "could have been offered
    into evidence, by appropriate questions, without going into the objectionable 'other
    crimes' [or attempted murder] evidence." Id. at 671. The court reversed the
    conviction, held that the evidence "was substantially outweighed by the danger of
    
                                              -11-
    unfair prejudice," and noted "that it should have been excluded under Fed. R. Evid.
    403." Id. at 670. Weir, however, is easily distinguished. In Weir the district court
    admitted the disputed testimony as evidence of "other crimes" to show the identity of
    the defendant under Rule 404(b). Here, the testimony was admitted as evidence of
    Skarda's consciousness of his own guilt.
    
           Moreover, since Weir, this court has consistently held that evidence of threats
    against witnesses are generally admissible, even if prejudicial. See Castleman, 795
    F.3d at 915; Zierke, 618 F.3d at 759; DeAngelo, 13 F.3d at 1232. Rule 403 of the
    Federal Rules of Evidence only excludes evidence that is "unfair[ly] prejudic[ial]."
    "[E]vidence is not unfairly prejudicial merely because it tends to prove a defendant's
    guilt." Zierke, 618 F.3d at 759 (quoting United States v. Boesen, 
    541 F.3d 838
    , 849
    (8th Cir. 2008)). Contrary to Skarda's argument, the government did not argue or
    imply that the jury should convict Skarda because of his bad character. Rather,
    Black's testimony was used to show Skarda was guilty of the charged crime.
    Additionally, the testimony was not excessively emotional or inflammatory. Thus,
    the district court did not abuse its discretion by admitting the testimony.
    
    III.   CONCLUSION
    
           The judgment of the district court is affirmed.
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