United States v. Williams

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH August 13, 2009
Elisabeth A. Shumaker
U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court

T E N T H C IR C U IT

UNITED STATES OF AM ERICA,

Plaintiff–Appellee ,
v. Nos. 08-5116 and 08-5117
DEM ARCO DEON W ILLIAM S ,

Defendant–Appellant .

A PPE A L FR O M T H E U N IT E D ST A T E S D IST R IC T C O U R T
FO R T H E N O R T H E R N D IST R IC T O F O K L A H O M A
(D .C . N O S. 4:04-C R -00167-H D C -1 A N D 4:08-C R -00021-C V E -1 )

Stephen L. Sewell, Assistant U nited States Attorney, Tulsa, Oklahom a (David E.
O’M eilia, United States Attorney for the Northern District of Oklahom a, and
M atthew P. C yran, A ssistant United States Attorney, with him on the briefs) for
Plaintiff–Appellee.

Fred Randolph Lynn, Tulsa, Oklahom a, for Defendant–Appellant.

Before H A R T Z , H O L L O W A Y , and M cC O N N EL L , Circuit Judges.

H O L L O W A Y , Circuit Judge.

On a previous appeal in this case, we found a violation of the Speedy Trial Act

and rem anded defendant–appellant Demarco Deon W illiams’s prosecution with
instructions to determine whether to dismiss his indictment with or without

prejudice. United States v. Williams, 511 F.3d 1044 (10th Cir. 2007); see also 18

U.S.C. § 3162(a)(2) (requiring dismissal of an indictment on motion of the defendant

if the defendant is not brought to trial within a certain time period). On remand, the

district judge dismissed the indictment without prejudice. United States v. Williams,

532 F. Supp. 2d 1323 (N.D. Okla. 2008). The Government soon sought another

prosecution, and a jury found M r. W illiam s guilty of two counts of possession of

cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and one

count of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). M r. W illiams received concurrent life sentences for the drug

convictions and 120 months in prison for the possession of the firearm. He again

appeals.

In appeal No. 08-5116, M r. W illiams argues that the district judge abused his

discretion by dismissing the indictment without prejudice and erred by failing to hold

a hearing before that dismissal. Further, in appeal No. 08-5117, M r. W illiams raises

several additional issues. M r. W illiams argues that the district judge erred by not

ordering the in camera production of an informant for the purpose of determining

whether M r. W illiams was entitled to an evidentiary hearing where he could seek the

suppression of evidence by challenging the veracity of a warrant affidavit affiant.

He also argues that the district judge erroneously admitted an involuntary

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confession; that the Internal Affairs files of a testifying officer should have been

produced under Brady v. M aryland, 373 U.S. 83 (1963), or at least reviewed in

camera by the district judge for the purpose of determining whether they contained

Brady material; that his Sixth Amendment right to cross-examine adverse witnesses

was violated; and that his concurrent life sentences violate the Eighth Amendment.

W e have jurisdiction under 28 U.S.C . § 1291 and 18 U.S.C. § 3742(a)(1). We

A FFIR M in both appeals, rejecting M r. W illiams’s claims of error.

I. B A C K G R O U N D

Following the discovery of cocaine at his residence and in his car, and a

firearm at his residence, M r. W illiams was indicted on two counts of possession with

the intent to distribute 50 grams or more of cocaine base, one count of possession of

a firearm in furtherance of a drug trafficking crime, and one count of being a felon

in possession of a firearm. R. (08-5116), Vol. I, Doc. 1, at 1–4 (Original Indictment

Dated October 7, 2004). In addition, the Government filed an information detailing

prior felony drug offenses by M r. W illiams, including felonies from 1993 and 1994.

R. (08-5116), Vol. I, Doc. 45, at 1 (21 U.S.C. § 851 Enhancement Information).

O n September 9, 2005, M r. W illiams filed a motion to dismiss the original

indictment on Speedy Trial Act grounds. R. (08-5116), Vol. I, Doc. 55 (M otion to

Dismiss on Speedy Trial Grounds). The district judge denied M r. W illiams’s motion,

and on appeal, we held that the denial was error. Williams, 511 F.3d at 1047, 1059.

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W e found a violation of the Speedy Trial Act, and remanded the case with

instructions to dismiss the indictment with or without prejudice after considering the

relevant factors under 18 U.S.C. § 3162(a)(2). Id. at 1059; see 18 U.S.C.

§ 3162(a)(2) (requiring dismissal of an indictment on the motion of the defendant if

the defendant is not brought to trial within a certain time period).

On remand, M r. W illiams requested a hearing on the issue of whether his

indictment should be dismissed with or without prejudice. R. (08-5116), Vol. I, Doc.

147, at 1 (M otion for H earing and Brief in Support of Dismissal with Prejudice).

W ithout holding a hearing, the district judge concluded that the relevant factors

supported dismissing the indictment without prejudice. Williams, 532 F. Supp. 2d

at 1334.

Shortly thereafter, the Government obtained another indictment of M r.

W illiams for the same offenses. R. (08-5117), Vol. I, Doc. 2, at 1–4 (Second

Indictment D ated February 6, 2008). M r. W illiams then made several pre-trial

m otions relevant to his appeal in No. 08-5117. M r. W illiams requested that the

district judge hold an in camera examination of the informant mentioned in the

affidavit for the search warrant for his house to determine if he was entitled to a

Franks v. Delaware hearing.1 R. (08-5117), Vol. I, Doc. 12, at 1 (M otion for In

1
See Franks v. Delaware, 438 U.S. 154, 155–56 (1978) (entitling a defendant in
certain circumstances to a hearing at which he or she can challenge the veracity of a search
warrant affidavit’s affiant).

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Camera Ex Parte Hearing). Officer Henderson’s warrant affidavit stated that an

inform ant had told him that a black male had been selling cocaine from M r.

W illiams’s residence. R. (08-5116), Vol. I, Doc. 82-2, at 2 (Affidavit for Search

W arrant).

In support of his request for an in camera examination, M r. W illiams

submitted an affidavit in which he stated that he had “never, ever, ever sold cocaine

base or any other illegal substance from the residence in question.” R. (08-5117),

Vol. I, Doc. 12, at 4 (M otion for In Camera Ex Parte Hearing); R. (08-5116), Vol.

I, Doc. 82-2, at 5 (Affidavit of D em arco Deon W illiams). He also relied on two

instances of previous conduct by Officer Henderson. R. (08-5117), Vol. I, Doc. 12,

at 5 (M otion for In Camera Ex Parte Hearing).

First, Officer Henderson had been disciplined for violating Tulsa Police

Department regulations forbidding officers from effecting personal arrests in their

ow n quarrels. R. (08-5116), Vol. I, Doc. 82-2, at 14 (Personnel Order R egarding

Officer Henderson). In addition, Officer Henderson was investigated for offering

false information in a probable cause affidavit, in an offense report, and during an

Internal Affairs interview. R. (08-5116), V ol. I, D oc. 82-2, at 19 (Internal Affairs

M emorandum). Officer Henderson had failed to include the fact that a w itness was

present with him when he went to a hotel room where drug sales were suspected of

being made. Id. at 18–19, 33–34; D. Ct. (No. 4:04-CR-00167-HDC-1), Doc. 74, at

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8–9, 23–25 (Internal Affairs M emorandum).

The district judge denied the motion for an in camera examination of the

informant. R. (08-5117), Vol. I, Doc. 27, at 6 (District Court Opinion and Order

Dated April 7, 2008).

M r. W illiams also asked the district judge to compel the production, under

Brady v. M aryland,2 of the Internal Affairs files of Officer Henderson, or to review

those files in camera to determine if they contained Brady material. R. (08-5117),

Vol. I, Doc. 17, at 2 (M otion to Compel Production of Impeachm ent M aterial). To

support this request, M r. W illiams invited the attention of the district judge to the

same two prior incidents of conduct by Officer H enderson that he urged in support

of his request for an in camera examination of the informant. Id. at 1.

The district judge held that the request for production was moot because the

Government had requested any Brady materials from the Tulsa Police Department,

but had not yet received that evidence. R. (08-5117), Vol. I, Doc. 27, at 11 (District

Court Opinion and Order Dated April 7, 2008).

The district judge held a Jackson v. D enno 3 hearing and then ruled that a

2
See Brady, 373 U.S. at 87 (holding that the suppression by the prosecution of
evidence favorable to an accused violates due process where the evidence is material either
to guilt or to punishment).
3
See Jackson v. Denno, 378 U.S. 368, 376 (1964) (“A defendant objecting to the
admission of a confession is entitled to a fair hearing in which both the underlying factual
issues and the voluntariness of his confession are actually and reliably determined.”); 18
(continued...)

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confession M r. W illiams had made after the discovery of cocaine at his residence on

July 27, 2004, was voluntary. R. (08-5117), Vol. I, Doc. 31, at 13 (D istrict Court

Opinion and Order).

A jury trial followed, and the relevant testim ony was as follows: Officer Jeff

Henderson testified that he helped execute a search of a residence, and M r. W illiams

was found inside. R. (08-5117), Vol. II, Doc. 59, at 23, 26 (Trial Transcript Dated

April 24, 2008). Officers Randy M acKenzie, Thomas Sherman, and Kevin Hill were

also present. Id. at 24–27. Officer Henderson acted as the property recovery officer

for all the evidence obtained at the residence. Id. at 24. Officer Henderson testified

that Officer Hill discovered a bag that contained a large portion of suspected

cocaine, and Officer Hickman discovered a revolver. Id. at 27–29. Officer

M acKenzie then read M r. W illiams his M iranda 4 rights in M r. W illiams’s living

room. Id. at 38.

Officer Henderson and O fficer Sherman also interviewed M r. W illiams at a

police station. Id. M r. W illiams stated that he understood his rights and wanted to

cooperate with the police. Id. at 39. M r. W illiams admitted that he sold drugs and

that the drugs and the gun found at his house were his. Id. at 40–41. He also signed

3
(...continued)
U.S.C. § 3501(a) (“Before [a confession] is received in evidence, the trial judge shall, out
of the presence of the jury, determine any issue as to voluntariness.”).
4
See Miranda v. Arizona, 384 U.S. 436 (1966).

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a witness statement that had been drafted by Officer Henderson. Id. at 41–42. M r.

W illiams had requested Officer Henderson to write the statement in M r. W illiams’s

words. Id. at 42. M r. W illiam s reviewed the statement and then signed it. Id. M r.

W illiams was permitted to return home under the agreement that he was to cooperate

with the police in future drug investigations. Id. at 44. However, M r. W illiams did

not later assist the police. Id.

O fficer Henderson further testified that on October 5, 2004, he saw M r.

W illiams in a parked car, and after Officer Henderson determ ined that a felony

warrant for M r. W illiams’s arrest was outstanding, Officer Henderson called for the

assistance of a uniformed officer. Id. at 45–46.

Officer Demetrius Thom pson then arrived at the scene. Id. at 46. Officer

Henderson discovered bags of crack cocaine in M r. W illiams’s vehicle. Id. at 47–48,

51. Officer Henderson then arrested M r. W illiams. Id. at 73. He prepared a booking

sheet for the arrest of M r. W illiams that reflected a birth date of February 27, 1975,

and a social security number. Id. at 55.

On cross-examination, M r. W illiams sought to impeach Officer Henderson by

questioning Officer Henderson about a previous Internal Affairs investigation in an

unrelated case. Id. at 61. Officer Henderson had been investigated for offering false

information in a probable cause affidavit, in an offense report, and during an Internal

Affairs interview. R. (08-5116), Vol. I, Doc. 82-2, at 19 (Internal Affairs

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M emorandum). However, the district judge forbad him from questioning O fficer

Henderson about the m atter. R. (08-5117), Vol. II, Doc. 59, at 61–62 (Jury Trial

Transcript Dated April 24, 2008).

Additional testimony was provided at trial that supplemented Officer

Henderson’s version of the events. Officer M acKenzie testified that he saw Officer

Hill locate a sack that contained a large amount of tan rock consistent with cocaine

base. Id. at 16. Officer M acKenzie also testified that he read M r. W illiams M iranda

warnings and M r. W illiams indicated that he understood his rights. Id. at 18–19.

Officer Sherman testified that M r. W illiams voluntarily spoke with Officer

Sherman and Officer Henderson when they interviewed him at the police station. Id.

at 90. Officer Sherman further testified that, at that interview, M r. W illiams

admitted possession of the firearm and also admitted that he tried to put a large

amount of cocaine into his kitchen sink. Id. at 91. M r. W illiams also indicated that

he intended to sell the cocaine. Id. at 92. Officer Sherman also testified that Officer

Henderson filled out a witness statement, read it to M r. W illiams, and then M r.

W illiams signed the statement. Id. at 92–93.

O fficer Roger Smith testified that he spoke to M r. W illiams at the police

department after the October 5, 2004, traffic stop. Id. at 75–77. M r. W illiams

admitted that the drugs and the gun found during the July 27, 2004, search belonged

to him. Id. at 80–81. O fficer Smith testified that M r. W illiams told him that the

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drugs he was caught with on O ctober 5, 2004, had been received from someone

nam ed Joker. Id. at 79–80. M r. W illiams indicated that he owed Joker $10,000

because Joker had fronted him the cocaine. Id. at 79. In addition, ATF Special

A gent Brandon M cFadden testified that he spoke with M r. W illiams on M arch 10,

2005, and M r. W illiams told him that he distributed crack cocaine. R . (08-5117),

Vol. II, Doc. 60, at 74–76 (Jury Trial Transcript Dated April 25, 2008).

Robert Yerton of the Tulsa Police D epartment testified that in his opinion

fingerprints from M r. W illiams’s booking sheet matched fingerprints from a

penitentiary packet in the name of Demarco Deon W illiams, and that packet

contained copies of previous convictions. Id. at 14, 17–18, 21. The Government

also submitted certified copies of M r. W illiams’s previous judgments and sentences.

Id. at 22.

M r. W illiams testified that he did not own any of the drugs found, but admitted

that he did own the firearm. Id. at 24–25. He testified that the confession he signed

was blank, and that the police told him that if he did not sign the confession they

would send him to prison for the rest of his life. Id. at 26–27. M r. W illiams also

denied that he was the individual listed on the copies of the previous judgments and

sentences. Id. at 33–34. He testified that the final digit of the social security

numbers contained on the judgments was incorrect and denied providing his social

security number to the person who took his information for his booking sheet. Id.

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at 33–34, 73. However, he acknowledged that the birthday listed on the judgments

was his date of birth–February 27, 1975. Id. at 44–47. Further, the social security

number he claimed as his own was identical to the num ber on the booking sheet

prepared by Officer Henderson, except for the final digit. R. (08-5117), Vol. II, Doc.

59, at 23, 55 (Trial Transcript Dated April 24, 2008); R. (08-5117), Vol. II, Doc. 60,

at 33 (Jury Trial Transcript Dated April 25, 2008). He also admitted that the

photographs contained in the penitentiary packet were of himself. R. (08-5117), Vol.

II, Doc. 60, at 70 (Jury Trial Transcript Dated April 25, 2008).

M r. W illiams was convicted on two counts of possession with the intent to

distribute 50 grams or more of cocaine, and on one count of being a felon in

possession of a firearm. R. (08-5117), Vol. II, Doc. 60, at 86 (Trial Transcript Dated

April 25, 2008). The district judge sentenced M r. W illiams to concurrent life

sentences for the drug possession offenses, and 120 months in prison for the firearm

possession offense, rejecting M r. W illiams’s argument that the life sentences violated

the Eighth Amendment. R. (08-5117), Vol. II, Doc. 61, at 5, 10 (Sentencing Hearing

Transcript Dated July 30, 2008). These appeals followed.

II. D ISC U SSIO N

A . D ism issal W ithout Prejudice of the Indictm ent A fter the Speedy T rial

A ct V iolation

M r. W illiams argues that the district judge abused his discretion by dismissing

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his original indictment without prejudice. He raises a variety of arguments, the most

salient of which we address explicitly. He further argues that he was entitled to a

hearing before the district judge dismissed his indictment. W e reject both arguments.

1. D ism issal W ithout Prejudice

A district judge’s decision to dism iss an indictment without prejudice for

violation of the Speedy Trial Act, 18 U.S.C. § 3161, is reviewed for an abuse of

discretion. United States v. Jones, 213 F.3d 1253, 1256 (10th Cir. 2000). “W hen the

district court has exercised that discretion, our function is to insure that the statute

is effectuated, recognizing that ‘w hen the statutory factors are properly considered,

and supporting factual findings are not clearly in error, the district court’s judgment

of how opposing considerations balance should not lightly be disturbed.’” Id. at 1257

(quoting United States v. Taylor, 487 U.S. 326, 337 (1988)).

Relevant factors in determining whether a dismissal should be with or without

prejudice include, but are not limited to: (1) the seriousness of the offense; (2) the

facts and circumstances of the case which led to the dismissal; and (3) the impact of

a reprosecution on the administration of the Speedy Trial Act and on the

administration of justice. 18 U.S.C. § 3162(a)(2). W e address each of these factors,

and conclude that the district judge did not abuse his discretion by dismissing M r.

W illiams’s original indictment without prejudice.

a. Seriousness of the O ffense

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 The district judge correctly concluded that M r. W illiams’s charged offenses

w ere serious. If the court determines the offenses committed by the defendant are

serious, this factor weighs in favor of dismissing w ithout prejudice. United States

v. Saltzman, 984 F.2d 1087, 1092–93 (10th Cir. 1993).

Included in the four count indictment was one count of being a felon in

possession of a firearm and two counts of possession with the intent to distribute 50

grams or more of cocaine base. Being a felon in possession of a firearm is a serious

offense. See United States v. Carnes, 309 F.3d 950, 957 (6th Cir. 2002) (holding

that possession of a firearm by a felon is a serious offense under 18 U.S.C.

§ 3162(a)(2)).

M oreover, felony drug charges are generally treated as serious offenses.

Saltzman, 984 F.2d at 1093 n.8. A nd Congress’s permitting, and sometimes

mandating, that a life sentence be imposed for possession with the intent to distribute

50 grams or more of cocaine base demonstrates the seriousness of M r. W illiams’s

particular drug offenses. See 21 U.S.C. § 841(a)(1), (b)(1)(A). Therefore, we

conclude that this factor weighs heavily in favor of dismissal without prejudice.

b. Facts and C ircum stances

W e agree with the district judge that the facts and circumstances that led to the

dismissal support dismissal without prejudice. In evaluating these facts and

circumstances, the court should focus on the culpability of the delay-producing

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conduct. Saltzman, 984 F.2d at 1093. For example, we have explained that where

the delay in bringing the case to trial is the result of intentional dilatory conduct, or

a pattern of neglect on the part of the Government, dismissal with prejudice is the

appropriate remedy. Id. at 1093–94.

The record does not show either intentional dilatory conduct or a pattern of

neglect by the Government, nor does M r. W illiam s assert that such conduct was

present. M oreover, the record demonstrates that M r. W illiams is partially

responsible for the delay. Contrary to M r. W illiams’s assertions, he did not assert

his Speedy Trial Act rights until after the Act had been violated, and the district

judge’s inquiry into his responsibility for the delay in his trial was relevant.

M r. W illiams asserts that he timely asserted his Speedy Trial Act rights in an

August 2005 letter that he sent to the district judge. In that letter, M r. W illiams

states that “Its been Almost a Calendar year since a Lawyer has filed motions on my

behalf with that alone lets you know that someone’s not doing their job in order to

help their client.” R. (08-5116), Vol. I, Doc. 48, at 1 (Letter from Demarco Deon

W illiams to the H onorable H. Dale Cook). The letter further stated that it was

“solely for the purpose to inform the Court that [M r. W illiams’s attorney] is not

competent.” Id.

By its terms, M r. W illiams’s letter is solely directed toward complaints about

his attorney. The record makes clear that M r. W illiams did not assert his Speedy

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Trial Act rights until Septem ber 9, 2005, the date he filed his motion to dismiss the

original indictment on Speedy Trial Act grounds. By that time, the A ct had already

been violated. See Williams, 511 F.3d at 1047, 1059. The district judge properly

considered that fact and other indications that M r. W illiams may have contributed

to the delay in his trial when making his decision to dismiss the case without

prejudice. See Saltzman, 984 F.2d at 1094 (holding that a defendant who waits

passively while the time runs has less claim to dismissal with prejudice than a

defendant who demands, but does not receive, prompt attention); United States v.

Abdush-Shakur, 465 F.3d 458, 463 (10th Cir. 2006) (holding that the defendant

“must also shoulder his share of the responsibility for the delay” that resulted in a

violation of the Speedy Trial Act). This factor favors dismissal without prejudice.

c. Im pact of a R eprosecution

W e are also convinced that the district judge correctly concluded that the

impact of a reprosecution on the administration of the Speedy Trial Act and on the

administration of justice supported dismissal of the indictment without prejudice.

In determining whether a dism issal with or without prejudice serves the

administration of the Speedy Trial Act and of justice, a court should consider, among

other factors, whether the delay caused by the Government was intentional and the

prejudice suffered by the defendant from the Act’s violation. See Abdush-Shakur,

465 F.3d at 463–64; Saltzman, 984 F.2d at 1094; see also Taylor, 487 U.S. at 334.

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The defendant has a burden under the Act to show prejudice other than that

occasioned by the original filing. Saltzman, 984 F.2d at 1094.

As we have observed above, there is no evidence that the Government engaged

in intentional dilatory conduct. Further, M r. W illiam s has failed to demonstrate

sufficient prejudice to require dismissal with prejudice.

M r. W illiams’s October 7, 2004, indictment alleged two counts of possession

with the intent to distribute 50 grams or more of cocaine base. Under 21 U.S.C.

§ 841(b)(1)(A), a person that possesses with the intent to distribute 50 grams or more

of cocaine base with two or more prior felony drug convictions faces a mandatory

life sentence. See 21 U.S.C. § 841(b)(1)(A). Further, under 21 U.S.C. § 851(d), the

Government is required to file an information with the district judge stating the

defendant’s prior felony drug convictions before a defendant’s sentence can be

enhanced under § 841(b)(1)(A). See id. § 851(a)(1). Section 851(d) further provides

that “[n]o person who stands convicted of an offense under [§ 841] may challenge

the validity of any prior conviction alleged under [§ 851] which occurred more than

five years before the date of the information alleging such prior conviction.” Id.

§ 851(d).

M r. W illiams asserts that he was prejudiced by his inability to challenge the

validity of two prior felony drug convictions from 1993 and 1994 that w ere to be

used to enhance his sentence under 21 U.S.C. § 841(b)(1)(A). However, the

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prejudice that a defendant must establish to seek a dismissal with prejudice for a

Speedy Trial Act violation must be caused by that violation. See Saltzman, 984 F.2d

at 1094 (“[T]he defendant has a burden under the [Speedy Trial Act] to show specific

prejudice other than that occasioned by the original filing.”). Here, even if a trial

had been held shortly after the date of the original indictment–October 2004–he

would still not have been able to challenge the validity of either his 1993 or his 1994

conviction. B oth convictions would have occurred more than five years before the

date the § 851 information would have been filed (presumably after October 2004).

Therefore, M r. W illiams’s inability to challenge his two prior convictions is

irrelevant to the district judge’s decision to dismiss his original indictment without

prejudice. In sum, on this record we cannot conclude that the district judge abused

his discretion by dismissing M r. W illiams’s original indictment without prejudice.

2. Failure to H old a Pre-D ism issal H earing

M r. W illiams further argues that he was entitled to a hearing before his

indictment was dismissed without prejudice, relying on the Ninth Circuit’s decision

in United States v. Delgado-M iranda, which mandated such a hearing. See United

States v. Delgado-M iranda, 951 F.2d 1063, 1064 (9th Cir. 1991). W e find no

reversible error.

W e have not decided whether a defendant has a right to a hearing before a

district judge dismisses an indictment for a Speedy Trial Act violation, and we need

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not answer that question here. W e conclude that any error in failing to hold such a

hearing was harmless; that is, there is no indication that had a hearing been held, the

district judge would have dismissed the case with prejudice. See Fed. R. Crim. P.

52(a) (“Any error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded.”); Neder v. United States, 527 U.S. 1, 7 (1999)

(explaining that Rule 52(a) applies to all but a limited class of fundamental

constitutional errors).

As explained above, the factors the district judge was required to consider in

making his decision to dismiss w ith or without prejudice weighed heavily in favor

of dismissal without prejudice. M oreover, M r. W illiams fails to point to any facts

that the district judge w as not already aware of that he would have attempted to

establish at a hearing. Under these facts, we are convinced that the district judge’s

decision to forgo a pre-dismissal hearing, if erroneous, was harmless.

B . F ranks v. D elaw are

M r. W illiams argues that the district judge erred by not ordering the in camera

production and examination of the informant and Officer Henderson to determine if

M r. W illiam s was entitled to an evidentiary hearing under the Supreme Court’s

decision in Franks v. Delaware. W e disagree.

In Franks v. Delaware, the Supreme Court considered whether a defendant in

a criminal proceeding ever has the right under the Fourth and Fourteenth

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Amendments, after the ex parte issuance of a search warrant, to challenge the

truthfulness of factual statements made in an affidavit supporting the warrant.

Franks, 438 U.S. at 155. The Court held that “where the defendant makes 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, and if the allegedly false statement is necessary to the finding of probable

cause, the Fourth Amendment requires that a hearing be held at the defendant’s

request.” Id. at 155–56.

There must be allegations of deliberate falsehood or of reckless disregard for

the truth, and those allegations must be accompanied by an offer of proof. Id. at 171.

The deliberate falsity or reckless disregard whose impeachment is permitted is only

that of the affiant, not of any nongovernmental informant. Id.

Our precedent leads us to the conclusion that it was not error for the district

judge to refuse to order an in camera hearing here. W e rejected an argument similar

to M r. W illiams’s argument when we decided United States v. Schauble. In

Schauble, a law enforcement officer submitted an affidavit in support of a search

warrant in which the officer–affiant stated that an informant contacted him and

indicated that the defendant’s residence contained marijuana. United States v.

Schauble, 647 F.2d 113, 114 (10th Cir. 1981). The warrant was executed and illegal

drugs were discovered. Id. at 115.

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 The defendant filed a motion to suppress in which he sought to cross-examine

the informant as to the truthfulness of the factual statements made in the affidavit or

to compel the informant to appear for an in camera examination by the court to

answer questions supplied by the defendant. Id. The purpose of the questioning was

to establish that the affiant had intentionally or with reckless disregard for the truth

included false statements of the inform ant in the affidavit. Id. The district court

denied the motion to suppress. Id. The defendant then appealed, arguing that the

trial judge erred in denying his motion for a Franks hearing and the production of the

confidential informant. Id. at 117.

W e concluded that we did not need to decide whether a defendant who has

satisfied the requirements for a Franks hearing is entitled to revelation of the identity

of a confidential inform ant, let alone production of the informant at the hearing,

because the appellant there had not made the necessary substantial preliminary

showing that a false statement was knowingly or intentionally, or with reckless

disregard for the truth, included by the affiant in the warrant affidavit. Id. at 116–17.

W e are persuaded that our decision in Schauble stands for the proposition that a

defendant cannot demand the production and questioning, in camera or otherwise,

of a confidential informant whose statements are relied upon in a warrant affidavit

until the defendant has made the required substantial preliminary showing under

Franks. See United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993) (citing Schauble

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as holding that because the defendant had not made a substantial showing of the

affiant’s untruthfulness, the district court did not abuse its discretion in denying the

defendant’s request for the in camera disclosure of an informant whose tip was the

basis for the search warrant); cf. United States v. Kiser, 716 F.2d 1268, 1273 (9th

Cir. 1983) (allowing for the in camera examination of a confidential informant after

the defendant made an offer of proof that constituted a “substantial preliminary

showing” that a false statement was included in the affidavit deliberately or with

reckless disregard for the truth).

Here, M r. W illiams has not made a substantial preliminary showing that a false

statement was knowingly and intentionally, or with reckless disregard for the truth,

included by the affiant–Officer Henderson–in the warrant affidavit. Officer

Henderson’s warrant affidavit states that a confidential informant had told Officer

Henderson that a black male had been selling cocaine from what was later identified

at trial as M r. W illiams’s residence. In support of the required showing under

Franks, M r. W illiams relies upon an affidavit in which he states he has “never, ever,

ever sold cocaine base or any other illegal substance from the residence in question.”

In addition, M r. W illiams points to various incidents concerning misconduct

by Officer Henderson. Officer Henderson had been disciplined for violating Tulsa

Police Department regulations forbidding officers from effecting personal arrests in

their own quarrels. In addition, Officer Henderson was investigated for offering

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false information in a probable cause affidavit, in an offense report, and during an

Internal Affairs interview. Officer Henderson failed to include that a witness was

present with him when he went to a hotel room where drug sales were suspected of

being made.

The showing of these circumstances by M r. W illiams is insufficient to satisfy

the requirements of Franks. W hile it may follow from M r. W illiams’s affidavit that

certain statements attributed to the confidential informant in the warrant affidavit are

untrue, it does not necessarily follow that Officer Henderson lied about the

informant’s existence or statements, or knew that the informant was lying. See

Franks, 438 U.S. at 171 (holding that the deliberate falsity or reckless disregard

whose impeachm ent is permitted is only that of the affiant, not of any

nongovernmental informant). M oreover, while the real and potential misconduct by

Officer Henderson in previous cases is indeed serious, that conduct does not pertain

directly to this case. Nor is that misconduct sufficiently pronounced or ubiquitous

so as allow us to infer that a false statement was deliberately or recklessly included

by Officer Henderson in the warrant affidavit in M r. W illiams’s case.

C . V oluntariness of M r. W illiam s’s C onfession

M r. W illiams further argues that the district judge erred by finding his July 27,

2004, confession to be voluntary and admissible. He asserts that the district judge’s

finding of voluntariness rested on Officer Henderson’s credibility, which M r.

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W illiam s attacks. W e conclude that the district court did not err in finding M r.

W illiams’s confession to have been voluntary.

The voluntariness of a confession is a question of law which this court reviews

de novo. United States v. Lugo, 170 F.3d 996, 1003 (10th Cir. 1999). However, we

accept the district judge’s underlying factual findings unless they are clearly

erroneous. Id. The Government bears the burden of show ing, by a preponderance

of the evidence, that a confession is voluntary. U nited States v. Lopez, 437 F.3d

1059, 1063 (10th Cir. 2006).

W e determ ine voluntariness based on the totality of the circum stances,

examining: (1) the defendant’s age, intelligence, and education; (2) the length of the

detention and interrogation; (3) the length and nature of the questioning; (4) whether

the defendant was advised of his constitutional rights; and (5) whether the defendant

was subjected to or threatened with any physical punishment. Lugo, 170 F.3d at

1004. The court m ust examine the entire record and make an independent

determination of the ultimate issue of voluntariness. Id.; see also United States v.

M uniz, 1 F.3d 1018, 1021 (10th Cir. 1993) (“The entire record is considered on

appeal which includes evidence at the suppression hearing as well as at trial.”).

However, a confession is only involuntary when the police use coercive activity to

undermine the suspect’s ability to exercise his free w ill. Lugo, 170 F.3d at 1004.

Here, considering the totality of the circumstances, we agree with the district

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judge that M r. W illiams’s July 27, 2004, confession was voluntary. Testimony at

trial, which is substantially similar to the evidence admitted at the pre-trial hearing

on the voluntariness of M r. W illiams’s confession, supports our conclusion.

After the search at M r. W illiams’s house, Officer M acKenzie testified that he

read M iranda warnings to M r. W illiams and M r. W illiams indicated that he

understood his rights. Officer Henderson testified that M r. W illiams wanted to

cooperate with the police, and Officer Sherman similarly testified that M r. W illiams

spoke with them voluntarily. Both Officers Henderson and Sherm an testified that

M r. W illiams was apprised of the witness statement’s contents before he signed it.

W hile M r. W illiams testified that the statement was blank when he signed it

and that the police threatened him with life in prison if he did not sign it, the district

judge did not clearly err by refusing to credit this version of the events. The

consistent testimony of Officers Henderson and Sherman provided a firm foundation

for this refusal. Therefore, we conclude that M r. W illiams’s July 27, 2004,

confession was voluntarily made.

D . B rady v. M aryland V iolation

M r. W illiams asserts that his due process rights, as explained by the Supreme

Court in Brady v. M aryland, were violated when certain Internal Affairs files

pertaining to Officer Henderson were not produced. Specifically, he asserts that the

Brady violation was that “the Government . . . failed to produce . . . the entirety of

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the available record about Officer Henderson’s ethical lapses.” Appellant’s Br. (08-

5117) at 20. He also asserts that the district judge was required to hold an in camera

inspection of Officer Henderson’s Internal A ffairs files to determine if they

contained Brady material. W e disagree.

The prosecution’s suppression of evidence favorable to the accused, including

impeachment evidence, violates due process where the evidence is material either to

guilt or to punishment. United States v. Erickson, 561 F.3d 1150, 1162 (10th Cir.

2009) (citing Brady, 373 U.S. at 87). W e review de novo claims that the prosecution

violated Brady, including the determination of whether suppressed evidence w as

material. United States v. Hughes, 33 F.3d 1248, 1251 (10th Cir. 1994). To

establish a Brady violation, the defendant must prove that the prosecution suppressed

evidence, the evidence was favorable to the defense, and the evidence was material.

Erickson, 561 F.3d at 1163. Evidence is material under Brady only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different. United States v. Velarde, 485 F.3d

553, 559 (10th Cir. 2007). A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. To make the m ateriality determination,

we view the suppressed evidence’s significance in relation to the record as a whole.

Hughes, 33 F.3d at 1252.

Here, the Governm ent did not commit a Brady violation, nor did the district

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judge commit reversible error by failing to order an in camera inspection of Officer

Henderson’s Internal Affairs files. M r. W illiams has not m ade even a plausible

showing that the Internal Affairs files will produce material evidence. See, e.g.,

United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002) (holding that a defendant

seeking an in camera inspection to determine whether a particular source contains

Brady material need only make a plausible showing that the file will produce

material evidence); Riley v. Taylor, 277 F.3d 261, 301 (3d Cir. 2001) (“A defendant

seeking an in cam era inspection to determine whether files contain Brady material

must at least make a ‘plausible showing’ that the inspection will reveal material

evidence.”).

There is no indication that any of the information contained in Officer

Henderson’s Internal Affairs files relates to M r. W illiams’s case. And even if

additional documentation regarding Officer Henderson’s “ethical lapses” is included

in the absent files, thereby damaging Officer Henderson’s credibility in general,

overlapping and equally damaging testim ony w as provided by other witnesses.

At trial, Officer Henderson testified to the discovery of the cocaine at M r.

W illiams’s house on July 27, 2004, and to the discovery of the cocaine in M r.

W illiams’s car on O ctober 5, 2004. He further testified that M r. W illiams admitted

during his July 27, 2004, interview that the drugs found in his house were his and

that he sold drugs. M orever, Officer Henderson testified to the discovery of the

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firearm at M r. W illiams’s house and testified that M r. W illiams admitted to owning

the gun found at his house. In addition, trial testimony indicated that when Officer

Henderson arrested M r. W illiams on October 5, 2004, he recovered a driver’s license

reflecting a birth date of February 27, 1975, and helped prepare an arrest and

booking sheet that included a social security number and M r. W illiams’s fingerprints.

Officer M acKenzie testified to the discovery of the cocaine at M r. W illiams’s

house. Officer Smith testified that M r. W illiam s adm itted to owning the cocaine

found at his house and the cocaine found in his car. Further, Officer Sherman,

Officer Smith, and ATF Special Agent M cFadden all testified that M r. W illiams

admitted to distributing cocaine. Officer Sherman testified that he was present at

Officer Henderson’s interview of M r. W illiams, and during that interview M r.

W illiams indicated that he intended to sell the cocaine found at his residence.

Officer Smith testified that M r. W illiam s stated that he was “fronted” the cocaine

that was found in his car. ATF Special Agent Brandon M cFadden testified that M r.

W illiams admitted distributing crack cocaine.

In addition, M r. W illiams himself testified that he owned the firearm found at

his residence. M oreover, M r. W illiams confirmed that the birth date collected by

O fficer Henderson and present on the copies of the previous felony convictions the

Government sought to prove belonged to M r. W illiams was his correct birthday. He

also claimed that his social security number was the same as the social security

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number collected by Officer Henderson and present on the copies of the previous

judgments, except for the last digit. M oreover, M r. W illiams was linked to his

penitentiary packet not only by the fingerprints collected by Officer Henderson, but

also by photographs contained within that packet that M r. W illiams admitted were

of him.

W e are convinced that even if additional credibility-damaging material had

been discovered in Officer Henderson’s Internal Affairs files and presented at trial,

the result of M r. W illiams’s case would have been the same. Therefore, the

Government did not violate Brady v. M aryland, nor did the district judge err by not

inspecting the withheld materials in camera.

E. Sixth A m endm ent R ight to C onfrontation

M r. W illiams argues that his Sixth Amendment right to cross-examine was

violated when the district judge limited his cross-examination of Officer Henderson.

Specifically, the district judge forbad him from questioning Officer Henderson about

an Internal Affairs investigation into Officer Henderson’s conduct in a different case.

Officer Henderson had been investigated for offering false information in a probable

cause affidavit, in an offense report, and during an Internal Affairs interview.

W e review de novo whether cross-examination lim itations infringe a

defendant’s Sixth Amendment right to confrontation. United States v. Turner, 553

F.3d 1337, 1348 (10th Cir. 2009). First, we ask whether the district court erred. Id.

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Second, we ask whether such error was harmless beyond a reasonable doubt. Id. If

an error is harmless, we will not reverse. Id.

W hether the error is harmless depends upon a host of factors, including: (1)

the importance of the witness’s testimony in the prosecution’s case, (2) whether the

testimony was cumulative, (3) the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, (4) the extent of

cross-examination otherwise permitted, and (5) the overall strength of the

prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

As discussed in Part II.D. above, the incriminating evidence apart from Officer

Henderson’s testimony was overwhelming. That overwhelming evidence would have

nullified the exculpatory value of even a successful cross-examination of Officer

Henderson regarding his previous Internal Affairs investigation. Therefore, we

conclude that any error in restricting M r. W illiams’s cross-examination of Officer

Henderson was harmless beyond a reasonable doubt.

F. C ruel and U nusual Punishm ent

M r. W illiams asserts that the concurrent life sentences imposed for his two

cocaine possession convictions violate the Eighth Amendment because they are

disproportionate to those crimes. W e conclude otherwise.

W e review de novo whether a criminal sentence violates the Eighth

Amendment. United States v. Angelos, 433 F.3d 738, 750 (10th Cir. 2006). The

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Eighth Amendm ent contains a narrow proportionality principle that applies to

noncapital sentences. Id. Under that principle, the Eighth Amendment forbids only

extreme sentences that are grossly disproportionate to the crime. Id.

Here, M r. W illiams’s Eighth Amendment argument is foreclosed by relevant

precedent. In United States v. M cKneely, we upheld a life sentence for a first-time

felony conviction for possession with intent to distribute 50 grams or more of

cocaine base. United States v. M cKneely, 69 F.3d 1067, 1070, 1080–81 (10th Cir.

1995); see also Harmelin v. M ichigan, 501 U.S. 957, 961, 961 n.1, 996 (1991)

(upholding a life sentence for a conviction for the possession of 650 grams or more

of cocaine). Similarly, M r. W illiams has been convicted on two counts of possession

with the intent to distribute 50 grams or more of cocaine base, and has received a life

sentence for each conviction. Therefore, following binding precedent, we must

conclude that his concurrent life sentences do not violate the Eighth Amendment.

III. C O N C L U SIO N

W e conclude that the district judge did not abuse his discretion by dismissing

M r. W illiams’s original indictment without prejudice, nor did the district judge

commit reversible error by failing to hold a hearing before that dismissal. Therefore,

in appeal No. 08-5116, we A FFIR M .

W e further conclude that the district judge properly refused to exam ine the

informant in cam era, as M r. W illiams failed to make a substantial preliminary

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showing that a false statement was culpably included in the affidavit to the warrant

that authorized a search of his residence.

M oreover, we are convinced that M r. W illiams’s July 27, 2004, confession was

voluntary; that the Government did not commit a Brady violation by not producing

Officer Henderson’s Internal Affairs files and that the district judge did not commit

reversible error by refusing to examine those files in camera; that any violation of

M r. W illiams’s Sixth Amendment rights was harmless; and that M r. W illiams’s

concurrent life sentences do not violate the Eighth Amendment. Therefore, in appeal

No. 08-5117, we also A FFIR M .

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