United States Court of Appeals
For the First Circuit
No. 06-2268
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN BARNES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
Tashima,* Senior Circuit Judge.
Jeffrey M. Brandt, with whom Robinson & Brandt, P.S.C. was on
brief, for appellant.
Mary E. Rogers, Assistant United States Attorney, with whom
Robert Clark Corrente,United States Attorney, and Donald C.
Lockhart, Assistant United States Attorney, were on brief, for
appellee.
June 27, 2007
*
Of the Ninth Circuit, sitting by designation.
TASHIMA, Senior Circuit Judge, John Barnes challenges
his conviction and the sentence imposed following a jury trial on
two drug counts. Barnes contends that the district court erred in
concluding that the affidavit submitted in support of a search
warrant demonstrated probable cause. He also argues that the
evidence is insufficient to sustain his conviction. His final
contention is that the district court erred by relying on a prior
conviction not proven to the jury beyond a reasonable doubt in
imposing his sentence. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), and we affirm.
I. BACKGROUND
In January 2005, Providence, Rhode Island, police officer
Nicholas Ludovici began surveillance of a residence at 91 Whatcheer
Avenue (the “Whatcheer residence”) in Providence, where he saw
Barnes leave the home and enter a car parked in the driveway. In
April 2005, Detective Albert Faella of the Johnston, Rhode Island,
Police Department received information concerning Barnes from a
confidential informant (“CI”) who had proven reliable in the past.
The CI told Faella that Barnes was selling crack cocaine in
Johnston, described Barnes’ car, that Barnes lived at the Whatcheer
residence, and that the CI had been in the residence many times.
Faella then began conducting surveillance of the Whatcheer
residence with Alan Ross, another Johnston police officer.
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Ross saw Barnes in the yard of the residence on two
occasions in May 2005, and Faella saw him outside the residence on
two different occasions in April and May.
On May 5, 2005, the CI told Faella that Barnes was going
to 995 Atwood Avenue in Johnston to deliver crack cocaine to a
white female at that address, and that Barnes would be driving a
white Cadillac Escalade. Faella contacted Ross, who went to the
address given by the CI and observed the transaction. After Barnes
left, Ross spoke with the woman, who admitted that she had
purchased $100 worth of crack cocaine from Barnes. She gave the
substance to Ross, and it later tested positive for cocaine.
On May 13, 2005, the CI again contacted Faella to tell
him that Barnes was going to make another delivery to 995 Atwood.
Faella and Ross went to the Whatcheer residence, where they
observed the Cadillac leave the house and followed it to 995
Atwood. After the sale, Faella, Ross, and Johnston police officer
Christopher Correia stopped Barnes and arrested him. A white
substance, later determined to be cocaine base, was found in the
Cadillac when it was searched.
Faella prepared an affidavit in support of an application
for a search warrant for the Whatcheer residence. Faella included
in the affidavit the preceding facts, as well as a statement that,
on May 12, 2005, the CI told Faella that the CI observed a large
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quantity of crack cocaine in a coffee can inside the Whatcheer
residence.
The search warrant was executed on May 13, 2005. During
the search of the residence, the officers found large quantities,
consistent with distribution, of crack and powder cocaine.
Officers also found a photo of Barnes, two Macy’s invoices
addressed to John Barnes at the Whatcheer residence, a cable
television bill similarly addressed to Barnes, a credit card
receipt in Barnes’ name, and a Sears sales receipt also with
Barnes’ name.
Barnes was indicted on one count of possession with
intent to distribute 50 grams or more of cocaine base and one count
of possession with intent to distribute an unspecified amount of
cocaine. Prior to trial, Barnes requested a hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978). Barnes challenged the
truthfulness of the sentence in the search warrant affidavit in
which Faella stated that the CI told him that the CI observed a
large quantity of crack cocaine in a coffee can at the Whatcheer
residence. The district court denied Barnes’ request for a Franks
hearing, concluding that even if the contested sentence were
excluded from the affidavit, the remainder of the affidavit still
sufficiently demonstrated probable cause that evidence of drug
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trafficking would be found at the Whatcheer residence.1 After an
initial jury trial resulted in a mistrial, a second jury trial
returned guilty verdicts on both counts. The district court then
sentenced Barnes to the statutory minimum term of 240 months’
imprisonment.
A. Franks’ Hearing
Barnes contends that the search warrant for the Whatcheer
residence was not supported by probable cause and that the district
court erred in its denial of an evidentiary hearing to challenge
the affidavit supporting the warrant.
A defendant is entitled to an evidentiary hearing under
Franks where the defendant “makes a substantial preliminary
showing” that both (1) “a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit” and (2) “the
allegedly false statement is necessary to the finding of probable
cause.” Franks, 438 U.S. at 155-56. An affidavit demonstrates
probable cause to search a locale "where information in the
affidavit reveals 'a fair probability that contraband or evidence
1
The district court did not rule on the first prong of the
Franks test: whether Barnes made “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.” Franks, 438 U.S. at 155-56. Instead, the
district court based its denial of an evidentiary hearing only on
the second prong of the Franks test, which requires that “the
allegedly false statement is necessary to the finding of probable
cause” in order for a hearing to be granted. Id.
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of a crime will be found in a particular place.'" United States v.
Syphers, 426 F.3d 461, 464 (1st Cir. 2005) (quoting United States
v. Baldyga, 233 F.3d 674, 683 (1st Cir. 2000)), cert. denied, 126
S. Ct. 2312 (2006). Thus, we review the search warrant affidavit,
without the contested sentence, to determine whether it
demonstrated a fair probability of contraband being found at the
Whatcheer residence.
We review the district court’s denial of a Franks hearing
for clear error. United States v. Materas, 483 F.3d 27, 31 (1st
Cir. 2007). The “district court’s ruling is clearly erroneous only
if ‘the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.’”
United States v. Castillo, 287 F.3d 21, 25 (1st Cir. 2002) (quoting
Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)). Thus, in
order to prevail, Barnes must make “a substantial preliminary
showing” that, but for the challenged paragraph of Detective
Faella’s affidavit, the remaining portion would not demonstrate
probable cause, Franks, 438 U.S. at 155-56, and that the district
court’s denial of his motion was clearly erroneous.
Barnes argues, first, that the CI was unreliable because
the CI predicted that on May 5, 2005, Barnes would drive his
Escalade to 995 Atwood to sell crack cocaine to a white female,
whereas the substance subsequently recovered by officers tested
positive for powder cocaine, not crack cocaine. Barnes argues that
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because the substance tested positive for powder cocaine, rather
than crack cocaine, this renders the CI unreliable. However, there
is ample additional evidence to support the credibility of the CI,
whom the affidavit indicated was “reliable” and had supplied
information that led to “numerous” arrests in the past. Indeed,
every other aspect of the monitored drug deal occurred as the CI
predicted; therefore, Barnes’ argument that the CI incorrectly
predicted the type of cocaine being sold by Barnes is insufficient
to carry the day.
Second, Barnes makes a nexus claim: that there was no
probable cause that evidence of Barnes’ drug dealing would be found
at the Whatcheer residence. Barnes notes that officers only
monitored drug sales from his Cadillac Escalade, not the Whatcheer
residence, and that Barnes’ car is registered at a different
address from the Whatcheer residence. Barnes further argues that
police only saw him “leave” the Whatcheer residence, rather than
actively occupy the home. This court has repeatedly found,
however, that when a defendant sells drugs outside his home, it is
reasonable to conclude that there is evidence of his drug dealing
activity in the home, particularly when the defendant is observed
leaving the home immediately prior to selling drugs. See, e.g.,
United States v. Dessesaure, 429 F.3d 359, 368-69 (1st Cir. 2005)
(noting that when the defendant sold drugs to a person from his
car, the defendant “had just come from his apartment, making it
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likely that the drugs he sold . . . came from the apartment”);
United States v. Feliz, 182 F.3d 82, 86-88 (1st Cir. 1999) (holding
that where police only observed a defendant selling drugs out of
his car, there is still probable cause to search his home, because
his home was “a likely place to seek to find incriminating items”);
accord United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.
1986) (noting that "in the case of drug dealers, evidence is likely
to be found where the dealers live").
Thus, to determine the sufficiency of the affidavit,
excluding the contested sentence, we look to “whether the ‘totality
of the circumstances’ stated in the affidavit demonstrates probable
cause to search either the premises or the person.” United States
v. Khounsavanh, 113 F.3d 279, 283 (1st Cir. 1997) (quoting Illinois
v. Gates, 462 U.S. 213, 238 (1983)). Here, given both that the CI
stated that Barnes lived at the Whatcheer residence and that the
police observed Barnes exit the Whatcheer residence, drive away,
and sell drugs on the day of his arrest and the search, the
totality of the circumstances strongly suggested that there was
evidence of drug dealing at the Whatcheer residence.
Finally, Barnes argues that Faella’s affidavit, without
the contested sentence, makes a claim that is impossible,
undermining a finding of probable cause. Barnes notes that on the
day of his arrest, the CI told Faella that Barnes was “on his way”
to 995 Atwood in Johnston, from the Whatcheer residence in
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Providence, to sell drugs. Barnes argues that if he were “on his
way” to Johnston, it is impossible that Faella himself responded
from Johnston to the Whatcheer residence, a seven-minute drive from
Johnston, in time to observe Barnes depart, as Faella affirms in
the affidavit. However, “the law tells us that we are to read
descriptions in warrants (and in their supporting documents), not
‘hypertechnically,’ but in a ‘commonsense’ fashion.” United States
v. Gendron, 18 F.3d 955, 966 (1st Cir. 1994). Here, Barnes’
reading of the search warrant affidavit amounts to a hypertechnical
parsing of the phrase “on his way,” where a more commonsense
reading of the phrase is that Barnes was about to leave, although
not yet in transit.
Thus, the supporting affidavit, even without the
contested sentence, demonstrated that there was a fair probability
that evidence of drug dealing would be found at the Whatcheer
residence, because Barnes had been seen exiting that residence en
route to deliver drugs and because a reliable CI stated that Barnes
sold drugs and lived at the Whatcheer residence. The single
contested sentence does not undermine this conclusion. Therefore,
the district court properly denied Barnes’ motion for a Franks
hearing.
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B. Sufficiency of the Evidence
Barnes also argues that there is insufficient evidence to
support the verdict. Ordinarily, a sufficiency of the evidence
challenge requires us to review
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 beyond a
reasonable doubt. All reasonable evidentiary
inferences are to be drawn in harmony with the
[jury's] verdict, and all issues of
credibility are to be resolved in the light
most favorable to the government.
United States v. Rodriguez-Ortiz, 455 F.3d 18, 22 (1st Cir. 2006)
(alteration in original) (internal citations and quotation marks
omitted), cert. denied, 127 S. Ct. 1010 (2007). Barnes, however,
failed to move for judgment of acquittal at the close of the
government’s case, after the defense case, or following the
verdict, pursuant to Federal Rule of Criminal Procedure 29. As
such, our review of this un-preserved sufficiency claim is subject
to a more limited review – for “clear and gross injustice.” United
States v. Maldonado-Garcia, 446 F.3d 227, 230-31 (1st Cir. 2006).
Because Barnes’ un-preserved sufficiency challenge fails to meet
even the more lenient standard for a preserved challenge, it
necessarily also fails to meet the “clear and gross injustice”
standard. See United States v. Gobbi, 471 F.3d 302, 308-309 (1st
Cir. 2006).
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The core of Barnes’ argument is that there was
insufficient evidence to prove that he actually or constructively
possessed the drugs found at the Whatcheer residence. Extensive
evidence, however, links Barnes to the Whatcheer residence. First,
Barnes was twice observed by police at the Whatcheer residence,
once leaving the side door in January 2005, and again on April 27,
2005. Second, Barnes was observed exiting the Whatcheer residence
on May 13, 2005 – the day of the search – to enter his car, in
which officers subsequently discovered crack cocaine. Third,
Barnes himself told Faella upon his arrest that he was coming from
his house at 91 Whatcheer. Fourth, when officers conducted the
search of the Whatcheer residence later that day, no one else was
present in the single-family home, and documents found in the
residence tied Barnes to the home, including a cable television
bill addressed to Barnes at the Whatcheer residence.2 Finally,
subsequent investigation confirmed that the cable service at the
Whatcheer residence had been in Barnes’ name for the past four
years.
Taken together, all of this evidence easily gives rise to
the reasonable inference that Barnes resided at the Whatcheer
residence, and possessed the drugs found there. In response,
Barnes mounts a credibility attack and suggests further
2
Police also found: a photo of Barnes, two Macy's invoices
addressed to John Barnes at 91 Whatcheer, a credit card receipt in
Barnes' name, and a Sears sales receipt with Barnes' name.
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investigative steps officers might have taken to prove that Barnes
resided at the Whatcheer residence. When evaluating a sufficiency
claim, however, “we may neither evaluate the credibility of the
witnesses nor weigh the relative merit of theories of innocence
postulated by the defendant.” Maldonado-Garcia, 446 F.3d at 231.
Thus, given Barnes’ own admission that he lived at the Whatcheer
residence, the multiple observations by police of Barnes at that
address, and the extensive documentary evidence found in the
residence linking Barnes to the residence, we conclude that any
rational trier of fact could have found beyond a reasonable doubt
that Barnes resided at the Whatcheer residence.
C. Sentencing Challenge
Barnes raises a constitutional challenge to the use of a
prior conviction not proven to the jury in determining his
sentence, relying on three recent Supreme Court decisions, Shepard
v. United States, 544 U.S. 13 (2005); United States v. Booker, 543
U.S. 220 (2005); and Blakely v. Washington, 542 U.S. 296 (2004).
This court, however, continues to interpret Almendarez-Torres v.
United States, 523 U.S. 224 (1998), as permitting a criminal
history exception. See United States v. Jimenez-Beltre, 440 F.3d
514, 520 (1st Cir. 2006)(en banc). This argument is, therefore,
unavailing.
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III. Conclusion
For the foregoing reasons, the judgment of conviction and
the sentence are
AFFIRMED.
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