United States Court of Appeals
For the First Circuit
No. 07-1190
UNITED STATES,
Appellee,
v.
BRUCE J. BELTON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Selya, Senior Circuit Judges.
Paul J. Garrity for appellant.
Joseph N. Laplante, First Assistant United States Attorney,
with whom Thomas P. Colantuono, United States Attorney, was on
brief for appellee.
March 21, 2008
CAMPBELL, Senior Circuit Judge. Appellant Bruce Belton
appeals from his convictions for drug trafficking, drug conspiracy,
and multiple weapons charges following a jury trial in the United
State District Court for the District of New Hampshire. Belton
challenges the court's denial of his motion to suppress evidence of
drugs, weapons and cash found in his Franklin, New Hampshire
residence on the ground that the affidavit submitted in support of
the request for the search warrant contained material omissions.
Belton also contends that the court violated the Speedy Trial Act.
We affirm the convictions.
In regard to the district court's denial of Belton's
motion to suppress, we have carefully considered the record and
appellant's arguments in light of the district court's detailed
Order published as United States v. Belton, 414 F. Supp. 2d 101
(D.N.H. 2006). We find the court's analysis in its order to be
convincing. Belton presented below, and now repeats, the arguments
that the warrant application was fatally flawed because it
intentionally or recklessly left out critical facts that were
needed for a proper understanding of the facts set out in the
application. Had these facts been included, Belton says, the
affidavit would have then been insufficient to demonstrate probable
cause for the issuance of a search warrant. See Franks v.
Delaware, 438 U.S. 154, 155-56 (1978); United States v. Higgins,
995 F.2d 1, 4 (1st Cir. 1993) ("When a defendant offers proof of an
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omission, the 'issue is whether, even had the omitted statements
been included in the affidavit, there was still probable cause to
issue the warrant.'" (quoting United States v. Rumney, 867 F.2d
714, 720-21 (1st Cir. 1989)).
The district court rejected this argument. After
examining each of the alleged omissions, and with the benefit of an
evidentiary hearing, the court determined that to the extent the
alleged omissions could be characterized as omissions, they were
not material omissions within Franks. Belton, 414 F. Supp. 2d at
110. The court concluded that, even after taking the asserted
omissions into account, the warrant application was not so lacking
in indicia of probable cause as to preclude the government's
reliance on the good-faith exception set out in United States v.
Leon, 468 U.S. 897 (1984). Belton, 414 F. Supp. 2d at 113.
On appeal, Belton repeats much the same arguments
relative to the omission of certain items as he made below. In
making those arguments now, he is burdened with the adverse
findings of the district court, which, at this later stage, carry
with them significant, although not conclusive, weight. We apply
a mixed standard of review to the district court's denial of a
motion to suppress, reviewing findings of fact for clear error and
conclusions of law, including whether a particular set of facts
constitutes probable cause, de novo. United States v. Dickerson,
514 F.3d 60, 65-66 (1st Cir. 2008) (citing United States v.
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Woodbury, 511 F.3d 93, 95 (1st Cir. 2007)). To prevail, Belton
must show that no reasonable view of the evidence supports the
denial of the motion to suppress. United States v. Materas, 483
F.3d 27, 32 (1st Cir. 2007). This he has not done.
Given the district court's careful assessment of Belton's
specific arguments in its well-considered opinion, and our
substantial agreement with the court's view of these matters, we
see no need to undertake herein our own separate exegesis. Suffice
it to say that we have carefully considered appellant's critiques
of the omissions from the affidavit and are satisfied with the
district court's response to, and disposition of, each of them. In
the end, the district court found that the omitted facts were
insufficient, had they been included, to cause the affidavit to
fall short of demonstrating probable cause. Belton, 414 F. Supp.
2d at 110. We believe that its assessment of Belton's contentions
was correct and amply supported. Accordingly, following
substantially the same path as did the district court in its Order,
we affirm its denial of the suppression motion.
Belton also argues that the district court violated the
Speedy Trial Act in granting three continuances at the request of
Belton himself. He has waived that argument by failing to seek a
dismissal pursuant to the Speedy Trial Act in the district court.
See United States v. Rodriguez-Duran, 507 F.3d 749, 768 (1st Cir.
2007) ("Although the sanction for a Speedy Trial Act violation is
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dismissal of the indictment, the right to dismissal is waived if a
defendant fails to move for dismissal prior to trial, and even
plain error review is unavailable.") (citations omitted). We need
go no further.
Affirmed.
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