NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 11, 2009
Decided February 11, 2009
Before
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐1343
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Central District of Illinois.
v. No. 1:06‐CR‐10029‐001
LARRY J. CAFFIE, Joe Billy McDade,
Defendant‐Appellant. Judge.
O R D E R
Larry Caffie was convicted after a bench trial of three counts of distribution of
cocaine base, see 21 U.S.C. § 841(a)(1), (b)(1)(C), and one count of possession with intent to
distribute cocaine base, see 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). The district court sentenced
Caffie to life imprisonment on the possession‐with‐intent‐to‐deliver count, and 168 months’
imprisonment on the distribution counts, to be served concurrently. Caffie timely appeals
his convictions, but his appointed counsel moves to withdraw because she cannot discern
any nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). Caffie has
declined our invitation to respond to counsel’s submission, see CIR. R. 51(b), so we limit our
review to the potential issues identified in counsel’s facially adequate brief. See United States
v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 08‐1343 Page 2
In March 2006, Caffie sold crack cocaine to a paid informant three separate times.
On each occasion, the informant called Caffie to arrange a meeting, met Caffie in a maroon
Buick driven by Caffie, climbed into the car to carry out the transaction, and then
afterwards delivered the purchased drugs to a nearby police officer who had observed the
sale. Police applied for a search warrant for Caffie’s home, supported by documentation
proving Caffie lived at that address and that the maroon Buick was registered to that
address, as well as Detective Michael Gray’s affidavit describing the three controlled drug
buys and the police monitoring of the sales. Gray’s affidavit also stated that, based on his
training and experience, he knew that drugs “typically are hidden throughout so‐called
‘drug houses.’” Caffie was arrested, and police later recovered drugs and other
paraphernalia in a search of Caffie’s home.
Counsel first considers whether Caffie might argue that the district court erred in
denying his motion to suppress without an evidentiary hearing. Before trial, he moved to
suppress the drugs recovered from his home on the grounds that Gray’s affidavit was
insufficient—namely because it suggested a connection between his residence and drug
activity that was factually unsupported, and it did not disclose the informant’s five felony
convictions. Under Franks v. Delaware, a defendant is entitled to an evidentiary hearing if
he can make a substantial preliminary showing that the affidavit supporting the warrant
application was intentionally or recklessly false, and the false statement or omission “is
necessary to the finding of probable cause.” 438 U.S. 154, 155‐56 (1978); United States v.
Hoffman, 519 F.3d 672, 675 (7th Cir. 2008). We review the denial of a Franks hearing for clear
error. Hoffman, 519 F.3d at 675.
We agree with counsel that any attempt at challenging the district court’s denial of a
Franks hearing would be frivolous. Despite the attacks Caffie makes to the affidavit, he
presents nothing that would provide insight into Gray’s state of mind to show that his
statements were made with deliberate or reckless disregard for the truth. See Franks, 438
U.S. at 155‐56; United States v. Souffront, 338 F.3d 809, 822 (7th Cir. 2003). Nor did the
finding of probable cause depend on the challenged statement in Gray’s affidavit or the
omission of the informant’s criminal record. Police surveillance detailed elsewhere in the
affidavit showed that a person matching Caffie’s description left Caffie’s residence in a car
registered to the address of that residence minutes before making the controlled drug buys.
Furthermore, participation in drug trafficking activities may provide probable cause to
search a participant’s house because “‘evidence is likely to be found where [drug] dealers
live.’” Hoffman, 519 F.3d at 676 (quoting United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir.
1991)). And as for the affidavit’s lack of detail about the informant’s criminal record, we
note that his credibility is not a critical issue, because he performed the controlled drug
buys under the eye of police surveillance.
No. 08‐1343 Page 3
Even if the search warrant were not supported by probable cause, we would still
agree that the evidence need not be suppressed because the officers acted in good faith
when executing the warrant. See United States v. Leon, 468 U.S. 897, 920 (1984); United States
v. Prideaux‐Wentz, 543 F.3d 954, 959 (7th Cir. 2008). An officer’s decision to obtain a warrant
is prima facie evidence of acting in good faith. A defendant may rebut this evidence if the
issuing judge “wholly abandoned his judicial role” or if the supporting affidavit was “so
lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable,” Prideaux‐Wentz, 543 F.3d at 959 (quoting Leon, 468 U.S. at 914, 923), but
neither is the case here. There is no suggestion that the judge abandoned his judicial role.
And the affidavit supporting the warrant was facially sufficient—the affidavit specified the
place to be searched and things to be seized, detailed the controlled drug buys, confirmed
that the address to be searched was Caffie’s residence, and expressed Detective Gray’s
opinion that based on his training and experience drugs were sometimes stored in the
dealer’s home.
Counsel next considers whether Caffie could assert a due process violation based on
the destruction of the physical drug evidence. The government notified the court before
trial that the state’s attorney’s office had authorized the destruction of the drug evidence
because it did not have charges pending against Caffie and was unaware of any outstanding
federal charges against him. In order to assert a due process violation based on failure to
preserve evidence, Caffie must show that the government acted in bad faith. See Hubanks v.
Frank, 392 F.3d 926, 931 (7th Cir. 2004). Caffie has made no attempt to make this showing.
And even if the evidence had been destroyed negligently, mere negligence is insufficient to
show bad faith. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
Counsel next considers whether Caffie could argue that the evidence was
insufficient to prove that the substance he was charged with distributing was crack, as
opposed to another form of cocaine. Because the government sought to increase Caffie’s
maximum sentence under 21 U.S.C. § 841(b)(1) based on the drug type, the government
had to prove beyond a reasonable doubt that the drug in question was crack cocaine. See
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); United States v. Thompson, 523 F.3d 806, 813
(7th Cir.), cert. denied, 129 S. Ct. 770 (2008). Here the government proved that the substance
was crack cocaine by offering testimony from experts familiar with the drug, such as
veteran officers and forensic scientists. See United States v. Romero, 469 F.3d 1139, 1153 (7th
Cir. 2006). Detective Brice Stanfield testified that in a field test the large, off‐white, rock‐like
substance tested positive for cocaine, and he believed it was crack. Denise Hanley, a
forensic scientist specializing in drug chemistry, testified that because the substance tested
positive for cocaine base, and appeared as off‐white chunks, she concluded it was crack.
No. 08‐1343 Page 4
Finally counsel considers whether Caffie could challenge the reasonableness of his
sentence. But because Caffie’s conviction on count four was his third felony drug
conviction, 21 U.S.C. § 841(b)(1)(A) mandates life imprisonment. See, e.g., United States v.
Seymour, 519 F.3d 700, 709 n.1 (7th Cir.), cert. denied, 129 S. Ct. 527 (2008).
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.