In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1369
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W ALTER C. S MITH, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06-cr-30070-DRH—David R. Herndon, Chief Judge.
A RGUED D ECEMBER 9, 2008—D ECIDED A UGUST 13, 2009
Before F LAUM, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. Police suspected Walter C. Smith III
of selling drugs out of a pink house in Mulberry Grove,
Illinois. They set up surveillance and controlled buys,
which provided them with probable cause for the
search warrants that they obtained on January 21, 2005,
and May 17, 2006. In searching the premises, they re-
trieved large sums of money, surveillance equipment,
firearms, and large quantities of cocaine and marijuana.
2 No. 08-1369
Smith was convicted of eight cocaine-related offenses
based on this evidence, but he believes that the district
court made two errors that entitle him to a new trial.
The first alleged error is the district court’s denial of
Smith’s request for a Franks hearing, despite the fact that
the search warrant affidavits contained certain acknowl-
edged factual errors. Smith believes that these errors
reflected a reckless disregard for the truth that renders
the warrants invalid, while the government portrays
them as an oversight and a scrivener’s error. The district
court sided with the government and denied Smith’s
request. Smith contends that the district court’s second
error was its failure to investigate or address adequately
the effect of jury misconduct. Specifically, Juror No. 1,
who was excused because he felt that he could no longer
be impartial, told another juror that certain testimony
was “hitting close to home.” Smith argued that this
potentially prejudiced the jury against him, but the
district court saw no possible prejudice.
We affirm.
I
On January 21, 2005, Inspector David Dunn obtained
a search warrant for drugs and drug-related materials
at 1837 Arkansas Avenue, Mulberry Grove, Illinois. The
house was easy to recognize because it was pink-pan-
eled. Dunn’s search warrant affidavit described two
covert drug buys he had orchestrated with Agent
Michael McCartney. The first involved a confidential
No. 08-1369 3
informant who entered the residence next to 1837
Arkansas Avenue to buy cocaine from Edith Fletcher.
The informant was wearing an eavesdropping device,
which enabled Dunn to hear Fletcher say that she
needed to run next door to retrieve the drugs. Dunn
then watched her do just that, and the informant later
turned over to the police the cocaine he had purchased
from Fletcher.
The second drug buy involved Virgil T. Green, another
subject who was cooperating with the police. The
affidavit indicated that Green entered the pink house
and purchased cocaine, but this was not strictly accu-
rate. In fact, the transaction occurred in the front yard. The
government provided the following explanation for the
discrepancy. The lay of the land prevented extended
stationary surveillance of the pink house, and so the
police had to drive around the residence instead,
leaving gaps in the time when the house would be visi-
ble. During the purchase, the front of the house
was not in sight. The police relied on Green’s recitation
of events to fill in the gap, and he merely stated that he
bought the drugs from Smith. They assumed (wrongly)
that it occurred inside the pink house when it did not.
The government thus concedes the presence of an error
in the affidavit, but claims that it was an innocent over-
sight.
On May 17, 2006, Dunn obtained a second search
warrant for drugs and drug-related materials at 1837
Arkansas Avenue. Dunn’s 2006 search warrant affidavit
referred to the 2005 affidavit and claimed that three
4 No. 08-1369
controlled buys had been conducted at the residence in
January 2005. Once again, there was an error; in fact, only
the two transactions described above had taken place.
The government again concedes the mistake but labels
it a “scrivener’s error.”
The execution of the 2005 search warrant yielded
43.5 grams of powder cocaine, 8.4 grams of cocaine base,
187.9 grams of marijuana, surveillance equipment, and
a measuring cup that contained cocaine residue. Smith’s
fingerprints were found on the cup. The execution of
the 2006 warrant yielded 16.7 grams of cocaine base,
417.8 grams of marijuana, large sums of money, several
firearms, and miscellaneous ammunition. Based on this
evidence, Smith was indicted for one count of conspiracy
to possess with intent to distribute cocaine and cocaine
base, and seven counts of possession with intent to dis-
tribute cocaine base, in violation of 21 U.S.C. § 841(a)(1).
Before trial, Smith filed a motion to suppress the fruits
of the 2005 and 2006 searches on the basis that the affida-
vits supporting the warrants contained factual misrepre-
sentations. Smith also requested a hearing under Franks
v. Delaware, 438 U.S. 154 (1978). The district court denied
Smith’s motion to suppress as well as his request for a
Franks hearing.
At the end of the fourth day of trial, Juror No. 1 asked
to be excused. The district court excused him after con-
ducting a meeting with him and counsel in chambers
with no court reporter present. It then “memorialized”
for the record what had happened during that closed
meeting, stating that Juror No. 1 felt that he knew too
No. 08-1369 5
much about the situation and could no longer be fair and
impartial. Defense counsel also noted that Juror No. 1 had
said to another jury member that “this testimony is
hitting close to home or something to that effect,” and
defense counsel expressed concern that this comment
may have tainted the jury. The district court did not
perceive any negative impact, but it conducted a second
off-the-record meeting with Juror No. 1 to ask him
whether he remembered the identity of the juror to
whom he had made the remark. He could remember
only that the juror was a male from Red Bud. While
there were six other males sitting on the jury, none was
from Red Bud, and so this information was of no help
in identifying the other juror. The district court took no
further action and proceeded with the case.
The jury convicted Smith of all eight counts, and he
was sentenced to life terms for three counts and
360 months’ imprisonment for the remaining five counts,
all to run concurrently.
II
Smith argues that the district court erred by denying
him a Franks hearing. We review this decision for clear
error. United States v. Harris, 464 F.3d 733, 737 (7th Cir.
2006). In order to obtain a Franks hearing, a defendant
“must make a ‘substantial preliminary showing’ that:
(1) the affidavit contained a material false statement;
(2) the affiant made the false statement intentionally, or
with reckless disregard for the truth; and (3) the false
statement was necessary to support the finding of
6 No. 08-1369
probable cause.” United States v. Maro, 272 F.3d 817, 821
(7th Cir. 2001). The district court denied a Franks
hearing on the basis of the second and third require-
ments, finding no intentionality or recklessness and
concluding that the false statements were not necessary
to support probable cause.
For the 2005 affidavit, Smith argues that the police
demonstrated reckless disregard for the truth in making
an erroneous factual claim about the residence that was
the subject of the search. Because this argument required
it to assess Dunn’s state of mind, the district court
was permitted to “infer reckless disregard from circum-
stances evincing ‘obvious reasons to doubt the veracity’
of the allegations,” United States v. Whitley, 249 F.3d 614,
621 (7th Cir. 2001). It was not required to draw such an
inference, however, and it declined to do so based on
the record before it. Smith did not put forward any
other evidence. We see no reason to find that the
district court clearly erred in finding that Smith was not
entitled to the hearing he sought.
Although he has not articulated it explicitly, Smith is
apparently arguing also that Dunn was acting with
reckless disregard for the truth with respect to the 2006
affidavit, which mentioned three buys instead of two.
The district court was faced essentially with a credibility
issue to resolve: was Dunn reckless, or had he made a
simple scrivener’s error? The court chose the latter inter-
pretation. Cf. United States v. McClellan, 165 F.3d 535, 545
(7th Cir. 1999) (no Franks hearing required for a simple
transposition of numbers in an address). We find no
clear error here either.
No. 08-1369 7
Even without the misstatements or, as Smith would
have it, falsehoods, the information in the affidavits
was enough to establish probable cause. When the
2005 affidavit is stripped of its inaccurate information,
there is still Fletcher’s trip to the pink house to retrieve
cocaine and Green’s purchase of cocaine in the front yard.
The 2006 affidavit relied on further controlled buys in
2006 in addition to the ones noted in the 2005 affidavit.
In both cases, there is clearly sufficient information to
establish probable cause with respect to the pink house.
Smith was not entitled to a Franks hearing, because
there was nothing in this record that compelled the
district court to give him one.
III
Smith further argues that the district court erred in its
handling of Juror No. 1’s misconduct in discussing the
case with another juror. This court reviews a trial court’s
handling of jury misconduct for abuse of discretion.
United States v. McClinton, 135 F.3d 1178, 1186 (7th Cir.
1998). Any error that is found is reviewed for harmless-
ness. United States v. Olano, 507 U.S. 725, 734 (1993).
The district court ruled that Juror No. 1’s statement that
the testimony was “hitting close to home” was innocuous.
As a result, it decided not to pursue more in-depth ques-
tioning of the jury. Smith contends that the district court
should not have conducted a meeting off the record and
that it should have done more to investigate and remedy
the prejudicial effect of Juror No. 1’s statement.
8 No. 08-1369
Holding off-the-record meetings and later memori-
alizing them on the record is not a recommended prac-
tice, as it “greatly handicaps this court in passing on the
question of the district court’s possible abuse of discre-
tion.” United States v. Palomares, 119 F.3d 556, 558 (7th Cir.
1997). It is difficult, however, to see the statement
“hitting close to home” as anything but innocuous, and
Smith has failed to demonstrate how Juror No. 1’s self-
diagnosed lack of impartiality (which he dutifully
brought to the attention of the court) could be trans-
mitted through such a neutral statement. In addition, the
district court may have had good reason not to investi-
gate further, as “quizzing a juror, or perhaps all the
jurors, in the middle of a trial is likely to unsettle the
jury.” United States v. Stafford, 136 F.3d 1109, 1113 (7th Cir.
1998).
Thus, we find no abuse of discretion in the district
court’s handling of Juror No. 1’s statement. In any
event, the error, were there one, would be harmless. The
evidence yielded in the two searches is extensive and
quite damning of Smith, and the government had other
evidence as well, including testimony from various co-
conspirators. Therefore, we hold that Smith is not
entitled to a new trial.
* * *
The judgment of the district court is A FFIRMED.
8-13-09