FILED
NOT FOR PUBLICATION FEB 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30416
Plaintiff - Appellee, D.C. No. 3:06-CR-00067-EJL-1
v.
MEMORANDUM *
CAMERON SCOTT GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted January 12, 2010
Seattle, Washington
Before: KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.
Defendant-Appellant Cameron Scott Griffin (“Griffin”) appeals a conviction
for one count of conspiracy to possess methamphetamine with intent to distribute
in violation of 21 U.S.C. §§ 841(a)(1) and 846, as well as four counts of
distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1). The
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
parties are familiar with the facts of the case so we do not repeat them here. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
First, we conclude that the district court did not err when it denied Griffin’s
motion to suppress evidence seized from an apartment above his sporting goods
store. The warrant described the place to be searched with sufficient particularity
because it “enable[d] law enforcement officers to locate and identify the premises
with reasonable effort” without “any reasonable probability . . . that the officers
[might have] mistakenly search[ed] another premise[s].” United States v. Mann,
389 F.3d 869, 876 (9th Cir. 2004), cert. denied, 544 U.S. 955 (2005) (citation and
internal quotation marks omitted).
We also conclude that the magistrate judge—after reviewing the affidavit’s
description of Griffin’s use of the upstairs apartment immediately before he sold
82.5 grams of methamphetamine to a controlled informant—could easily make a
“practical, common-sense decision [that], given all the circumstances set forth in
the affidavit before him, there [was] a fair probability that contraband or evidence
of a crime [would] be found” in the apartment. Illinois v. Gates, 462 U.S. 213, 238
(1983). Probable cause therefore supported the search.
Second, the district court correctly found that Detective Brian Denny did not
“‘knowingly and intentionally, or with reckless disregard for the truth’” make any
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“erroneous statements or omissions in an affidavit supporting a search warrant” for
Griffin’s home. United States v. Senchenko, 133 F.3d 1153, 1158 (9th Cir. 1998)
(quoting Franks v. Delaware, 438 U.S. 154, 155 (1978)).
The only erroneous statement in the affidavit is Detective Denny’s
representation that a controlled informant arranged to purchase eight ounces of
methamphetamine from Griffin when in actuality he arranged to purchase six
ounces of methamphetamine. This statement was not made with reckless disregard
for the truth because Drug Enforcement Administration (“DEA”) Agent Rick
Taylor had informed Detective Denny that the arrangement was for eight ounces of
methamphetamine. In addition, this error is immaterial. See Franks, 438 U.S. at
156 (court’s second question is whether “with the affidavit’s false material set to
one side, the affidavit’s remaining content is insufficient to establish probable
cause”).
Third, ample evidence supports the jury’s rejection of Griffin’s public
authority and entrapment by estoppel defenses. See United States v. Burrows, 36
F.3d 875, 882–83 (9th Cir. 1994) (public authority defense requires a defendant to
possess a reasonable belief that he was authorized to commit illegal acts and the
entrapment by estoppel defense requires a defendant to act in reasonable reliance
on an official representation as to the legality of his actions).
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Any rational trier of fact could have found Griffin’s reliance on official
statements—or belief in official authorization—unreasonable when presented with
evidence that (1) Griffin signed a written confidential source agreement that
expired in February 2004, well before the 2006 deals for which he was charged, (2)
Griffin was used as a confidential informant for purchases of drugs, but was never
used as a confidential informant to make sales, (3) immediately prior to the
expiration of the agreement, DEA agents told Griffin he was no longer going to be
used as a confidential informant, (4) during Griffin’s tenure as a confidential
informant he was strictly searched and controlled during his controlled buys but
was never searched or controlled during his later sales for which he was charged,
(5) Griffin was repeatedly told he was no longer a confidential source and to avoid
drug traffickers, (6) there was a nine month period during which there was no
contact between Griffin and the DEA, and (7) when Griffin called DEA Agent
Jacob Gilliam on the day of the deal during which he was arrested, Agent Gilliam
told him “not to do any kind of drug negotiating.”
Fourth, the district court did not err by using a model jury instruction on the
public authority defense. Griffin’s proposed addition—that a belief in an official
authorization may be reasonable “even if based on mistake”—has previously been
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rejected by this court. See United States v. Davis, 76 F.3d 311, 314 (9th
Cir. 1996).
Finally, contrary to his argument on appeal, Griffin acknowledged receiving
pretrial a redacted DEA manual in a filing with the district court.
AFFIRMED.
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