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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12665
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-00323-LSC-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH LEROY THOMAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
________________________
(August 15, 2018)
Before TJOFLAT, NEWSOM and HULL, Circuit Judges.
PER CURIAM:
Joseph Leroy Thomas appeals the district court’s orders denying his motions
to compel discovery, to suppress evidence, and for a bifurcated hearing after
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pleading guilty to being a felon in possession of a firearm. After careful review of
the record and consideration of the parties’ briefs, we affirm.
I. BACKGROUND
A. Initial Proceedings
In July 2016, a federal grand jury indicted Thomas on one count of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), based on his
possession of five firearms and assorted ammunition, after having previously been
convicted of several felony theft and controlled substance offenses. The weapons
were discovered during the execution of a search warrant issued for Thomas’s
home on January 6, 2016 in connection with suspected controlled substance
offenses.
In the search warrant application and affidavit, Officer Timothy Traynham
of the Dothan Police Department recited the following information as probable
cause for the search:
On January 6, 2016 Investigator Krabbe received information from a
reliable confidential informant (CI) that Joseph Thomas received
approximately ten pounds of synthetic marijuana at his home at 1026
S. Bell Street Dothan, Houston County, Alabama the night prior.
Based off of the information provided[,] physical surveillance of the
residence was conducted. During the surveillance Corporal Godwin
observed a white male approach 1026 S. Bell Street Dothan, Houston
County, Alabama and stay for approximately one minute before
leaving. Contact was made with the undisclosed white male. During
their contact the subject was found in possession of synthetic
marijuana where he stated he purchased from 1026 S. Bell Street from
a black male known to him as “Joe.”
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A state court judge found probable cause to issue a search warrant, and police
executed the warrant that same day, January 6, 2016.
Initially, Thomas pled not guilty to the felon-in-possession charge, but in
November 2016, Thomas filed a notice of intent to change his plea to guilty,
without a written plea agreement. The notice did not explicitly reserve any rights
to appeal. A change of plea hearing was scheduled for December 8, 2016, but
ultimately was not held.
B. Thomas’s Motion to Suppress Evidence and Compel Discovery
Instead, on December 21, 2016, Thomas filed a motion to suppress evidence
and compel discovery. In his motion, Thomas (1) moved to suppress all evidence
obtained from the search of his home on January 6, 2016, as well as all statements
he made to law enforcement officers that day, (2) moved to compel the
government to disclose the identities of the confidential informant (“CI”) and the
unidentified white male referenced in the warrant affidavit, and (3) requested an
evidentiary hearing on those issues.
Thomas challenged the validity of the search warrant on two grounds. First,
Thomas argued that the CI was unreliable and that officers knew the CI was
unreliable. Thomas stated that he “believe[d] the CI is a man who harbors personal
animus against him and who provided false information [about him] to law
enforcement officers in the past.” Thomas asserted, however, that he could not be
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certain of the CI’s identity without compelling the government to reveal his name,
which it had thus far refused to do. Thomas further noted that the CI’s tip was
suspect because the CI told officers that Thomas had received ten pounds of
synthetic marijuana, but when the officers executed the search, they recovered less
than a pound.
Second, Thomas contended that law enforcement officers fabricated the
information concerning the unidentified white male’s alleged purchase of synthetic
marijuana from Thomas on January 6, 2016. Thomas stated that he was “prepared
to testify at a suppression hearing that he did not sell synthetic marijuana to anyone
on January 6, 2016,” and argued that the government had “no good reason . . . not
[to] turn over all information it ha[d] about [the unidentified male],” who was
merely a “fact witness” and not a CI.
C. Government’s Response
In response, the government asserted that it has a privilege not to disclose
the identities of its informants. The government conceded that the privilege is not
absolute, but explained that courts assessing whether disclosure is appropriate in a
given case must balance the public interest in protecting the flow of information
against the defendant’s right to prepare his defense. The government further
explained that this balancing requires the court to consider: (1) the extent of the
CI’s participation in the defendant’s criminal activity; (2) the directness of the
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relationship between the asserted defense and the probable testimony of the CI;
and (3) the government’s interest in nondisclosure.
The government then argued that Thomas failed to satisfy his burden of
showing those factors counseled in favor of disclosure in his case. Specifically, the
government noted that (1) neither informant (the CI or the unidentified white male)
had any involvement with Thomas’s charged firearms offense, (2) Thomas had
asserted no trial defense to which the informants’ testimony might be relevant, and
(3) the government had a strong interest in nondisclosure based on its fear that
Thomas would seek retribution against the informants and its belief that at least
one of the informants continued to provide information to law enforcement.
The government then contended that Thomas was not entitled to a Franks 1
hearing on his motion to suppress because he had not made a sufficient preliminary
showing that the assertions as to both informants in the warrant affidavit were
false. Among other things, the government noted that Thomas had provided no
witness statements or affidavits in support of his motion and made only conclusory
allegations regarding the alleged falsity of the informants’ information.
D. Thomas’s Motion to Bifurcate
Thomas then filed a motion to bifurcate the requested hearings on his motion
to compel and motion to suppress. Thomas conceded that he had not yet met his
1
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).
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burden with respect to the motion to suppress, but contended he could not do so
without first discovering the identities of the government’s informants.
Accordingly, Thomas argued that it was necessary for the district court to conduct
an evidentiary hearing to determine his entitlement to disclosure of the informants’
identities. Thomas further submitted that the three-part test identified by the
government did not apply in the context of his motions to compel and to suppress
because he was challenging the legality of the search and ultimate admissibility of
the evidence, rather than seeking to raise a defense at trial. Thomas therefore
requested that the district court bifurcate the motions to compel and to suppress,
order the government to disclose the informants’ identities, and allow him time to
investigate the informants and amend his motion to suppress based on that
investigation.
A magistrate judge issued an order denying Thomas’s motion to bifurcate.
The magistrate judge determined that there was “sufficient information before the
court to make a determination as to whether the informants’ identities in this case
should be disclosed” and therefore declined to hold an evidentiary hearing on that
issue. The magistrate judge likewise declined to bifurcate the motions to suppress
and to compel and declined Thomas’s request that the district court compel the
government to release the informants’ names, stating that issue would be addressed
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in the magistrate judge’s recommendation to the district court on the original
motion to compel.
E. Magistrate Judge’s Recommendation on Thomas’s Motion to Suppress
Evidence and Compel Discovery
On the same day, the magistrate judge also issued a report and
recommendation (“R&R”) on the motions to suppress and to compel. As to the
motion to compel, the magistrate judge determined that Thomas was not entitled to
disclosure of the informants’ identities under the balancing test required by this
Court’s precedent. First, the magistrate judge determined that the government had
a valid interest in preventing disclosure of the informants’ identities based on its
concerns that Thomas would retaliate against them and that disclosure would
compromise pending investigations because at least one of the informants
continued to provide information to law enforcement. Second, the magistrate
judge concluded that both informants merely acted as “tipsters” and were not
involved in Thomas’s charged firearms offense.
Third, the magistrate judge explained that Thomas was “clearly attempting
to challenge the probable cause supporting the issuance of the state court search
warrant,” and neither informant was connected to Thomas’s charged conduct or
any potential defense he might raise. Accordingly, the magistrate judge concluded
that the factors weighed in favor of the government’s interest in preventing
disclosure, and recommended denying Thomas’s motion to compel.
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As to Thomas’s motion to suppress, the magistrate judge stated that
Thomas’s attack on the search warrant affidavit was “nothing more than
speculative and conclusory.” The magistrate judge noted that although Thomas’s
motion presented a “theory” that the CI was a person who harbored a personal
animus toward him, Thomas provided no witness statements, affidavits, or
evidence of any kind to support his theory. Nor did Thomas present any evidence
that Officer Traynham knew or should have known that the CI was unreliable, or
that Traynham deliberately or recklessly included false information in his affidavit.
The magistrate judge likewise concluded that Thomas failed to provide any
evidence in support of his claim that law enforcement fabricated the encounter
with the unidentified white male or that Officer Traynham knew of any such
fabrication when making the warrant affidavit. Thus, the magistrate judge
determined Thomas failed to make a sufficient preliminary showing of his
entitlement to a Franks hearing, and his motion to suppress was due to be denied.
F. Thomas’s Objections and District Court’s Order
Thomas filed objections to the R&R. Thomas argued that the magistrate
judge applied the wrong standard in reviewing his motion to compel. Thomas
contended that the “central issue” was the legality of the search warrant and
admissibility of the evidence obtained as a result of that warrant and that “[t]hese
[were] not defenses” but questions of law enforcement’s reliance on the
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representations of the informants that formed the basis of for the search warrant.
Thomas therefore asserted that the R&R did not address the “true issues” before
the court. Notably, however, Thomas did not offer any alternative standard for
evaluating those issues.
The district court adopted the R&R over Thomas’s objections and denied his
motions to compel and to suppress. Following the denial of his motions, Thomas
filed a second notice of intent to change his plea, again without a written plea
agreement and without any express reservation of any appeal rights. This time,
Thomas proceeded with his change of plea and pled guilty to the felon-in-
possession charge. 2 Following a sentencing hearing, the district court sentenced
Thomas to 85 months’ imprisonment. 3
II. DISCUSSION
Generally, a defendant’s voluntary, unconditional guilty plea waives all non-
jurisdictional defects in the proceedings against him. United States v. Brown, 752
F.3d 1344, 1347 (11th Cir. 2014); see also United States v. Patti, 337 F.3d 1317,
1322-23 (11th Cir. 2003). Recently, in Class v. United States, the Supreme Court
reviewed the types of non-jurisdictional claims that are waived or barred on appeal
by a defendant’s valid guilty. 583 U.S. __, __, 138 S. Ct. 798, 805-06 (2018).
2
The transcript of the plea hearing is not included in the record on appeal.
3
In this direct appeal, Thomas does not challenge his sentence or any of the guidelines
calculations used in determining his guidelines range or in imposing the sentence.
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Among other things, the Class Court explained that a valid guilty plea “renders
irrelevant—and thereby prevents the defendant from appealing—the
constitutionality of case-related government conduct that takes place before the
plea is entered,” such as a challenge to the admissibility of evidence obtained in
violation of the Fourth Amendment. Id. at __, 138 S. Ct. at 805; see also United
States v. McCoy, 477 F.2d 550, 551 (5th Cir. 1973) (“McCoy also raises several
questions concerning the district court’s refusal to suppress certain evidence.
These issues, however, are clearly non-jurisdictional and were effectively waived
by McCoy’s guilty plea.”).
A defendant who wishes to plead guilty may preserve his appeal rights by
entering a conditional plea. Fed. R. Crim. P. 11(a)(2). Such a plea, however, must
be made “[w]ith the consent of the court and the government,” and must “reserv[e]
in writing the right to have an appellate court review an adverse determination of a
specified pretrial motion.” Fed. R. Crim. P. 11(a)(2); see also United States v.
Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997).
Here, Thomas seeks to appeal the district court’s denial of his motions to
bifurcate, to compel, and to suppress, all of which pertained to his underlying
claim that the search warrant in this case was obtained in violation of the Fourth
Amendment, and thus the evidence obtained from the search should be suppressed.
Thomas also submits that in failing to hold an evidentiary hearing to determine his
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need for disclosure of the informants’ identities to support his motion to suppress,
the district court denied him due process.
The problem for Thomas is that these are non-jurisdictional issues waived by
his unconditional guilty plea. See Class, 583 U.S. at __, 138 S. Ct. at 805; McCoy,
477 F.2d at 551. As noted above, Thomas pled guilty without a written plea
agreement and neither of his notices of intent to change his plea included an
express reservation of any appeal rights. Nor does the record contain any
indication that Thomas ever sought or obtained the consent of the government and
the district court to enter a conditional plea reserving his right to appeal the denial
of his pretrial motions. 4 In the absence of such a written reservation, and without
any argument from Thomas on appeal that his plea was not knowing or voluntary,
Thomas has waived his right to appeal the district court’s denial of his pretrial
motions. See Fed. R. Crim. P. 11(a)(2); Brown, 752 F.3d at 1347. Accordingly,
we affirm Thomas’s conviction and sentence.
AFFIRMED.
4
Notably, Thomas has not filed a reply brief on appeal, and therefore has not responded
to the government’s argument that his guilty plea waived the issues he now seeks to raise. Nor
did Thomas argue that point in his initial brief, aside from a single conclusory statement that he
entered his notice of intent to change his plea “without waiving his right to appeal the trial courts
[sic] denial of his Motion to Suppress and Motion to Bifurcate.” As noted above, however,
Thomas’s notice made no mention of any reservation of appeal rights, and under Rule 11, only
an express, written reservation will suffice to preserve an issue for appeal. See Fed. R. Crim. P.
11(a)(2).
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