371 F.3d 574 (9th Cir. 2004), 03-30347, United States v. Nielsen

Docket Nº:03-30347.
Citation:371 F.3d 574
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Douglas Merrill NIELSEN, Defendant-Appellant.
Case Date:June 09, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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371 F.3d 574 (9th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Douglas Merrill NIELSEN, Defendant-Appellant.

No. 03-30347.

United States Court of Appeals, Ninth Circuit

June 9, 2004

Argued and Submitted May 5, 2004.

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[Copyrighted Material Omitted]

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Ronald J. Yengich and Vanessa Ramos-Smith, Salt Lake City, UT, for the defendant-appellant.

William W. Mercer and James Seykora, U.S. Department of Justice, Billings, MT; and Demetra Lambros, U.S. Department of Justice, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CR-02-00076-JDS.


BEA, Circuit Judge:

Douglas Merrill Nielsen ("Nielsen") appeals his conviction and sentence for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Nielsen contends that the warrant issued to search his home was unsupported by probable cause; that testimonial hearsay was introduced at his trial in violation of the Confrontation Clause; and that the district court erred in declining to grant a downward adjustment for acceptance or responsibility. For the reasons stated in this opinion, we affirm.


On January 3, 2002, after probationer Katherine Fritzler missed a scheduled appointment with her probation officer, she was contacted by Agent Jeffrey Faycosh of the Montana Division of Criminal Investigation.

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A search of Fritzler's home revealed methamphetamine and marijuana.

Fritzler agreed to cooperate. She informed Faycosh that she had purchased a half gram of methamphetamine from Nielsen at his home for $100, three or four days before her arrest. Fritzler stated Nielsen appeared to have a large quantity of the drug on hand, which he kept in a floor safe in the basement of his home.

Faycosh did a background check on Nielsen, finding an address for Nielsen on Hillview Lane in Billings, Montana, as well as a police report indicating Nielsen had been implicated in prior drug investigations. In April 1999, a confidential informant had purchased 1.5 ounces of methamphetamine from a suspect who had indicated that Nielsen was his supplier. Another Montana DCI report from December 2000 described an interview with Kent Kreiter, an arrestee in a federal drug conspiracy case, who stated that he had purchased methamphetamine from Nielsen on a number of occasions beginning in early 1999, in quantities of up to one ounce. According to the report, Kreiter said that when he purchased drugs from Nielsen at his house in Billings, Nielsen had retrieved the methamphetamine from the basement. Kreiter also stated that Nielsen repeatedly bragged about having large quantities of methamphetamine at his Billings residence. Last, Faycosh also obtained an FBI report by Agent Dan Fagetan describing an interview with informant Charles Nation, who admitted to purchasing methamphetamine from Nielsen beginning in August 2000.

On January 4, 2002, Faycosh and another agent drove by what the informants had indicated was Nielsen's house. A maroon truck parked in front of the residence bore Montana plates registered in Nielsen's name. Faycosh checked the real property records showing Nielsen was the record owner of the house on Hillview Lane. Faycosh then checked Montana criminal records: Nielsen's showed he had been convicted of drug possession in 1977 and 1992.

Following his investigation, Agent Faycosh filed a sworn application for a search warrant with a statement of his training and background in drug investigations. A search warrant was issued, and Nielsen's home was searched on January 7, 2002. A woman identifying herself as Nielsen's girlfriend, Roxanne Volz, was present when the search warrant was executed. The search revealed a total of 731.1 grams of 92% pure methamphetamine, as well as $7000.00 in cash found in a floor safe with the drugs.

Based on the evidence discovered at Nielsen's Billings residence, additional warrants were obtained for a house in Red Lodge, Montana, two bank accounts, and a safety deposit box. A shotgun and various drug paraphernalia were recovered from the Red Lodge cabin, and a total of $31,551.38 was seized from the bank accounts. On June 24, 2002, Nielsen was indicted for one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Nielsen was arrested in Absarokee, Montana, on August 21, 2002, and officers found an additional 4 ounces of methamphetamine in a house that Nielsen had been occupying.

In the district court, Nielsen moved to suppress the evidence seized from his home, claiming the government had not made an adequate showing that the government informants referred to in the search warrant application were reliable, and that the warrant was not otherwise supported by probable cause. Nielsen also moved to suppress the subsequently discovered contraband and proceeds as "fruit of the poisonous tree," because the subsequent

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warrants were based on evidence seized during the initial search.

The district court denied Nielsen's suppression motion, concluding that sufficient probable cause existed to issue the warrant. The district court rejected Nielsen's challenge to the reliability and veracity of the government informants, finding "the informants' basis of knowledge was substantial"; "[t]he tips are so similar that they corroborate each other"; and the informants' tips were reliable because they were statements against penal interest.

The district court also noted that Faycosh had observed that Nielsen's house was a split-level building with a basement and that a maroon truck registered to Nielsen was parked outside. The district court did not assign importance to Nielsen's criminal history, because it only consisted of three paragraphs in a nine-page affidavit, and "was not necessary to a finding of probable cause."

The government's first witness at Nielsen's jury trial was Agent Faycosh, who testified that his investigation began with Katherine Fritzler's post-arrest statement that she had purchased methamphetamine from Nielsen which he kept in a floor safe in the basement of his home. According to Faycosh, after agents located the floor safe, Nielsen's girlfriend Volz denied being able to access the safe's contents:

Q. Did you ask the occupant of the house if they had availability to get into that safe?

A. Yes. The lady had no way of getting into the safe.

Q. And who was she identified as? Was she a relative of the defendant?

A. A girlfriend of the defendant, I believe.

Q. And she said she had no access to the safe?

A. That's correct. She did not have access to the room.

Q. Did she indicate anybody that did have access?

A. The defendant.

Mr. Yengich: Objection, it's hearsay. Ask that it be stricken. It's unconfrontable [sic], as well.

The Court: Overruled.

Faycosh then described using various tools and a locksmith to break into the floor safe. The safe contained methamphetamine, cash, and videotapes of Nielsen using drugs and having sex with Fritzler, not Volz. In other areas of the house, the agents recovered additional small amounts of methamphetamine, a digital scale, small plastic bags, and a mortar and pestle.

On redirect, Faycosh was asked if he did not take fingerprints on the safe because Volz had already said the safe belonged to Nielsen. Nielsen's attorney objected on hearsay and Confrontation Clause grounds, and this time the court sustained the objection.

Nielsen did not testify at his trial. Katherine Fritzler and Kent Kreiter testified that they had purchased methamphetamine from Nielsen at his house, and that Nielsen had large quantities of the drug on hand. FBI Agent Matthew Salacinski testified that after Nielsen's arrest in Absarokee, Montana, officers found mail bearing Nielsen's name and the Billings address, including power, water and internet bills, bank statements and personal mail.

The jury returned a verdict of guilty. A presentence report ("PSR") was prepared by the U.S. Probation Office which recommended a total offense level of 36. The PSR recommended against a downward adjustment in Nielsen's offense level for acceptance of responsibility, noting:"The defendant is not entitled to a reduction in

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the base offense level under U.S.S.G. § 3E1.1 because he put the Government to its burden of proof at trial by denying the factual elements of guilt."

At a sentencing hearing on July 30, 2003, Nielsen's attorney asserted that an earlier offer by Nielsen to enter a conditional guilty plea entitled him to a downward adjustment for acceptance of responsibility pursuant to § 3E1.1. In response, the government denied that Nielsen had cooperated or shown any signs of remorse:

We wanted to know where it was coming from, where it was being manufactured. He didn't want to present us with that evidence.... And there is no reason, not even in the presentence report, that he attempted to say that by saying, Yes, I did it, and I possessed this with intent to distribute, and I'm remorseful, but I still want to preserve [Nielsen's challenge to the denial of the motion to suppress]. He didn't do that, Judge, he just wants to make a legal argument to this Court.

(ER 108).

The district court concluded that Nielsen was not entitled to an acceptance of responsibility adjustment, noting: "It did go to trial. He did not provide any information to the Government." The district court entered judgment, adopting the findings and recommendations of the PSR, and sentencing Nielsen to 285 months in prison followed by five years of supervised release.


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