U.S. v. Ball

• Decision Date: 22 August 2007
• Docket Number: No. 06-4135.,06-4135.
• Citation: 499 F.3d 890
• Parties: UNITED STATES of America, Appellee, v. Clint L. BALL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

499 F.3d 890

UNITED STATES of America, Appellee, v. Clint L. BALL, Appellant.

No. 06-4135.

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2007.

Filed: August 22, 2007.

Christopher M. Choate, McNabb Associates, P.C., Houston, TX, argued, for appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee.

Before BYE, RILEY, and BENTON, Circuit Judges.

RILEY, Circuit Judge.

Clinton Ball (Ball) was indicted for conspiring to possess with the intent to distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and being a user of a controlled substance in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Ball filed motions to suppress evidence, which the district court¹ denied. A jury convicted Ball on both counts, and the district court sentenced Ball to 262 months' imprisonment. This appeal followed. We affirm.

I. BACKGROUND

In March 2004, Missouri state troopers stopped Eric Fujan (Fujan) for a traffic violation. In Fujan's vehicle, the troopers discovered two and one-half pounds of methamphetamine, some marijuana, a large sum of cash, and scales with methamphetamine residue. The state troopers arrested Fujan.

Fujan later agreed to cooperate with law enforcement and told Drug Enforcement Administration Special Agent Richard Wymer (Agent Wymer) that Fujan intended to sell the two and one-half pounds of methamphetamine to John Harris (Harris). Fujan admitted conducting several large quantity methamphetamine transactions with Harris, which Ball financed. Fujan explained he did not deal directly with Ball because Ball used Harris as a middle man, allowing Ball to distance himself from the conspiracy. Fujan said, however, he met Ball once by chance at Harris's house. Fujan told Agent Wymer most transactions between Fujan and Harris were conducted near Ball's residence. Fujan learned from Harris's other methamphetamine supplier, Jared Calovich (Calovich), that Ball's residence was located at 2720 East Farm Road 188 in Ozark, Missouri. Agent Wymer and Fujan drove by 2720 East Farm Road 188. According to Calovich, Ball kept large sums of cash and methamphetamine at his residence and Ball fronted Harris money to make large-quantity methamphetamine buys from Calovich. Fujan told Agent Wymer that Harris bought over ten and one-half pounds of methamphetamine using money Ball fronted to Harris.

In cooperation with law enforcement, Fujan placed a recorded telephone call to Harris setting a meeting for the purpose of exchanging a better quality of methamphetamine for a supply of lower-grade methamphetamine Fujan previously supplied to Harris. Law enforcement officers arrested Harris when Harris took possession of the methamphetamine. Following his arrest, Harris agreed to cooperate and told the law enforcement officers he intended to deliver the methamphetamine to Ball. Thereafter, in cooperation with law enforcement, Harris made a recorded telephone call to Ball arranging a controlled delivery.

While the controlled delivery was being arranged, Agent Wymer obtained a search warrant for Ball's residence. Agent Wymer submitted an affidavit detailing Ball's involvement in the conspiracy based on the information provided by Fujan and Harris, along with information provided by other law enforcement agencies regarding drug deals at 2720 East Farm Road 188. Agent Wymer supervised the controlled delivery, while other law enforcement agents executed the search warrant on Ball's residence. At Ball's residence, the officers seized small quantities of drugs, two firearms, ammunition, police scanners, a cooler containing baggies and a cannister of MSM (a methamphetamine cutting agent), and drug paraphernalia.

When Ball arrived at the scene of the controlled delivery, a friend alerted Ball that police were on their way. Ball took off in his vehicle, and after a brief chase, Agent Wymer apprehended Ball and placed him under arrest. Agent Wymer searched the passenger compartment of Ball's vehicle and discovered a drab olive-colored vial with a screw-top lid containing pills and pill fragments, as well as a baggie containing.20 grams of methamphetamine, a police scanner, and a cell phone. Agent Wymer moved Ball's vehicle and completed the vehicle search at Ball's residence where the warrant search was underway.

Ball, Fujan, Calovich, Harris, and four other individuals were indicted for conspiring to possess with intent to distribute methamphetamine. Ball also was indicted for being a user of a controlled substance in possession of a firearm. Ball filed motions to suppress evidence seized during the searches of Ball's residence and vehicle. The district court denied the motions. Fujan, Calovich, and Harris pled guilty and testified against Ball at his trial.

At sentencing, the district court found Ball's 1995 Missouri state conviction for simple possession of a controlled substance triggered the 20-year mandatory minimum sentence under § 841(b)(1)(A). See 18 U.S.C. § 841(b)(1)(A) ("If any person commits . . . a violation [of § 841(a)] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment."). Ball's base offense level of 38 with a criminal history category II produced an advisory United States Sentencing Guidelines range of 262 to 327 months. The district court sentenced Ball to 262 months' imprisonment on the conspiracy conviction and 120 months' imprisonment on the firearm conviction, to be served concurrently.

Ball appeals, challenging the denial of his motions to suppress, four evidentiary rulings, the sufficiency of the evidence to support his convictions, and the reasonableness of his sentence.

II. DISCUSSION

A. Motions to Suppress Evidence

1. Validity of the Search Warrant

Ball argues Agent Wymer's affidavit in support of the search warrant was insufficient to establish probable cause because the information contained in the affidavit was based on the incredible, unreliable, and inconsistent statements of Ball's criminal co-defendants, and also contained factual errors.² When considering a district court's denial of a suppression motion, we review for clear error the district court's factual findings and review de novo its legal conclusions based on those facts. United States v. Salazar, 454 F.3d 843, 846 (8th Cir.2006).

"The Fourth Amendment requires a showing of probable cause before a search warrant may be issued." United States v. Williams, 477 F.3d 554, 557 (8th Cir.2007). Probable cause to issue a search warrant is determined under the totality of the circumstances and "exists when an affidavit in support of the warrant sets forth sufficient facts to establish that there is a `fair probability that contraband or evidence of' criminal activity will be found in the particular place to be searched." United States v. Davis, 471 F.3d 938, 946 (8th Cir.2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

To prevail on his challenge to the search warrant application, Ball must demonstrate "(1) the affiant knowingly and intentionally, or with reckless disregard for the truth, included false information in or excluded material information from the search warrant affidavit; and (2) the affidavit, excluding the false inclusion or including the missing material information, would not support a finding of probable cause." Id. (citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). Mere negligence or an innocent mistake in the application does not make a search warrant void. Id.

In his affidavit in support of the search warrant, Agent Wymer included statements Fujan and Harris made to law enforcement officers, which then detailed: (1) numerous methamphetamine transactions between Fujan and Harris; (2) Harris's silent partner whom he identified as "C.B." or "Clint"; (3) Harris's delivery of the methamphetamine to Ball after buying it from Fujan; (4) the locations, the amounts of money, and the quantities of methamphetamine involved in those transactions; (5) information provided to Fujan by Calovich, identifying 2720 East Farm Road 188 as "C.B's" residence and the location of several drug transactions; and (6) Agent Wymer's verification that Ball lived at 2720 East Farm Road 188. The affidavit also included information Agent Wymer obtained from the Missouri Highway Patrol, Combined Ozarks Multi-jurisdictional Enforcement Team (COMET) Drug Task Force, and the Greene County (Missouri) Sheriff's Department regarding investigations of drug activity at 2720 East Farm Road 188. The affidavit listed an account of Agent Wymer's follow-up investigation after receiving the information from the cooperating witnesses and the other law enforcement agencies. At the suppression hearing, Agent Wymer testified that nothing in the affidavit was false, misleading, or intentionally omitted.

We conclude the district court properly determined the statements made by Fujan and Harris, which Agent Wymer relied upon in his affidavit, had several indicia of reliability including: (1) the information was not from an anonymous or confidential informant; (2) the affidavit mentioned Fujan and Harris by name; (3) Fujan and Harris both were heavily involved in the conspiracy and Harris had firsthand knowledge of Ball's role in the conspiracy; (4) the statements made by Fujan and Harris were against their penal interests at the time the statements were made; and (5) the statements were corroborated by other law enforcement sources. See United States v. Caswell, 436 F.3d 894, 897 (8th Cir.2006) (stating a magistrate judge's probable cause determination should be given great deference if it is based on a "practical, common-sense decision whether, given all the circumstances...