U.S. v. Bloomgren, 86-1634
| Decision Date | 27 March 1987 |
| Docket Number | No. 86-1634,86-1634 |
| Citation | 814 F.2d 580 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Elmer BLOOMGREN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ronald G. Pretty, Atty., Cheyenne, Wyo., for defendant-appellant.
Francis L. Pico, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty. with him on the brief), D. Wyo., for plaintiff-appellee.
Before HOLLOWAY and SEYMOUR, Circuit Judges, and SAFFELS, District Judge *.
David Elmer Bloomgren was indicted for violating 18 U.S.C.App. Sec. 1202(a), a felon in possession of a firearm, and for violating 21 U.S.C. Sec. 841(a)(1), possession of a controlled substance with intent to distribute. The trial commenced on these charges on March 3, 1986, and a guilty verdict on both counts was returned by the jury on March 4, 1986. On April 17, 1986, defendant was sentenced to two years imprisonment on Count 1 and four years imprisonment on Count 2, with the sentences to run concurrently. Bloomgren was given a three year special parole term pursuant to the provisions of 21 U.S.C. Sec. 841.
Before trial, defendant filed several motions, including a motion to require the United States to name the confidential informant who provided the information as stated in the affidavit of Special Agent George H. Barnes of the Bureau of Alcohol, Tobacco and Firearms. On January 28, 1986, the court held a hearing on this motion. A written Order denying defendant's motion requiring the United States to name the confidential informant was filed on February 3, 1986.
Shortly before trial, on February 27, 1986, defendant filed a motion for an order directing twenty-six witness subpoenas to be issued at the government's expense. A hearing was held on February 28, wherein David Bloomgren testified. At the hearing, the defendant testified as to his financial inability to cover the expenses of the requested witnesses. Defendant also testified as to the substance of the proposed testimony of these twenty-six witnesses. Bloomgren testified that his witnesses would testify as to their acquaintance with the defendant over a period of years and their lack of knowledge as to the defendant's possession of firearms. Some of those witnesses would also be called to testify as to the area in which the contraband was found, to support defendant's contention that the area was open and anyone had easy access to the area. After the hearing, the court partially granted defendant's motion, in that it issued an order subpoenaing only three witnesses at government expense. The court ruled that the defendant did have the liberty to call other witnesses at his own expense. Bloomgren appeals from these two rulings.
At the hearing on January 28, 1986, defendant sought to obtain the name of the confidential informant who provided information for the affidavit prepared by Special Agent George H. Barnes of the Bureau of Alcohol, Tobacco and Firearms. At that hearing, the defense attorney stated that the defendant felt that there were inaccuracies in the affidavit for the search warrant. Bloomgren never contended that Special Agent Barnes lied on the affidavit for the search warrant, but rather that lies were told to Agent Barnes by the informant and relied on by Agent Barnes in drawing up the affidavit. Bloomgren also specifically objected to the reliability of the confidential informant on the grounds that his or her reliability had not been established by prior contacts. Agent Barnes' affidavit stated:
I, George H. Barnes, am employed as a Special Agent of the Bureau of Alcohol, Tobacco and Firearms, Cheyenne, Wyoming.
On or about January 23, 1985, a confidential informant who has proven to be reliable on most occasions, reported to me that he was employed on a part-time basis as a mechanic for David Bloomgren, dba Riverside Motors. This informant stated further that David Bloomgren routinely carries a small pistol in his hip pocket and usually has a firearm in his office.
On or about February 8, 1985, Casper Police Officer Mike Bachert reported to me that he had a confidential and proven reliable informant who stated to him that he (the informant) has seen David Bloomgren in possession of several stolen firearms. Officer Bachert reported that this observation was alleged to have been made at Riverside Motors. The time and date of the observation was not specified.
On or about February 14, 1985, I conducted visual and electronic surveillance of an undercover contact by a Casper Police Department confidential informant. This undercover contact was at Riverside Motors with David Bloomgren. The informant made an unsuccessful attempt to purchase firearms from Bloomgren then left the premises. During debriefing, the informant stated that while on the premises he noticed the outline of a handgun in David Bloomgren's hip pocket.
On August 9, 1985, Casper Police Department Investigator Brad Blissett reported he had just interviewed a private citizen who had voluntarily come to him to report alleged criminal acts by David Bloomgren. Blissett stated the citizen was a former employee of Bloomgren and requested to remain anonymous. The citizen reported that David Bloomgren is closely associated with the Saints motorcycle gang and is involved in narcotics trafficking activities with the Saints and others. This citizen further stated that David Bloomgren is normally in possession of a chrome or nickel finished, semi-automatic pistol, approximately a .38 caliber. According to this person, the firearm is kept in one of three locations: in Bloomgren's desk drawer in the office of Riverside Motors; in Bloomgren's hip pocket; or under the driver's side front seat of Bloomgren's automobile. The citizen stated he has seen this firearm in Bloomgren's possession within the last 48 hours.
Although this person's reliability has not been established by prior contact as an informant, his truthfulness on this occasion is documented by the following:
On June 20, 1985, ATF Special Agents Patricia Lewis and Steve Pirotte made an undercover contact with David Bloomgren at Riverside Motors. The Special Agents reported they did not see any firearms in plain view and no discussion of firearms was conducted. The Agents did report that Bloomgren commented that he had a close personal relationship with local members of the Saints motorcycle gang.
Bloomgren has been identified as an active close associate of numerous persons currently under investigation in at least two Federal narcotics investigations.
Bloomgren also has been identified by a Casper Police Department investigator as an active close associate of persons under investigation in a significant conspiracy to distribute stolen pharmaceutical drugs.
Bloomgren argued that the affidavit had to be false based on his contention that he was out of town when the confidential informant allegedly saw him in possession of a firearm. Alternatively, defendant requested an in camera hearing for the purpose of identifying the informant and determining if this confidential informant was telling the truth. At the January 8, 1986 hearing, the defendant introduced a credit card slip from the 7th day of August in support of his argument that he was out of town on the date that the informant allegedly saw him in possession of guns.
In response to defendant's motion, the government argued that because Bloomgren did not contend that Special Agent Barnes, the affiant, lied on the affidavit, defendant did not meet his burden under the decision in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The government also brought to the court's attention the fact that the credit card slips offered by the defendant were not conclusive evidence as to defendant's whereabouts. One credit card account slip did not contain the defendant's or any individual's name. The second slip did not contain David Bloomgren's account name or number, but rather an individual by the name of Denise Schwilke. The government argued that defendant's evidence clearly did not meet the "substantial showing" of falsehood required by the decision in Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676-77, and Schauble, 647 F.2d 113, 117 (10th Cir.1981). Alternatively, the government asserted that defendant could not demonstrate that the affiant proceeded in reckless disregard of the truth nor that the affiant did not thoroughly investigate the reliability or the veracity of the informant and his or her statement.
On February 3, 1986, the court issued a written Order which stated:
IT IS FURTHER ORDERED that Defendant's Motion for Hearing Pursuant To Delaware v. Frankes, [sic] Motion to Suppress Search Warrant Due to Affidavit that Does Not Show Probable Cause, Motion to Suppress Evidence, and Motion For Name of Confidential Informant be, and the same are hereby, denied because and for the reason that under United States v. Schauble, 647 F.2d 113 (10th Cir.1981), it is not enough to show that an informant may have lied to an unsuspecting affiant. A warrant may only be challenged through a showing that the affiant acted knowingly or with reckless disregard for the truth, by including a false statement in an affidavit.
Id. The United States Supreme Court decision in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), laid the foundation for a defendant to move the court to request the name of a confidential informant. In Franks, the United States Supreme Court held that there is a presumption of validity with respect to an affidavit supporting a search warrant.
To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate...
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