U.S. v. Cowling

• Decision Date: 08 August 2011
• Docket Number: No. 10–3778.,10–3778.
• Citation: 648 F.3d 690
• Parties: UNITED STATES of America, Appellee,v.Joe Thomas COWLING, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

648 F.3d 690

UNITED STATES of America, Appellee,

v.Joe Thomas COWLING, Jr., Appellant.

No. 10–3778.

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2011.Filed: Aug. 8, 2011.

Gregory Thomas Racette, argued, Des Moines, IA, for appellant.Mary Clare Luxa, AUSA, argued, Des Moines, IA, for appellee.Before BYE and MELLOY, Circuit Judges, and SMITH CAMP,¹ District Judge.SMITH CAMP, District Judge.

A jury found Joe Thomas Cowling, Jr., guilty of two counts of conspiracy to possess, sell, or dispose of stolen firearms, one count of possessing firearms as a felon, and one count of possessing a stolen firearm. The district court ² sentenced Cowling to a total term of sixty-three (63) months imprisonment. Cowling appeals, arguing that his conviction should be reversed because it was based on evidence obtained pursuant to a constitutionally inadequate search warrant. He also argues that at trial the district court impermissibly limited cross-examination of government witnesses and erred in admitting testimony by co-conspirators and evidence of prior bad acts. Finally, Cowling contends that there was insufficient evidence to sustain his conviction. We affirm.

I. BACKGROUND

A. Facts

On March 12, 2009, Wayne County, Iowa, Deputy Sheriff Tyler Moore interviewed a Confidential Informant (“CI”) after discovering an illegal sawed off shotgun at the CI's residence (hereinafter “Interview # 1”). The CI agreed to provide Deputy Moore with information about three burglaries. The first burglary took place on February 15, 2009, at the residence of Steve Keyner; the second burglary took place on February 27, 2009, at the residence of Robert Boyce; the third burglary took place on no specific date, at Iowa Select Farms (“ISF”). At both residential burglaries, the items stolen included firearms, ammunition, and other property. At the ISF burglary, the items stolen included various fuel tanks and diesel fuel. The CI denied any involvement in the burglaries, but said he allowed his friends to store some of the stolen items, including some firearms, at his apartment.

On March 18, 2009, Deputy Moore interviewed the CI a second time, in the presence of the CI's attorney (hereinafter “Interview # 2”). During Interview # 2, Deputy Moore told the CI that information uncovered by police indicated the information provided by the CI during Interview # 1 was false. The CI again denied his own involvement in the burglaries, however, he did tell Deputy Moore that he knew who committed the burglaries and what had been stolen. The CI stated that Tony Allen, Devin Draper, and Joe Snook committed the Keyner burglary, and the Boyce burglary was committed by Allen, Snook, and Jason Bottjen. The CI also told Deputy Moore that Snook told him it was Cowling's idea to burglarize the Boyce residence and that Cowling wanted a .22 Ruger from the Boyce residence in exchange for coordinating the burglary.

Following Interview # 2, Deputy Moore used information the CI provided to locate a stolen ISF fuel tank on Cowling's property. Deputy Moore also confirmed that the firearms described by the CI matched those reported stolen from the Boyce residence, and that a vehicle registered to Snook's grandfather and mother matched the CI's description of the vehicle Snook drove.

Thereafter, Deputy Moore applied for a search warrant for Cowling's residence. As part of the application, Deputy Moore completed an affidavit that summarized Interview # 2, stating that Cowling was in possession of a .22 Ruger from the Boyce residence and possibly another shotgun. Deputy Moore failed to include in the affidavit the fact that the CI had provided false information during Interview # 1. County Attorney Alan Wilson signed the warrant application, and checked a box indicating that the “informant has not given false information in the past.” A Wayne County Magistrate approved the search warrant application. Subsequently, on March 18, 2009, Deputy Moore and other law enforcement officers executed the warrant, searched Cowling's residence, and seized a stockpile ³ of firearms.

B. Prior Proceedings

In September 2009, a federal grand jury returned a ten-count indictment against Cowling and four other individuals. As relevant here, Counts 1 and 6 charged Cowling with two separate conspiracies to possess stolen firearms, in violation of 18 U.S.C. § 371; Count 4 charged Cowling with being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1); and Count 8 charged Cowling with possessing a stolen firearm, in violation of 18 U.S.C. § 922(j). Cowling filed a motion to suppress evidence of the firearms seized from his residence during the execution of the search warrant on March 18, 2009. Following a hearing, the district court denied the motion.

A jury trial ensued. The government called several witness including the CI and Snook. Snook testified to stealing a variety of fuel tanks, diesel fuel, and other farm equipment from ISF. Snook and the CI both testified that Cowling purchased a stolen ISF fuel tank from them and they had placed the stolen tank in a shed on Cowling's property. In addition, Snook and the CI both testified that Cowling purchased stolen diesel fuel from them for $1 per gallon.

The jury found Cowling guilty of Counts 1, 4, 6, and 8. The district court sentenced Cowling to sixty-three (63) months imprisonment on Counts 4 and 8 and sixty (60) months imprisonment on Counts 1 and 6, all counts to be served concurrently. Cowling filed a timely appeal challenging the district court's denial of his motion to suppress, several evidentiary rulings at trial, and the sufficiency of the evidence supporting his conviction on Counts 1, 4, and 6.

II. DISCUSSION

A. Motion to Suppress

Cowling appeals the district court's denial of his motion to suppress the evidence of firearms seized from his residence during the execution of a duly issued search warrant on March 18, 2009. First, Cowling argues that under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the evidence must be suppressed because the affidavit in support of the warrant contained false and misleading statements that were material to the magistrate's determination of probable cause.⁴ In support of his argument, Cowling points to the fact that the warrant application indicated that the “informant has not given false information in the past” when Deputy Moore knew the CI had provided false information during Interview # 1. Second, Cowling contends that the warrant failed to establish a nexus between the thing sought (guns) and the place to be searched (Cowling's residence). The crux of this argument is that the only thing linking the guns to Cowling's residence was a single statement by the CI.

To prevail on a Franks challenge, a defendant must show the following: (1) the affiant officer knowingly and intentionally, or with reckless disregard for the truth, included a false or misleading statement in, or omitted information from, the affidavit in support of the warrant; and (2) “the affidavit would not establish probable cause if the allegedly false information is ignored or the omitted information is supplemented.” United States v. Mashek, 606 F.3d 922, 928 (8th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1605, 179 L.Ed.2d 506 (2011).

The district court found that the warrant application's representation that the CI had not given false information in the past was made with reckless disregard for the truth. Thus, the first element of the Franks inquiry was satisfied. The district court further found, however, that even including the fact that the CI had given false information during Interview # 1, the affidavit nevertheless established probable cause to search Cowling's residence. We review the district court's probable cause determination de novo. United States v. Vanover, 630 F.3d 1108, 1113–14 (8th Cir.2011).

An affidavit establishes probable cause if it sets forth sufficient facts to establish that there is a fair probability that contraband or evidence of criminal activity will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A probable cause determination is based on the totality of the circumstances. United States v. Morales, 923 F.2d 621, 623–24 (8th Cir.1991). “When information supplied by an informant forms the basis for probable cause in a warrant, the ‘core question in assessing probable cause ... is whether the information is reliable.’ ” United States v. Nieman, 520 F.3d 834, 839–40 (8th Cir.2008) (quoting United States v. Williams, 10 F.3d 590, 593 (8th Cir.1993)). In assessing such reliability, this Court considers several factors, such as (1) whether officers conducted a face-to-face interview with the informant, (2) the level of detail included in the information provided to law enforcement by the informant, and (3) whether law enforcement independently corroborated any of the information provided by the informant. United States v. Robertson, 39 F.3d 891, 893–94 (8th Cir.1994) (interviewing an informant face to face “gives greater weight to an officer's decision to rely on that information,” and “there is an inherent indicia of reliability in ‘the richness and detail of a first-hand observation.’ ”) (quoting United States v. Jackson, 898 F.2d 79, 81 (8th Cir.1990)); United States v. Stropes, 387 F.3d 766, 772–73 (8th Cir.2004) (noting corroboration of information is a relevant factor in establishing probable cause).

We agree with the district court's conclusion that probable cause to search Cowling's residence still would have existed even if the affidavit had included the fact that the CI had given false information during Interview # 1. First, Deputy Moore interviewed the CI in person on multiple occasions. Second, during his face-to-face interviews with police, the CI provided detailed descriptions of both the stolen items and their location....