U.S. v. Curtis

• Decision Date: 27 May 1992
• Docket Number: 91-1760 and 91-2334,Nos. 91-1726,s. 91-1726
• Citation: 965 F.2d 610
• Parties: UNITED STATES of America, Appellee, v. Thomas Lee CURTIS, Appellant. UNITED STATES of America, Appellee, v. Patty M. THOMPSON, Appellant. UNITED STATES of America, Appellee, v. Patty M. THOMPSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 610

965 F.2d 610

UNITED STATES of America, Appellee, v. Thomas Lee CURTIS, Appellant.

UNITED STATES of America, Appellee, v. Patty M. THOMPSON, Appellant.

UNITED STATES of America, Appellee, v. Patty M. THOMPSON, Appellant.

Nos. 91-1726, 91-1760 and 91-2334.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 16, 1991.

Decided May 27, 1992.

Dean Stowers, Des Moines, Iowa, argued for appellant Thomas Lee Curtis.

William Bauer Burlington, Iowa, argued for appellant Patty Thompson.

John Beamer, Des Moines, Iowa, argued for appellee U.S.

Before WOLLMAN, Circuit Judge, and BRIGHT and ROSS, Senior Circuit Judges.

ROSS, Senior Circuit Judge.

Thomas Lee Curtis and Patty M. Thompson appeal their convictions and sentences for conspiracy to manufacture marijuana and the manufacture of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. Thompson also appeals the district court's order of forfeiture of her residence from which marijuana was seized. We affirm.

I.

On October 31, 1989, the Sheriff's Office of Des Moines County, Iowa, received information from a confidential informant that marijuana was being grown in the basement of Thompson's residence in rural Burlington, Iowa. On August 28, 1990, following ten months of surveillance and investigation, Deputy Sheriff Jeffrey White obtained and executed a search warrant of Thompson's residence. Curtis and Thompson, who resided together at the residence, were arrested after marijuana plants were found growing in Thompson's basement. Paraphernalia related to the growing and smoking of marijuana was also seized. Both Curtis and Thompson were charged with conspiracy to manufacture marijuana, manufacture of marijuana, possession with intent to distribute marijuana, and possession of a firearm in relation to those offenses. Thompson was also charged with using or intending to use her home to commit or facilitate the drug offenses, subjecting her home to civil forfeiture pursuant to 21 U.S.C. § 853(a).

Prior to trial, Curtis and Thompson moved to suppress the evidence seized from Thompson's house, claiming that the application for the search warrant contained false information and was otherwise insufficient to support a finding of probable cause. During a hearing on the motions, Curtis and Thompson orally moved for disclosure of the identity of the confidential informant who had provided information to Deputy White. The district court, ¹ after conducting an in camera review of evidence relating to the confidential informant, denied appellants' motion for disclosure. The district court also denied appellants' motions to suppress, finding that there had been no showing that Deputy White knowingly or recklessly presented false information to the magistrate in his affidavit for the search warrant.

Following a three-day trial, Curtis and Thompson were convicted of conspiracy to manufacture marijuana (Count I) and manufacturing marijuana (Count II), and acquitted of the remaining charges. The jury also returned a verdict that Thompson's residence should be forfeited. The district court sentenced Curtis to 120 months imprisonment and Thompson to 60 months imprisonment, and entered an order of forfeiture for Thompson's residence. Curtis and Thompson now appeal.

II.

Both Curtis and Thompson argue that the district court erred in denying their motions to suppress. The essence of their argument is that the warrant affiant, Deputy White, was reckless in failing to investigate certain information provided by the confidential informant and Thompson's ex-son-in-law, which was included in the search warrant application. ² Curtis and Thompson claim that both statements were unreliable, because (1) the confidential informant, who was being questioned on several "bad checks" at the time of his statement, was motivated to provide false information in an effort to "cooperate" with the police, and (2) Thompson's ex-son-in-law, who was being questioned on his alleged assault on Thompson's daughter at the time of his statement, was motivated to provide false information against Thompson based on his history of domestic disputes with the Thompson family.

Where a criminal defendant seeks suppression of evidence by challenging the veracity of information contained in the warrant affidavit, the only relevant inquiry for the district court is whether the warrant affiant knowingly, deliberately or recklessly included false statements in the warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978). On appellate review, we consider the district court's disposition of the motion to suppress under a clearly erroneous standard. United States v. Lueth, 807 F.2d 719, 725 (8th Cir.1986).

The district court held an evidentiary hearing on appellants' motions to suppress, specifically with regard to the reliability of the information obtained from the confidential informant. After hearing testimony from Shon Thompson (appellant Thompson's son), Deputy White, and another officer who was present during the search of Thompson's residence, the district court properly focused its inquiry on whether Deputy White knowingly or recklessly presented false information to the magistrate in the warrant application. The district court found no evidence that Deputy White had knowingly presented false information. The court also found no evidence that Deputy White had recklessly presented false information to the magistrate, noting that the confidential informant had sufficiently established himself as a reliable informant during the ten-month period after his initial report to Deputy White. The district court did not consider whether Deputy White was reckless in including the information obtained from Thompson's ex-son-in-law, because appellants did not focus or present any evidence on that particular issue.

Having reviewed the record on this matter, we cannot say that the district court clearly erred in its findings. Furthermore, we note that, aside from the information provided by the confidential informant and Thompson's ex-son-in-law, there was other evidence to support a finding of probable cause for the search warrant. Specifically, there were several anonymous calls to police, reporting drug activity and the growing of marijuana at Thompson's residence. There was also evidence of Curtis' purchase of hydroponic growing equipment in March of 1989 and of excessive electricity usage at Thompson's residence during the period of investigation, which was consistent with an indoor marijuana growing operation. We therefore affirm the district court's denial of appellants' motions to suppress.

III.

Curtis also asserts that the district court erred in denying appellants' motion for disclosure of the confidential informant's identity. He argues that such disclosure was necessary in order to establish, through cross-examination, the informant's motive for fabricating a story about Shon Thompson's claims of marijuana at his mother's home.

The burden is on the defendant to show the materiality of the need for disclosure of a confidential informant's identity. United States v. Grisham, 748 F.2d 460, 463-64 (8th Cir.1984). That burden requires more than mere speculation that the testimony of the informant might prove to be helpful to the defense. Id. at 464; United States v. Buffington, 815 F.2d 1292, 1299 (9th Cir.1987). There must be some showing that the disclosure is vital to a fair trial. United States v. Weir, 575 F.2d 668, 673 (8th Cir.1978).

At the suppression hearing in this case, defense counsel asserted that it hoped disclosure would lead to the discovery that a "deal" had been cut between the informant and the government, as a possible motive for the informant's story regarding Shon Thompson's claims. Although the court noted that defense counsel's position was rather speculative, it proceeded to conduct an in camera inquiry to determine the materiality of the confidential informant's testimony. Thereafter, the court concluded that disclosure of the informant's identity was not critical to appellants' defense.

Having reviewed the record of the hearing, as well as the record made in camera, we conclude that the district court did not abuse its discretion in denying appellants' motions for disclosure. Appellants failed to establish that disclosure of the informant's identity or his testimony was vital to their defense. We therefore affirm the district court's denial of the motions for disclosure.

IV.

Next, we consider appellants' claims relating to their sentencings. Curtis asserts that the district court's five-year enhancement of his sentence for a prior state felony conviction, pursuant to 21 U.S.C. § 841(b)(1)(B), was cruel and unusual punishment in violation of the Eighth Amendment and a denial of equal protection of the law. Curtis received the five-year enhancement for his 1980 conviction for possession of methaqualone, classified as a Class IV felony under Illinois law, for which he was fined $300. Curtis argues that the same offense is classified as only a serious misdemeanor in many states (e.g., Iowa, California, New York), and thus individuals who commit similar offenses receive disparate sentences, depending on how the offense is classified under state law. He asserts that the resulting disparity of sentences is cruel and unusual punishment within the meaning of the Eighth Amendment and a violation of equal protection.

At sentencing, the district court rejected Curtis' argument, stating,

[I]t is for each state to enact its own criminal laws and to find what the punishment shall be for prohibited conduct and make a determination whether a particular prohibited conduct shall be a misdemeanor or shall be a felony. ... [T]he Federal Enhancement Statute, is predicated on whether the prior conviction was a felony conviction, not predicated on conduct and whether certain types of conduct might be a felony in one...