U.S. v. Hiveley
| Decision Date | 22 September 1995 |
| Docket Number | 95-1171,Nos. 94-4094,s. 94-4094 |
| Citation | 61 F.3d 1358 |
| Parties | UNITED STATES of America, Appellee, v. Larry Edward HIVELEY, Appellant. UNITED STATES of America, Appellee, v. Ansil Ezra HENRY, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
E. Daniel O'Brien of Cedar Rapids, IA (argued), for Hiveley.
Thomas J. O'Flaherty of Cedar Rapids, IA (argued), for Henry.
Patrick J. Reinert, U.S. Atty's. Office, Cedar Rapids, IA (argued), for appellee.
Before BEAM, Circuit Judge; BRIGHT, Senior Circuit Judge; and MURPHY, Circuit Judge.
A federal grand jury indicted Ansil Ezra Henry, Larry Edward Hiveley, and numerous other co-defendants for various drug trafficking crimes. A jury found both Henry and Hiveley guilty of conspiracy to distribute marijuana, in violation of 21 U.S.C. Sec. 846. The district court 1 sentenced Henry to twenty-one years eight months and Hiveley to nineteen years six months of imprisonment.
On appeal, Henry argues that the district court erred by: (1) denying his motion to suppress evidence and request for hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); (2) denying his post-sentence motion for new trial; and (3) improperly instructing the jury. Hiveley does not appeal his conviction, but claims that the district court committed error in: (1) determining his base offense level; and (2) increasing his sentence two levels for possession of a firearm during the commission of his crime. For the reasons that follow, we affirm.
On May 27, 1994, Ansil Ezra Henry, Larry Edward Hiveley, and numerous other co-defendants were indicted for various drug trafficking crimes, including conspiracy to distribute marijuana and cocaine. We limit our discussion of the facts to Henry's and Hiveley's participation in the conspiracy.
Hiveley and Henry participated in an organization which trafficked drugs from Arizona to Iowa. Hiveley operated a ranch near Phoenix, Arizona. Henry ran a network of storage and distribution facilities in central Iowa for the redistribution of controlled substances obtained from Hiveley. At trial, various members of the organization testified regarding numerous instances of transportation and delivery of controlled substances between Hiveley's ranch in Arizona and Henry's operation in Iowa which occurred between 1986 and 1993.
On September 2, 1993, authorities executed a search warrant at Hiveley's ranch and seized over 1,100 pounds of marijuana from a storage building located on the property. In addition, authorities seized a telephone book listing numerous co-defendants and records reflecting the shipment of marijuana. Hiveley's fingerprints were found on a marijuana package and the records seized. Also, numerous firearms were recovered from Hiveley's residence, including three loaded handguns in the master bedroom along with marijuana, cocaine, and over $3,000 of currency.
Prior to trial, Henry filed a motion to suppress evidence and requested a hearing to challenge the probable cause findings made by the magistrate judge pursuant to Franks v. Delaware. The district court denied Henry's motion. On August 1, 1994, a jury convicted Henry and Hiveley of conspiracy to distribute marijuana. The jury, however, did not find them guilty of conspiring to distribute cocaine.
At sentencing, pursuant to the sentencing guidelines, the district court determined Hiveley's base offense level to be thirty-two added a two-level increase to reflect his possession of a firearm, and added a four-level increase to reflect his role in the offense. Thus, the district court determined Hiveley's total offense level to be thirty-eight, resulting in a sentencing range of nineteen years six months to twenty-four years four months. The district court sentenced Hiveley to nineteen years six months of imprisonment, and a five-year term of supervised release.
The district court determined Henry's base offense level to be thirty-two. The district court increased Henry's base offense level to reflect his obstruction of justice and his role in the offense, resulting in a total offense level of thirty-eight and a sentencing range of twenty-one years eight months to twenty-seven years two months. The district court sentenced Henry to twenty-one years eight months of imprisonment, a five-year term of supervised release, and ordered him to pay a $5,000 fine.
After sentencing, Henry filed a motion for new trial which the district court denied. This appeal followed.
Henry filed a motion to suppress evidence seized from his residence claiming the affidavit used to obtain the search warrant contained five alleged errors. Henry requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The district court found that even if it were to "omit the challenged statements and add information which the defendant asserts was intentionally omitted, there would remain a strong probability that evidence of drug trafficking and the fruits of drug crimes would be found at the Henry residence." Dist.Ct.Opinion and Order dated June 29, 1994 at 2.
Henry argues that the agents wanted to search for drugs. He alleges that the agents falsified their affidavit because they knew that it was not at all probable that drugs would be found at Henry's residence. Henry claims that when the references to falsehoods and reckless disregard for the truth are set aside, insufficient grounds remained upon which to base a finding of probable cause, and the district court erred by not granting an evidentiary hearing to test the Franks motion.
We review the district court's denial of Henry's motion to suppress and request for hearing under the abuse of discretion standard. See United States v. Shurn, 849 F.2d 1090, 1096 (8th Cir.1988). In order to obtain a hearing, a defendant must make a "substantial preliminary showing" of a false or reckless false statement or omission and must further show that the alleged false statement or omission was necessary to a finding of probable cause, and the "substantial preliminary showing" requirement needed to obtain a Franks hearing is not lightly met. United States v. Wajda, 810 F.2d 754, 759 (8th Cir.), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). Probable cause exists when the application for a search "presents sufficient facts to justify a prudent person in the belief that there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Riedesel, 987 F.2d 1383, 1390 (8th Cir.1993) (citations omitted).
After reviewing the record, we determine that the district court did not abuse its discretion in denying Henry's motion to suppress and request for a hearing. The district court appropriately on the record determined that even if the alleged false statements were omitted and the alleged intentionally omitted information were added, probable cause still existed to issue the search warrant. The search warrant indicated that there was probable cause to believe Henry had marijuana at his residence. At a pretrial hearing, the affiant stated an expectation not to find large quantities of marijuana. Although inaccuracies exist in the affidavit used to obtain the search warrant, probable cause still existed to believe there would be marijuana or other evidence of drug trafficking.
Next, Henry argues that the district court erred in instructing the jury because the district court failed to delete particular language from jury instruction number 30. At trial, Henry objected to the wording of jury instruction number 30. Instruction number 30 informed the jury that it had heard evidence that witnesses had been paid for expenses related to providing information to the government and that they could consider the testimony and give it such weight as the jury thought the testimony deserved. The instruction further told the jury that whether the information or testimony provided by the witness was influenced by any payments was for the jury to determine.
The paragraph in instruction number 30 that Henry objected to states, in part, that "[y]ou have also heard evidence that witnesses had arrangements with the government under which they got paid for expenses related to providing information to the government." Henry requested that the words "expenses related to" be deleted from the instruction, leaving room to argue that the informant witnesses were paid for their information. Henry claims that he made this request because the government ignored or refused to respond to repeated requests for disclosure of information about payments made to witnesses, and that the government's Brady violations, coupled with the trial court's refusal to grant a simple remedy, should result in a reversal in this case. We, however, disagree.
We review a trial court's refusal to delete a phrase from a jury instruction for abuse of discretion. United States v. Parker, 32 F.3d 395, 400 (8th Cir.1994). A "district court has wide discretion in formulating appropriate jury instructions." United States v. Walker, 817 F.2d 461, 463 (8th Cir.), cert. denied, 484 U.S. 863, 108 S.Ct. 181, 98 L.Ed.2d 134 (1987) (citations omitted). The court formulated instruction number 30 based upon Eighth Circuit Model Instruction 4.06. The district court modified its draft jury instructions to insert the phrase "expenses related to" to conform the jury instruction to the evidence produced at trial regarding payments made to Mervin White and Mike Hake. Both White and Hake testified they were paid for expenses related to providing information, and not purely for providing information. The district court did not err because the jury...
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