U.S. v. Jones

• Decision Date: 06 November 1998
• Docket Number: No. 97-5222,97-5222
• Citation: 159 F.3d 969
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Climmie JONES, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 969

159 F.3d 969

UNITED STATES of America, Plaintiff-Appellee, v. Climmie JONES, Jr., Defendant-Appellant.

No. 97-5222.

United States Court of Appeals, Sixth Circuit.

Argued April 30, 1998.

Decided Nov. 6, 1998.

Lawrence W. Moon, Jr. (argued and briefed), Asst. U.S.Atty., Office of U.S.Atty., Nashville, TN, for Plaintiff-Appellee.

Climmie Jones, Jr. (briefed), Atlanta, GA, David L. Cooper (argued and briefed), Cannon, Cannon & Cooper, Goodlettsville, TN, for Defendant-Appellant.

Before: JONES, MOORE, and COLE, Circuit Judges.

OPINION

COLE, Circuit Judge.

This direct criminal appeal from various drug and weapons convictions asserts multiple points of error. Defendant-Appellant Climmie Jones, Jr. contends that the district court erred: (1) by denying his motion to suppress evidence seized from his residence pursuant to a search warrant; (2) by denying his motion to dismiss the indictment based on a selective prosecution argument or, alternatively, by denying his motion for discovery on that issue; (3) by denying his motion for judgment of acquittal on the basis of insufficient evidence; (4) by allowing the Government to prove his prior felony conviction at trial when he offered to stipulate to the conviction; (5) by enhancing his base offense level by two levels for the possession of a stolen weapon; and (6) by enhancing his base offense level by two levels for obstruction of justice. In pro se briefing, Jones raises additional issues, all of which involve settled law, except for one issue involving the amendment to U.S.S.G. § 2D1.1, which added a definition of "cocaine base." For the reasons that follow, we affirm in part and reverse in part, and remand for further proceedings in accordance with this opinion.

FACTS AND PROCEEDINGS BELOW

On March 20, 1996, a superseding twenty-one count indictment was filed against Jones (as well as two co-defendants), charging him with: conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 (Count 1); distribution and possession with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 2, 4, 6, 7, 9, 11, 13, 15, 17 and 18); distribution and possession with intent to distribute cocaine and cocaine base within 1000 feet of school property, in violation of 21 U.S.C. § 860 and 18 U.S.C. § 2 (Counts 3, 5, 8, 10, 12, 14, 16 and 19); possession of a sawed-off shotgun, in violation of 26 U.S.C. § 5861(d) (Count 20); and possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 21).

In September of 1996, the district court conducted a hearing on Jones's motion to dismiss the indictment based on selective prosecution and on his motion to suppress evidence. The district court denied the motion to dismiss and, in addition, denied the motion to suppress evidence on all grounds except with respect to certain jewelry and "white tablets," for which it granted the motion. ¹

Later that month, the Government rejected Jones's offer to stipulate to the fact of a prior felony conviction in lieu of the admission of the prior conviction into evidence at trial. Following a jury trial in late October of 1996, Jones was convicted on all the charged counts. In January of 1997, the district court denied Jones's motion for a new trial. The district court additionally denied the Government's motion to dismiss without prejudice count 21 (the felon-in-possession count).

Also in early 1997, the district court conducted a sentencing hearing. The district court denied the Government's motion for an upward departure from the Sentencing Guidelines' prescribed range and sentenced Jones to 262 months of imprisonment, ten years of supervised release and a $1050.00 special assessment. Jones subsequently appealed to this court.

DISCUSSION

A. Suppression of Evidence

Jones contends that the district court erred by denying his motion to suppress the evidence that was seized from his residence pursuant to a search warrant. He argues that the affidavit supporting the warrant failed to establish probable cause that there would be evidence of crack cocaine trafficking at the residence.

When reviewing a denial of a motion to suppress evidence, we generally review the district court's findings of fact for clear error and its conclusions of law de novo. See United States v. Jenkins, 124 F.3d 768, 772-73 (6th Cir.1997). When so doing, we must review the evidence in a light most likely to support the district court's decision. Id. When we review the propriety of a search warrant, we consider the evidence that the issuing magistrate had before him only "to ensure that [he] ha[d] a substantial basis ... for concluding that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citation and quotation omitted). "[C]ourts should not undertake a de novo review of the sufficiency of an affidavit, nor should they invalidate [a] warrant by interpreting [an] affidavit in a hypertechnical, rather than a common sense manner.... Rather, the [issuing magistrate]'s probable cause determination should be afforded great deference by the reviewing court." United States v. Davidson, 936 F.2d 856, 859 (6th Cir.1991) (citation and quotations omitted).

In Gates, the Supreme Court adopted a totality of the circumstances test to determine whether an issuing magistrate appropriately issued a search warrant. Under that test,

[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gates, 462 U.S. at 238, 103 S.Ct. 2317. The Court explained that "probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of criminal activity." Id. at 243-44 n. 13, 103 S.Ct. 2317 (emphasis added).

Jones contends that the search of his residence was based on a warrant which failed to establish probable cause of a nexus between crack cocaine trafficking and the house searched. Jones's argument is that neither the confidential informant nor the law enforcement officer, the individuals who offered information by affidavit to the issuing magistrate, had been inside the house and, therefore, could not have possibly observed any evidence of illegal drug activity therein. Jones contends that the affidavit was misleading because it referred to "said premises" ² which suggested that the confidential informant and the law enforcement officer had been inside the house, although the alleged events actually had taken place in the driveway or in Jones's car. The search of the house ultimately revealed cocaine and drug paraphernalia as well as the two firearms that served as the basis for Jones's convictions on counts 20 and 21 (possession of a sawed-off shotgun and felon-in-possession of a firearm).

The affidavit which supported the search warrant in this case contained the following relevant and supportive items of information: (1) a confidential informant had made at least six drug purchases, recorded by law enforcement officials, from Jones and a co-defendant; (2) on two occasions when the confidential informant was on the premises of Jones's residence while being monitored by audio surveillance, law enforcement officials heard a drug transaction; (3) in the 72 hours preceding the affidavit, the confidential informant was on the premises and observed Jones and a co-defendant in possession of a quantity of cocaine for the purpose of unlawful distribution.

The district court did not err by finding that such information provided probable cause to support the warrant. Knowledge of illegal drug activities, obtained by law enforcement officials through a confidential informant and independent surveillance, supports a district court's finding of probable cause to support the issuance of a warrant. See United States v. Sonagere, 30 F.3d 51, 53 (6th Cir.1994) (identifying two factors as critical to the determination that a confidential informant's tip provides a substantial basis for finding probable cause: (1) an explicit and detailed first-hand description of the wrongdoing, and (2) corroboration of the tip by independent investigation). There is no requirement of prior, actual observation of all the items listed in a search warrant. See United States v. Wright, 16 F.3d 1429, 1438 (6th Cir.1994) (upholding warrant despite fact that police only observed "innocent" activities); United States v. Lamon, 930 F.2d 1183, 1188-89 (7th Cir.1991) (upholding warrant despite absence of observation of drugs or paraphernalia in automobile to be searched).

In this case, the fact that the incidents referred to in the affidavits took place on the premises rather than inside the house does not invalidate the search of the house. The recited statements supporting the search warrant and the fact that "[i]n the case of drug dealers, evidence is likely to be found where the dealers live," Lamon, 930 F.2d at 1188 (quotation omitted), support a finding of probable cause to support the issuance of the warrant. See Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) ("A 'practical nontechnical' probability that incriminating evidence is involved is all that is required."). Accordingly, we affirm the district court on this issue.

B. Selective Prosecution Claim

Jones contends that the district court erred in denying his motion to dismiss the indictment because of alleged race-based selective prosecution. In the alternative, Jones argues that the district court erred by denying his motion to compel discovery. ³ The district court held a hearing and concluded that Jones had not established a...