U.S. v. Muhammad

• Citation: 928 F.2d 1461
• Decision Date: 04 April 1991
• Docket Number: No. 90-1242,90-1242
• Parties: 32 Fed. R. Evid. Serv. 1183 UNITED STATES of America, Plaintiff-Appellee, v. Khalil MUHAMMAD, a/k/a Jerry Jackson, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1461

928 F.2d 1461

32 Fed. R. Evid. Serv. 1183

UNITED STATES of America, Plaintiff-Appellee, v. Khalil MUHAMMAD, a/k/a Jerry Jackson, Defendant-Appellant.

No. 90-1242.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 25, 1990.

Decided April 4, 1991.

R. Jeffrey Wagner, Asst. U.S. Atty., Rodney Cubbie, Milwaukee, Wis., for plaintiff-appellee.

Marc L. Polland, Milwaukee, Wis., for defendant-appellant.

Before CUDAHY and FLAUM, Circuit Judges, and PELL, Senior Circuit Judge.

PELL, Senior Circuit Judge.

Defendant-Appellant, Khalil Muhammad, was convicted following a jury trial of conspiracy to possess with intent to distribute in excess of 500 grams of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 and one count of possession of ammunition by a felon in violation of 18 U.S.C. Secs. 922(g)(1) and 924(e)(1). Muhammad was acquitted on one count of using or carrying a firearm during and in relation to a drug-trafficking crime. The district court sentenced Muhammad under the Guidelines to two concurrent 324-month sentences. Following the imposition of sentence, Muhammad filed this appeal challenging his conviction.

I.

On the morning of January 25, 1989, several Milwaukee police officers were dispatched to North Teutonia Avenue in Milwaukee, Wisconsin in response to a report that shots had been fired. When the police officers arrived on the scene they saw Khalil Muhammad in the company of Anthony Edmonds. One of the officers approached Muhammad with his gun drawn as he had seen a silver object in Muhammad's hand and someone in the crowd had said that Muhammad had a weapon. The officer ordered Muhammad to stop, however, Muhammad fled on foot. Some of the officers at the scene followed Muhammad and, after a brief chase, he was apprehended. No weapon was found on Muhammad and, although one of the officers testified that he had seen Muhammad discard something during the chase, a weapon was never recovered.

As Muhammad fled on foot, Edmonds proceeded across Teutonia Avenue, entered a white Cadillac, and fled. Another officer at the scene pursued the vehicle and it was eventually stopped. The search of the vehicle incident to Edmonds' arrest, revealed a briefcase containing various papers bearing Muhammad's name and a .38 caliber Remington shell, two men's coats, and Thirty-four Thousand Three Hundred and Two Dollars ($34,302.00) in cash in the interior of the car. The police officers also found a loaded .45 caliber semi-automatic weapon in the trunk. In addition, the police officers recovered two beepers worn by Edmonds, one of which it was later determined had been rented in the name of Muhammad.

Later in the day on January 25, 1989, Agent Robert Hartman of the Drug Enforcement Agency applied for and received a search warrant for Muhammad's residence. Several federal agents thereafter executed the warrant, searching the residence located at 3885 North Sherman Boulevard in Milwaukee, Wisconsin. In the search, the agents found eight boxes of ammunition in the master bedroom closet and a scale. In addition, the agents found a drug ledger and other drug notes, reflecting drug activity, including phone numbers and street names of two of the individuals who were eventually charged as co-defendants with Muhammad.

At trial, Eugene Chaney Jr., who had been convicted of conspiracy to possess cocaine with intent to distribute and awaited sentencing, was called by the Government. He testified that beginning in late summer or early fall of 1988 he purchased cocaine from Muhammad. Chaney testified that he purchased a kilogram of cocaine from Muhammad on four occasions during the fall and winter of 1988. Thereafter, Muhammad introduced Chaney to his source, Michael Bond, and Chaney made arrangements to make his future cocaine purchases from Bond.

A second co-defendant, Donald Thurmond, also testified at trial against Muhammad. He, like Chaney, was cooperating with the Government for consideration in sentencing. Thurmond testified that he met Muhammad at his home on Sherman Boulevard in December 1988. At that time, Thurmond and a person named Carl Wesley went to Muhammad's home to purchase a kilogram of cocaine. Thurmond testified that he and Muhammad agreed on a price for the cocaine and it was delivered to him later that day. Thurmond further testified that again in March of 1989 he met Wesley at Wesley's residence to purchase a kilogram of cocaine. Thurmond stated that he and Wesley were unable to agree on a price. Wesley made a phone call and Muhammad came to Wesley's residence. Thurmond thereafter overheard Muhammad tell Wesley to give the cocaine to Thurmond at the price he was requesting and the deal was consummated.

Agent Hartman also testified at trial. He stated that he was the chief case agent in the investigation of Muhammad and that he was in charge of the evidence recovered from the search of Muhammad's residence. During his direct examination the scale was admitted in evidence. In addition, the Government qualified Agent Hartman as an expert and he was permitted to testify that based upon his experience as a drug investigator the papers that were recovered from Muhammad's residence were drug notes, reflecting Muhammad's drug-trafficking activities.

At the time of trial, Agent Hartman was assigned to a task force in Bolivia. He was scheduled to leave the country in a matter of hours following the commencement of his testimony. Defense counsel, therefore, agreed to attempt to consolidate his direct examination of Agent Hartman with cross-examination. Defense counsel questioned Agent Hartman for a little over an hour. At that point, the district court cut off examination of Agent Hartman, over the objection of the defendant, and Agent Hartman was excused. The trial proceeded and Muhammad was convicted on two counts and acquitted on a third count.

II.

Initially, Muhammad alleges that the district court erred in denying his motion to suppress evidence filed pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Muhammad filed his motion to suppress in the district court four days before the trial was scheduled to begin, well after the time limit set by the district court for filing pre-trial motions. In his motion, Muhammad alleged that Agent Hartman knowingly, or with reckless disregard for the truth, included false statements or made material omissions in his application for a search warrant. Muhammad's challenges were principally directed at the information obtained from confidential informant number one, Chaney, although Muhammad asserted that there was insufficient showing of the reliability of confidential informant number two and that the failure of Agent Hartman to explain what was meant by the phrase "a car associated with Muhammad" amounted to a material omission designed to mislead the Magistrate.

In considering Muhammad's Franks challenge, the district court initially determined that Muhammad had not made a sufficient preliminary showing to warrant a Franks hearing. The court also determined, however, that the principal focus of the challenge was to the information in the affidavit attributed to Chaney. The district court, therefore, excluded that information from consideration and determined that the remaining allegations in the affidavit were sufficient to support a finding of probable cause. Thus, the court denied the motion to suppress.

Where a search warrant is challenged on the basis of alleged falsities contained in the affidavit, the appropriate procedure for the district court to follow is to review the affidavit without the challenged portions to determine whether the unchallenged portion by itself establishes probable cause for the warrant to issue. See United States v. Johnston, 876 F.2d 589 592 (7th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989); United States v. Balistrieri, 779 F.2d 1191, 1206 (7th Cir.1985), cert. denied, 477 U.S. 908, 106 S.Ct. 3284, 91 L.Ed.2d 573 (1986). In this case, the district court followed that procedure. As such, our review is limited to the question of whether the district court erred in its determination that the allegations of the affidavit, without the information obtained from Chaney, were sufficient to establish probable cause.

Probable cause is a fluid concept. United States v. McNeese, 901 F.2d 585, 592 (7th Cir.1990). It is to be determined from a totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "An affidavit has made a proper showing of probable cause when it sets forth facts sufficient to induce a reasonably prudent person to believe that a search ... will uncover evidence of a crime." McNeese, 901 F.2d at 592. We independently review the sufficiency of the search warrant affidavit, "recognizing that doubtful cases should be resolved in favor of upholding the warrant." United States v. Malin, 908 F.2d 163, 165 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 534, 112 L.Ed.2d 544 (1990) (quoting United States v. Rambis, 686 F.2d 620, 622 (7th Cir.1982)).

The portion of the search warrant affidavit considered by the district court established that confidential informant number two was present at Muhammad's residence at 3885 North Sherman Boulevard within a week of the date of the application for the warrant, and had observed cocaine, a "chrome machinegun," and a scale. The affidavit also provided that the confidential informant was present at the residence on at least three other occasions in the three months prior to the issuance of the warrant. On each occasion, the informant saw cocaine, weapons, and a scale.

The affidavit also established that earlier in the day of January 25, 1989, Muhammad had been arrested after a brief foot chase. Prior to his arrest, Muhammad had been in the presence of Edmonds who fled from the scene in a Cadillac, which was also apprehended. A search of the Cadillac...