U.S. v. Roberson, 04-3190.

• Decision Date: 10 March 2006
• Docket Number: No. 04-3675.,No. 04-3190.,04-3190.,04-3675.
• Citation: 439 F.3d 934
• Parties: UNITED STATES of America, Appellee, v. Robert Leon ROBERSON, Appellant. United States of America, Appellee, v. Donald Leonard Sturgis, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

439 F.3d 934

UNITED STATES of America, Appellee, v. Robert Leon ROBERSON, Appellant.

United States of America, Appellee, v. Donald Leonard Sturgis, Appellant.

No. 04-3190.

No. 04-3675.

United States Court of Appeals, Eighth Circuit.

Submitted: November 14, 2005.

Filed: March 10, 2006.

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Counsel who presented argument on behalf of the appellant, Robert Leon Roberson, is Larry E. Reed, Minneapolis, Minnesota.

Counsel who presented argument on behalf of the appellant, Donald Leonard Sturgis, is Steve L. Bergeson, Shakopee, Minnesota.

Counsel who presented argument on behalf of the appellee was AUSA Joseph T. Dixon, Minneapolis, Minnesota.

Before WOLLMAN, FAGG, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Robert Roberson and Donald Sturgis were convicted of conspiracy to distribute crack cocaine and of aiding and abetting possession, with intent to distribute, crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and 18 U.S.C. § 2. On appeal, they challenge the admissibility of evidence, the failure to disclose the identity of a confidential informant, the sufficiency of the evidence, and the sentences imposed.¹ We affirm in part and remand for resentencing.

I.

After receiving a tip from a confidential reliable informant that Roberson was dealing narcotics at 1526 Oliver Avenue North (the residence), the Minneapolis Police Department obtained a warrant on October 6, 2003, to search the premises, any occupants within, and any vehicles belonging to the occupants. During surveillance prior to executing the warrant, law enforcement officers observed both Roberson and Sturgis enter and leave the premises on a number of occasions. On October 7, 2003, when police were engaged in pre-execution surveillance, they observed Roberson leave the residence and drive to a nearby grocery store parking lot. Roberson did not enter the store, but rather parked his car next to a Buick in which a female was sitting, exited his car, looked around, and entered the Buick. Police observed Roberson sitting in the Buick for approximately 30 to 60 second before returning to his car. Believing that Roberson had just engaged in a narcotics transaction, officers arrested him as he left the parking lot. They found approximately $1,700 in cash in Roberson's wallet. He was also carrying a cellular phone and three separate sets of keys.

Upon returning to the residence, officers found Sturgis sitting in a nearby vehicle. They arrested him and found approximately $1,000 in cash in his car, as well as a cellular phone. Telephone records revealed several phone calls during the month before the arrests between the telephones seized from Roberson and Sturgis. Sturgis was also carrying a key that opened the door of the residence. Roberson was later determined to have a matching key, although it was never tested on the door.

After detaining Sturgis, the officers executed the warrant. The residence, which was leased to Sturgis, was a small single-floor, two-bedroom house containing no furniture. In the kitchen, officers found three scales and a small amount of cocaine. In the northeast bedroom, officers found mailings with Sturgis's name on them and a tan shirt with the name "Don" on it. This shirt was later identified by Sturgis's boss as Sturgis's work shirt. Hanging next to the shirt was a black leather jacket with a check stub for Sturgis in one pocket. In another pocket, officers found 89.6 grams of crack cocaine. In a closet in the northwest bedroom, officers found a box of photographs of Roberson, together with personal documents belonging to Roberson. Two jackets were hanging in the closet, one of which contained 378 grams of crack cocaine and 7.66 grams of cocaine. The other jacket contained 42 grams of crack cocaine.

On October 21, 2003, a federal grand jury indicted Roberson and Sturgis on the charges described above. In late 2003, the district court ruled on a series of pre-trial motions, refusing to suppress the evidence found in the search of the residence or in the arrests of Roberson and Sturgis. On January 30, 2004, Roberson moved to substitute counsel. The magistrate judge granted this motion and scheduled a second evidentiary hearing for February 23, 2004. On February 13, Roberson filed additional motions. On February 23, after reviewing the additional motions and the government's responsive papers, the magistrate judge determined that hearings were unnecessary and recommended that the additional motions be denied. The district court adopted this recommendation.

Following a jury trial, both Roberson and Sturgis were found guilty on both counts. They both then filed motions for acquittal and for a new trial, which the district court denied. Roberson was sentenced to 198 months' imprisonment and Sturgis to 360 months' imprisonment.

On appeal, Roberson argues that his initial stop, arrest, and detention were illegal, and that the search warrant was invalid. Sturgis also argues that his arrest and detention were illegal. Both argue that the evidence produced as a result of those searches and seizures should have been excluded at trial. Roberson also argues that his due process rights were violated when the magistrate judge failed to properly reconsider certain motions after Roberson changed defense counsel and that venue was improper. Sturgis argues that his due process rights were compromised by the failure to disclose the identity of the confidential reliable informant. Both argue that the district court erred by admitting evidence of prior bad acts. Finally, both Roberson and Sturgis argue that the evidence was insufficient to convict them and that the sentences imposed were improper in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

II.

We turn first to appellants' search and seizure claims. On appeal from a denial of a motion to suppress, we review for clear error the factual findings of the district court and we review de novo the legal determination that the Fourth Amendment was not violated. United States v. Alverez, 235 F.3d 1086, 1088 (8th Cir.2000). Probable cause existed if there was a fair probability that contraband or evidence of a crime would be found in a particular place. United States v. Rankin, 261 F.3d 735, 738-39 (8th Cir.2001).

First, Roberson argues that because the affidavit supporting the search warrant contains material misstatements and omissions, the warrant was invalid under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To prevail on his Franks claim, Roberson must show that a false statement was included in the affidavit knowingly and intentionally or with reckless disregard for its truth, and that the affidavit's remaining content is insufficient to establish probable cause. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir.2001). Roberson asserts that the affidavit falsely indicated that he was a resident of 1526 Oliver Avenue North and the owner of a gray Chevrolet Tahoe. Roberson also asserts that the affidavit, by an omission, falsely implies that he spoke to the informant within 72 hours, and that the affidavit overstates the number of times he was observed at the residence. Even if we assume that all of these statements or omissions are false and either recklessly or intentionally misleading, however, Roberson has failed to show that the truthful, nonmisleading content within the affidavit is insufficient to establish probable cause. The probable cause to issue the warrant was primarily based on the observation of drug trafficking activity both by a confidential reliable informant and by police officers. None of the alleged misstatements or omissions materially affected the probable cause finding, and thus the district court did not err in upholding the warrant.

Roberson next argues that his arrest was illegal and that the evidence seized as a result should have been suppressed. To find probable cause to make a warrantless arrest, the facts and circumstances within the officers' knowledge must be sufficient to justify a reasonably prudent person's belief that the suspect has committed or is committing an offense. United States v. Morgan, 997 F.2d 433, 435 (8th Cir.1993). In reviewing the law enforcement officers' determination of probable cause, we look at the totality of the circumstances and give due weight to the inferences that can be drawn from the officers' experience. United States v. Wilson, 964 F.2d 807, 809 (8th Cir.1992). Here, the officers were conducting surveillance, knowing that they had a valid warrant to search this residence based on probable cause that drug trafficking activity was being carried out, when Roberson left the house and drove to a nearby grocery store parking lot, where the officers witnessed him engage in a 30-to 60-second meeting with a woman in another car. That meeting, viewed in the totality of the circumstances and in light of the officers' experiences, was sufficient to justify a reasonably prudent person's belief that an illegal drug transaction had just occurred. The district court thus properly denied Roberson's motion to suppress the evidence seized as a result of that arrest.

Sturgis too argues that his arrest and the subsequent search of his automobile were illegal and that the evidence obtained as a result should therefore have been suppressed. Officers may lawfully detain the occupant of a house near that house while the premises are being searched pursuant to a valid search warrant. United States v. Hogan, 25 F.3d 690, 693 (8th Cir.1994). A preliminary search of the car's interior was valid as a search incident to Sturgis's arrest. See Morgan, 997 F.2d at 436. While executing the search warrant, officers found contraband in Sturgis's residence, giving them probable cause to believe that additional evidence would be found in the automobile in which Sturgis had been sitting. This...