U.S. v. Rowley, 91-3308

• Decision Date: 23 September 1992
• Docket Number: No. 91-3308,91-3308
• Citation: 975 F.2d 1357
• Parties: UNITED STATES of America, Appellee, v. Donald Edward ROWLEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1357

975 F.2d 1357

UNITED STATES of America, Appellee, v. Donald Edward ROWLEY, Appellant.

No. 91-3308.

United States Court of Appeals Eighth Circuit.

Submitted April 15, 1992.

Decided Sept. 23, 1992.

Alfredo Parrish, Des Moines, Iowa, argued, for appellant.

Steven M. Colloton, Asst. U.S. Atty., Cedar Rapids, Iowa, argued, for appellee.

Before JOHN R. GIBSON, Circuit Judge, PECK, ^* Senior Circuit Judge, and BEAM, Circuit Judge.

BEAM, Circuit Judge.

Donald Edward Rowley appeals his two-count conviction and sentence. He was convicted on one count of possession, manufacture, and intent to distribute 50 or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and of aiding and abetting the above in violation of 18 U.S.C. § 2. He was also convicted of one count of conspiracy to: a) manufacture 50 or more marijuana plants; and, b) possess 50 or more marijuana plants with the intent to manufacture, in violation of 21 U.S.C. § 846.

Rowley raises a number of issues on appeal and disputes the district court's application of the sentencing guidelines. For reversal, Rowley argues, among other things, that: a) a clerical omission invalidates the initial search warrant; b) his proffer statements to the government were involuntary, and their admission for impeachment purposes was not harmless error; c) a juror's misconduct required a mistrial ruling; and d) he was not allowed to make his defense by the exclusion of two pretrial services witnesses.

Rowley disputes the district court's enhancement of his sentence for the possession of firearms during the offense, pursuant to U.S.S.G. § 2D1.1(b)(1), and for being an organizer, leader, or manager of the offense pursuant to U.S.S.G. § 3B1.1(c). He also argues that he has consistently accepted responsibility for his offense and should have received a reduction under U.S.S.G. § 3E1.1.

We affirm the convictions but remand for resentencing.

I. BACKGROUND

Rowley is a 40-year-old farmer and unemployed school custodian, with a wife and two teenage children. In September of 1990, a deputy sheriff received a tip about marijuana cultivation and entered Rowley's Iowa farm through open fields. He discovered small dispersed patches of cultivated marijuana. After further investigation, a search warrant was procured from a local magistrate. The warrant clearly specified the land and buildings to be searched, but the magistrate neglected to fill in a blank on the standardized form indicating whether the search was of a person, premises, or a specific thing.

On September 12, numerous officers searched Rowley's farm and outbuildings finding 42 cultivated marijuana plants, 34 stubs of cultivated marijuana plants, and numerous craters. Marijuana, marijuana seed, grow lamps, and other items of cultivation were found in outbuildings, in a padlocked basement room, and in Rowley's bedroom. A number of unloaded weapons, including two automatic pistols and an automatic rifle, were found in Rowley's bedroom.

Rowley was at a chiropractor's appointment when the search began but arrived home while it was under way. He was given a Miranda warning, and at once admitted to being the marijuana "farmer." Federal Agent Weir, who participated in the search, testified Rowley then stated that he had recently destroyed marijuana plants in anticipation of the raid. Weir testified that he and Rowley mutually agreed on a figure of 75 to a 100 plants destroyed.

Both Rowley and his wife were charged with controlled substance offenses, firearms offenses, conspiracy, and engaging in conduct that subjected their property to forfeiture. On September 13, the United States sent Rowley a proffer letter. ¹ Rowley entered into proffer discussions with the United States on September 18. He signed an agreement which stipulated that any information he gave during the discussions would not be used against him, except in a perjury or false statements prosecution or for impeachment in any proceeding. Appellant's Appendix I, p. 15. The discussions bore no fruit. That is, Rowley did not implicate any identifiable others in controlled substance offenses, and there was no plea bargain.

The case proceeded to trial, where Rowley's wife was acquitted on all counts and he was convicted on all but the firearms charge. At trial, over defense counsel's continuing objection, statements Rowley made during the proffer discussions were used to impeach his credibility. The defense also objected, during a side-bar discussion, to the government's admitted use of information from the proffer discussions to focus the subject matter areas of its cross-examination. Trial Transcript, p. 1235. By allowing the record to stand and those lines of questioning to continue, the district court implicitly overruled the defendant's objection.

During the same side-bar, allegations that a juror was not obeying the district court's instructions not to discuss the case came to light. The court and counsel interviewed the jurors, striking the offending juror from the panel. The juror in question had conversed with witnesses in the hallways, reporting to the other jurors that some witnesses had been waiting for two days to testify, commented on his acquaintance with several witnesses and the defendant, and mentioned his familiarity with Rowley's farm. He may also have commented to one juror that one witness was not too bright.

The other jurors all testified that they were not negatively influenced by the wayward juror, and could still be impartial. The district court declined to declare a mistrial, being satisfied that the remaining jurors were not prejudiced and would be impartial.

At sentencing, Rowley received two two-point enhancements, one for the presence of firearms, U.S.S.G. § 2D1.1(b)(1), and one for being the organizer and leader of the criminal activity, U.S.S.G. § 3B1.1(c). The enhancements brought his offense level up from 26 to 30 under the guidelines. He was sentenced to 97 months (eight years and one month) in prison, the minimum term for a first time offender with a level 30 offense.

II. DISCUSSION

A. The Search Warrant

The search warrant, Appellant's Appendix [A.App.] I, p. 14, sets out in meticulous detail the items to be sought and where the search is to be made. It commands the search, narratively, of the Rowleys' residence, buildings, garages, outbuildings, open fields, and any vehicles found on the property. It not only gives the Rowleys' address, but locates their farm by section number and township.

The magistrate's failure to fill in a standardized blank as to whether the search was of a person, premises, or a thing is immaterial because the magistrate had already clearly indicated the location of the search and that only certain premises and things were to be searched. ² The Fourth Amendment requires that search warrants particularly describe the place or thing to be searched, Milliman v. Minnesota, 774 F.2d 247, 249 (8th Cir.1985), United States v. Clark, 531 F.2d 928, 931 (8th Cir.1976), it does not require redundancy.

This warrant easily passes the test for the constitutional adequacy of the description of what is to be searched. United States v. Ellison, 793 F.2d 942, 947 (8th Cir.1986), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986). It enabled "the executing officer to locate and identify the premises with reasonable effort" and there was no "reasonable probability that another premise might be mistakenly searched." Id.

Our decision in United States v. Curry, 911 F.2d 72 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991), invalidating a warrant where a space for the address had not been filled in, turned on the lack of an address anywhere in the warrant, either actually or through incorporation.

Since we hold that the warrant itself was constitutionally sufficient, we do not address whether the "good faith" exception in United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984), applies. We do note, however, that it took us several minutes of earnest examination to discover the clerical omission about which the defendant complains.

B. The Proffer

Rowley contends that impeaching him with information provided under limited use immunity during the proffer violated his Fifth Amendment privilege against compelled self-incriminating evidence. The government promised that any information Rowley provided would not be used against him, except for perjury or false statement prosecutions or for impeachment purposes. A.App. I, p. 15.

Although Rowley's statements were given in the hope of leniency, they were not given with the promise of leniency, and thus were not involuntary on that score. Rachlin v. United States, 723 F.2d 1373, 1377-78 (8th Cir.1983). Their use for impeachment therefore comports with the Supreme Court's rule that voluntary statements or illegally seized evidence, even if otherwise inadmissible, may be used to impeach a testifying defendant. See Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990); James v. Illinois, 493 U.S. 307, 110 S.Ct. 648, 107 L.Ed.2d 676 (1990); United States v. Havens, 446 U.S. 620, 626-27, 100 S.Ct. 1912, 1916-17, 64 L.Ed.2d 559 (1980); Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971).

Inducing a statement by the promise of immunity does not in itself violate the Fifth Amendment's prohibition. In Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972), the Supreme Court held a defendant's compelled testimony did not violate the Fifth Amendment provided the testimony was immunized from use to the extent the Fifth Amendment would protect a defendant from the use of involuntary statements. In New Jersey v. Portash, 440 U.S. 450, 459, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501 (1979), the Court elaborated that compelled immunized statements, unlike "statements taken in violation of Miranda, may not be...