U.S. v. Smith, 94-4090

• Decision Date: 23 August 1995
• Docket Number: No. 94-4090,94-4090
• Citation: 63 F.3d 766
• Parties: 42 Fed. R. Evid. Serv. 1320 UNITED STATES of America, Appellee, v. Bobby SMITH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 766

63 F.3d 766

42 Fed. R. Evid. Serv. 1320

UNITED STATES of America, Appellee, v. Bobby SMITH, Appellant.

No. 94-4090.

United States Court of Appeals Eighth Circuit.

Submitted June 15, 1995.

Decided Aug. 23, 1995.

David R. Stickman, Omaha, NE, argued, for appellant.

Bruce Wellesley Gillan, Lincoln, NE, argued (Thomas J. Managhan as U.S. Atty. for Dist. of Nebraska, on the brief), for appellee.

Before LOKEN, Circuit Judge, LAY, Senior Circuit Judge, and VAN SICKLE, ^* Senior District Judge.

VAN SICKLE, Senior District Judge.

Bobby Smith (hereinafter "the Defendant") appeals from his convictions in the District Court ¹ on charges of conspiracy to distribute cocaine base, distribution of cocaine base, and possession of a cocaine base with the intent to distribute. Smith contends that (1) the District Court erred in its instructions to the jury; (2) his conviction and the forfeiture of his personal property in a separate civil proceeding violates the Double Jeopardy clause of the Fifth Amendment; (3) the search warrants which led to the discovery of evidence used against him at trial were not supported by probable cause; (4) the District Court abused its discretion in admitting various photographs and documents at the trial; and (5), with the suppression of the evidence obtained during the execution of the search warrant and the exclusion of the photographs and documents, the remaining evidence is insufficient to support the convictions. We affirm.

I. Facts

From February until April of 1992, the Defendant sold crack cocaine that was "fronted" to him by his co-defendant at trial, Frank Dean. On October 8, 1992, Mr. Arthur Smith (no relation to the Defendant), while working as an informant with the Drug Enforcement Administration (DEA), bought three ounces of crack from the Defendant with money provided by DEA. Later in October of 1992, near the end of the month, Arthur Smith, again working undercover for the DEA, met with the Defendant in order to pay the Defendant money Arthur Smith owed for the drugs delivered on October 8, 1992. Arthur Smith was wearing a recording device and tape-recorded his meeting with the Defendant. During this meeting, the Defendant told Arthur Smith that he and his uncle had been stopped by the Nebraska Highway Patrol for speeding the previous August while they had one kilogram of crack in the car.

On January 7, 1993, based on the evidence obtained through Arthur Smith, the DEA sought search warrants from Magistrate Judge Kathleen A. Jaudzemis to search 5526 North 50th Street (the Defendant's house) and 2563 Ellison Avenue (his girlfriend's house) in Omaha, Nebraska. DEA agent Michael Schwers used pre-printed application for search warrant forms in applying for these warrants. On each of the pre-printed forms, in the section on the form which reads: "The facts to support a finding of Probable Cause are as follows:" were typed the words: "SEE ATTACHED AFFIDAVIT." Attached to both of the pre-printed forms were ten page affidavits by Agent Schwers. Both of the pre-printed warrant applications were signed by Agent Schwers and Judge Jaudzemis. Additionally, the tenth page of the affidavit attached to the pre-printed application form for the search of 2563 Ellison Avenue was signed by both Agent Schwers and Judge Jaudzemis. However, on the tenth page of the affidavit attached to the pre-printed application form for the search of 5526 North 50th Street, the jurat following the signature of Agent Schwers was not signed by the Magistrate Judge.

Both search warrants were served on January 14, 1993. At the Defendant's house at 5526 North 50th Street, the DEA found a safe containing cocaine base, powder cocaine, a scale, and coffee grounds. They also recovered various receipts for merchandise purchased with cash, some in other people's names, and two photo albums containing photographs of the Defendant posing with cars and money. The search of the Defendant's girlfriend's house as 2563 Ellison Avenue produced only one item received into evidence at trial, a photograph of a green Jaguar sports car.

The Defendant's jury trial commenced on March 1, 1994. At trial, the materials recovered in the two searches, along with various other testimony and materials, were admitted into evidence. As noted above, the jury found the Defendant guilty of: (1) conspiracy to distribute cocaine base, (2) distribution of cocaine base, and (3) possession of a cocaine base with the intent to distribute.

II. Issues Not Properly Before This Court

At the outset it should be noted that the Court will not address the merits of two of the issues raised by the Defendant because they were not properly preserved for appeal. The Court will not address the Defendant's claims that the District Court erred in failing to instruct the jury that there could be no conspiracy with a government informer. A review of the transcript of the instruction conference reveals that the Defendant never asked for an instruction on the impossibility of conspiring with a governmental agent, and never objected to the failure of the District Court to give such an instruction. The Eighth Circuit has noted that:

[t]he failure to make a timely and specific objection to the instructions results in a waiver of objection on appeal [and] the district court can be reversed only for plain error ... [which affected a defendant's] substantial rights resulting in a miscarriage of justice.

United States v. Watson, 953 F.2d 406, 409 (8th Cir.1992) (citations omitted). While it is true that the Defendant could not be convicted of conspiring with DEA informant Arthur Smith, his relationship with Frank Dean (his co-defendant who was not a governmental informant) could support his conspiracy conviction on its own. This being the case, the Defendant cannot establish that the District Court's instructions were plainly erroneous and resulted in a miscarriage of justice.

Additionally, the Court will not address the merits of the Defendant's claim that obtaining a criminal conviction against him after a separate administrative forfeiture proceeding violates the Double Jeopardy clause of the Fifth Amendment. This issue was not raised to the District Court and cannot properly be considered on this appeal. ²

III. Sufficiency of the Search Warrants

The Defendant challenges the District Court's finding that the affidavits which supported the search warrants issued for 5526 North 50th Street and 2563 Ellison Avenue established probable cause and justified a denial of the Defendant's motion to suppress. An appellate court reviewing a District Court's denial of his motion to suppress must only ensure that the District Court had a substantial basis for concluding that probable cause existed. United States v. Sherrell, 979 F.2d 1315, 1317 (8th Cir.1992). The District Court's disposition of the motion to suppress will be upheld unless it is clearly erroneous. Id.

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court held that evidence obtained pursuant to a search warrant that was later found to be invalid, would not be excluded where it was demonstrated that the officer who executed the warrant did so with an objectively reasonable good faith reliance on the issuing judicial officer's determination of probable cause. The Defendant argues that this case falls within two of the exceptions to the "good faith" doctrine that were recognized in Leon. First, he claims that the affidavits supporting the warrants contained so few indicia of probable cause "as to render official belief in its existence entirely unreasonable." Leon, 468 U.S. at 923, 104 S.Ct. at 3421. Second, he claims the warrants themselves are so facially defective that no executing officer could reasonably presume them to be valid.

The Defendant's first argument is that reliance on the warrants was unreasonable because of Magistrate Judge Jaudzemis's failure to sign the jurat on the affidavit supporting the warrant for 5526 North 50th Street. The Defendant's position is that an affidavit not acknowledged by a judge is no affidavit at all, and therefore the warrant for 5526 North 50th Street was not supported by an affidavit containing sufficient indicia of probable cause.

There can be no contention that any clerical errors made in connection with the search warrant was the fault of Agent Schwers. Agent Schwers properly signed both the pre-printed application for a warrant to search 5526 North 50th Street and his affidavit supporting the application. It was Magistrate Judge Jaudzemis who, while properly signing the pre-printed application form, failed to acknowledge Agent Schwers' affidavit. The fact that the error was the fault of the judicial officer and not the police officer is important because of the Supreme Court's holding in Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). In Sheppard, the Court held:

In sum, the police conduct in this case clearly was objectively reasonable and largely error-free. An error of constitutional dimensions may have been committed with respect to the issuance of the warrant, but it was the judge, not the police officers, who made the critical mistake. "[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of...