U.S. v. Wiley

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: Ripple
• Citation: U.S. v. Wiley, 475 F.3d 908 (7th Cir. 2007)
• Decision Date: 06 February 2007
• Docket Number: No. 05-2633.,No. 05-2596.,05-2596.,05-2633.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Claude WILEY, Jr. and Tatu M. Brown, Defendants-Appellants.

475 F.3d 908

UNITED STATES of America, Plaintiff-Appellee, v. Claude WILEY, Jr. and Tatu M. Brown, Defendants-Appellants.

No. 05-2596.

No. 05-2633.

United States Court of Appeals, Seventh Circuit.

Argued November 6, 2006.

Decided February 6, 2007.

Bradley Blackington (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

C. Samuel Rael (argued), Atlanta, GA, for Defendant-Appellant, Claude Wiley, Jr.

Jack F. Crawford (argued), Crawford & Devane, Indianapolis, IN, for Defendant-Appellant, Tatu M. Brown.

Before RIPPLE, WILLIAMS and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

Claude Wiley, Jr. and Tatu M. Brown were charged in a single indictment with various counts relating to a drug conspiracy. Mr. Brown subsequently entered a conditional guilty plea to a single count of conspiracy and the district court sentenced him to 188 months' imprisonment. Mr. Wiley proceeded to trial and was convicted of a conspiracy charge and of certain distribution charges. The district court sentenced him to 395 months' imprisonment.

Mr. Brown and Mr. Wiley timely filed these direct appeals. Mr. Brown contends that evidence obtained from a search of his home was inadmissible because the affidavit in support of the warrant did not establish probable cause. He further submits that the good faith exception to the warrant requirement is inapplicable. Mr. Wiley contends that the jury was instructed improperly as to the weight to give the testimony of Government informants who received a benefit in exchange for their testimony. For the reasons set forth in the following opinion, we affirm the convictions of both defendants.

I BACKGROUND

Mr. Brown and Mr. Wiley were charged in a single, four-count superseding indictment with several offenses under 21 U.S.C. § 841(a)(1). Both defendants faced a charge of conspiracy to possess with intent to distribute and conspiracy to distribute cocaine hydrochloride ("powder cocaine") and cocaine base ("crack") as well as a charge of crack distribution. Mr. Wiley also was charged with distribution of powder cocaine. The indictment alleged that Mr. Wiley obtained powder cocaine in Chicago and that, by himself and with the assistance of others, he transported the cocaine to Terre Haute, Indiana, where he and Mr. Brown both distributed cocaine powder and also manufactured and distributed crack.

A. Facts and Proceedings Involving Mr. Brown

1. The Search Warrant

On January 16, 2003, Drug Enforcement Administration ("DEA") Special Agent Joanna Zoltay executed an eight-page affidavit detailing evidence linking Mr. Brown to drug trafficking. This affidavit was intended to accompany an application for a search warrant for Mr. Brown's residence at 2320 2nd Avenue, Terre Haute, Indiana. In that affidavit, Agent Zoltay first recounted facts about a controlled buy of cocaine in which Mr. Brown was involved. Specifically, on September 24, 2002, a confidential source ("CS"), whose information previously had resulted in over ten convictions of narcotics traffickers, contacted the DEA and stated that the CS could purchase cocaine from a man named Donte Britt.¹ The DEA prepared the CS for a controlled buy from Britt later that same afternoon, including outfitting him with a listening device. The CS then traveled to a motel parking lot. Britt met the CS at the CS' vehicle, then walked to a green Ford Expedition parked across the street. The CS called out over the wire that he observed Mr. Brown in the Expedition. A license plate check revealed that the Expedition was registered to Annalee Monts, Mr. Brown's girlfriend, at the 2nd Avenue residence. Britt returned to the CS' vehicle from the Expedition carrying 28.9 grams of cocaine which the CS purchased and handed over to the police. Agent Zoltay further stated that it was consistent with her experience in narcotics investigations that "upper level narcotics traffickers do not participate in transactions with persons they do not know, but will deliver to a middleman such as Brit[t], who then conducts the transaction." R.59, Ex.C at 2.

Agent Zoltay also recounted statements of two additional sources who had identified Mr. Brown as a drug trafficker. First, a cooperating individual ("CI-1"), arrested on crack distribution charges, had informed the police that he had trafficked cocaine for a period of several years and that Mr. Brown was his primary drug source during that period. He also stated that Mr. Brown supplied other distributors, including Britt and Seagrams Poston. CI-1 told agents that he had witnessed Mr. Brown, on an unspecified date, cooking powder cocaine into crack in the 2nd Avenue residence. CI-1 further stated that he had accompanied Mr. Brown when Mr. Brown delivered two ounces of crack to a man named Derrick Hatfield in late October 2002; Agent Zoltay herself had participated in surveillance of Hatfield on October 29, 2002, when Hatfield delivered two ounces of crack to a DEA CS. A second cooperating individual ("CI-2"), arrested on cocaine trafficking charges, told DEA agents that he had purchased high-quality marijuana from Mr. Brown.

Finally, Agent Zoltay's affidavit provided certain details from independent DEA investigations connecting the 2nd Avenue residence both to Mr. Brown and to drug trafficking activity. She stated that, on January 14, 2003, DEA agents conducting surveillance on the 2nd Avenue residence observed Mr. Brown exit the house to assist Monts in carrying groceries from the green Expedition, which had been seen at the controlled buy from Britt in September 2002. Agents also observed Poston, who had a prior conviction for cocaine possession, enter the residence with a backpack and leave several hours later without it. On January 15, 2003, agents observed Mr. Brown exit a car, unlock the front door of the 2nd Avenue residence, enter, then later exit, lock the door and return to the car. On the same date, Mr. Brown was stopped while driving the green Expedition registered to Monts in connection with an investigation relating to a stolen Expedition. Also on January 15, 2003, a DEA agent confirmed with a postal inspector that Mr. Brown received mail at the 2nd Avenue residence.

In addition to the specific evidence linking Mr. Brown to drug trafficking activity and to the 2nd Avenue residence, Agent Zoltay provided additional background information drawn from her own experience, including the likelihood that certain types of evidence relating to drug trafficking activity would be found in the residence of a suspected drug trafficker.

On January 16, 2003, a magistrate judge issued a search warrant for the 2nd Avenue home. The officers executed the warrant later that same day. The inventory from the search included numerous firearms and ammunition, a small quantity of marijuana and a marijuana pipe, bullet proof vests, a police scanner and Illinois license plates. R.59, Ex.B.

2. Mr. Brown's Motion to Suppress and the Plea Agreement

Before his trial, Mr. Brown moved to suppress the evidence obtained in the search. He challenged the sufficiency of the affidavit to sustain the magistrate judge's probable cause determination. The district court denied the motion and admitted the evidence. In its opinion, the district court first addressed the reliability of the informants. The court identified CI-1 as the key informant and determined that, with respect to this source, sufficient reliability had been established through corroboration by police investigation and by the statements of the other informants. First, the information from CS, whose reliability is established by the statement in the affidavit that he had assisted in investigations leading to over ten convictions, connected Mr. Brown to Britt, as had CI-1. CI-1's statements regarding deals to Poston were corroborated, the court found, however slightly, by the observations of the agents at the 2nd Avenue residence, who saw Poston enter with the backpack and leave without it. With respect to Mr. Brown's sale of cocaine to Hatfield, a controlled buy by a DEA source from Hatfield corresponded to the date and drug quantity identified by CI-1. The district court concluded that, taken together, these statements tended to establish as reliable the information that CI-1 had purchased cocaine from Mr. Brown and had observed Mr. Brown cooking cocaine in the searched residence. Moreover, reasoned the court, the statements of CI-1 should be credited because they were offered against CI-1's penal interest. The court thus concluded that the DEA had corroborated sufficiently CI-1's statements through investigation. It further determined that, based on the totality of circumstances, the magistrate judge had a substantial basis for concluding that the affidavit contained probable cause to support a finding that Mr. Brown was a drug trafficker.

The court also found that the reliability of CS was supported not only by the agent's direct statement in the affidavit, but also because the CS' statements placing Mr. Brown in the Expedition at the time of the controlled buy from Britt in 2002 were corroborated by an independent investigation connecting Mr. Brown and the Expedition.

Turning to the question of nexus between the alleged criminal activity and the premises, the district court concluded that the requisite connection was established by the nature of the criminal activity at issue and the probability that evidence of drug dealing may be found where drug dealers live. R.71 at 13 (citing United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991)). More specifically, the court concluded that the affidavit sufficiently linked Mr. Brown himself to the 2nd Avenue home. The most critical evidence, in the court's view, was Mr. Brown's possession of a key to the house, suggesting some element of dominion and control over the location. In addition, he was observed carrying in groceries, and he apparently had received mail at the residence. Refusing to...