U.S. v. Young Buffalo

• Decision Date: 11 January 1979
• Docket Number: No. 78-1079,78-1079
• Citation: 591 F.2d 506
• Parties: 4 Fed. R. Evid. Serv. 145 UNITED STATES of America, Plaintiff-Appellee, v. Pete YOUNG BUFFALO, a/k/a Peter Brent Zauner, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 506

591 F.2d 506

4 Fed. R. Evid. Serv. 145

UNITED STATES of America, Plaintiff-Appellee, v. Pete YOUNG BUFFALO, a/k/a Peter Brent Zauner, Defendant-Appellant.

No. 78-1079.

United States Court of Appeals Ninth Circuit.

Jan. 11, 1979.

As Amended on Denial of Rehearing and Rehearing En Banc

March 12, 1979.

Susan F. Mandiberg (argued), Rives, Bonyhadi & Smith, Portland, Or., for defendant-appellant.

Jack C. Wong, Asst. U. S. Atty. (argued), Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT and GOODWIN, Circuit Judges, and JAMESON, District Judge. ^*

EUGENE A. WRIGHT, Circuit Judge:

Young Buffalo ¹ was convicted by a jury on a fifteen count indictment ² charging him with seven bank robberies (18 U.S.C. § 2113(a)), seven counts of using a firearm in the commission of a felony (18 U.S.C. § 924(a)), and one count of being a felon in possession of a firearm (18 U.S.C. App. § 1202(a)(1)).

He seeks reversal of his conviction because much of the evidence used to convict him was the product of a search authorized by a warrant issued on the strength of an affidavit containing material misstatements by the affiant. He also contends that, because FBI agents destroyed notes of interviews with witnesses to the first bank robbery, those witnesses should have been barred from testifying. Finally, he argues that admission of lay opinion on his resemblance to a photograph of the bank robber constitutes reversible error.

We are not persuaded that the court erred on any issue raised by appellant and we affirm the conviction.

FACTS

Between December 7, 1976, and April 21, 1977, seven bank robberies occurred in or around Portland, Oregon. In each the perpetrator wore a ski mask or a nylon stocking over his face, coveralls or other loose fitting clothing, and in most cases, gloves. One branch bank was robbed twice and a witness to the two robberies believed that one person had committed both.

After the first robbery, the robber fled on foot. An FBI agent gave chase in the direction the robber had taken. He found appellant in a car in a nearby residential area and questioned him. Appellant stated he had seen someone matching the robber's description running up the street. ³ He gave the agent his correct name and address for future use.

Witnesses to the several robberies described the culprit as a stocky white male, but the details of their descriptions varied. FBI special agent Michael Sanders prepared an affidavit for a warrant to search appellant's apartment, compiling a description of the robber from the statements of many witnesses. When the warrant was issued, agents searched the apartment, and found a bag containing green coveralls, a green and yellow ski mask, a pillowcase, gloves and a gun. Witnesses testified that these items resembled ones used by the robber. Agents also found cartridges in appellant's apartment.

THE AFFIDAVIT FOR SEARCH WARRANT

Appellant's main contention is that, in composing the affidavit for the search warrant, agent Sanders intentionally made material misstatements calculated to deceive the magistrate into believing that there was probable cause to issue the warrant.

The affidavit described appellant as "an Indian male, born July 2, 1949, 5'7 , 200 lbs., stocky build, dark brown or black hair, dark or olive complexion . . .." According to appellant, Sanders repeatedly failed to include the full range of heights and weights assigned to the robber by witnesses and added descriptive material not supplied by them in order to make their descriptions conform to that of appellant.

With respect to the first robbery Sanders stated: "Witnesses . . . described the robber as a white or Indian male . . . 5'8 to 5'10 . . . ." In fact, no witness described the robber as Indian ^3a and the range of heights given was 5'10 to 5'11 . Appellant cites other examples of reporting incorrect height and weight descriptions, adding information not supplied by witnesses, and omitting descriptive information which did not fit the physical characteristics of appellant.

Appellant asserts that, in addition to these intentional misrepresentations, the affidavit contained reckless misrepresentations of material facts. Sanders included information that appellant owned a Honda motorcycle similar to one used by the robber to flee the scene of one robbery and that, about the time of another robbery, appellant had rented a white over maroon 1976 AMC Pacer similar to one used by the robber. According to appellant, routine checking by Sanders would have revealed that appellant's motorcycle had been destroyed before the robberies and that his rented Pacer was actually maroon over white.

The district judge denied appellant's pretrial motion to suppress the fruits of the apartment search. He said that an affidavit for search warrant must be invalidated if it contains any misrepresentation of a material fact or "any intentional misrepresentation by a Government agent whether material or not." He found that the inaccuracies in Sanders' affidavit were not intentional but were the result of Sanders' attempt to synthesize a large volume of descriptive information. ⁴ He expressly found that the inaccuracies were not material because even without them there was enough information to support the issuance of the warrant. Appellant contests both findings.

In denying the motion, the trial judge relied upon United States v. Damitz, 495 F.2d 50 (9th Cir. 1974), and United States v. Thomas, 489 F.2d 664 (5th Cir. 1973), Cert. denied, 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975). After the case was tried, the Supreme Court decided Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In Franks, the Court ruled that criminal defendants could challenge the validity of search warrants based on affidavits containing statements that are deliberately false or made with reckless disregard for the truth.

The test for determining whether a defendant is entitled to a hearing to examine the content of the warrant affidavit is two-pronged. First, he or she must make a "substantial preliminary showing," including allegations of "deliberate falsehood or of reckless disregard for the truth," supported by an offer of proof.

Second, the court must determine if the challenged material is necessary to a finding of probable cause. If these two requirements are met, the defendant is entitled to a hearing. 98 S.Ct. at 2684-85. If, at the hearing, the defendant establishes perjury or reckless disregard and excision of the challenged matter leaves the affidavit with insufficient content to establish probable cause, the warrant must be voided.

The Franks test supplants the precedent relied upon below. In Thomas, The court held that "there would be a sufficient basis for invalidating a search warrant if the error was intentional, even though immaterial to the showing of probable cause." 489 F.2d at 671. ⁵ Franks establishes that even deliberate falsehoods must be material before they can invalidate a warrant.

At the pretrial hearing on the motion to suppress, the government moved initially that appellant not be granted an evidentiary hearing on the question of the validity of the affidavit until he had made "an initial showing of falsehood." The court denied the motion and granted the hearing.

Because appellant had a full evidentiary hearing in the district court on whether the misstatements in the affidavit were material and made with intent to deceive, our task on appeal is to determine whether the court applied the proper legal standard, in light of Franks, and whether its findings of fact were clearly erroneous. Cf. United States v. Goldberg, 582 F.2d 483, 486 (9th Cir. 1978).

Deliberate Falsehoods and Reckless Misstatements.

Appellant contends that Sanders' affidavit contains both deliberate falsehoods and statements made with reckless disregard for the truth.

The allegedly reckless statements concern appellant's ownership of a motorcycle and the description of the car he rented prior to one robbery. Appellant asserts that, although Sanders knew the motorcycle had been in an accident before the robbery, he undertook no further investigation which would have revealed that it had been destroyed. ⁶ Likewise, additional checking with the rental agency would have revealed that the rental car was maroon over white, not the reverse. ⁷

Even if we were to find that the information possessed by Sanders was enough to create a duty of further inquiry, these assertions at best raise the possibility of negligence on his part. The Court in Franks made it clear that "(a)llegations of negligence or innocent mistake are insufficient" to meet the first leg of the test to determine whether a hearing is required. 98 S.Ct. at 2685.

This circuit followed Franks in deciding that innocent misrepresentations by the affiant, even if material, would not vitiate a search warrant. United States v. Botero, 589 F.2d 430 (9th Cir. 1978). United States v. Smith, 588 F.2d 737, 740 (9th Cir. 1978). Cf. United States v. Hole, 564 F.2d 298 (9th Cir. 1977). Sanders' misstatements do not reach the level of recklessness necessary to establish a constitutional violation.

The question whether the affidavit contains deliberate falsehoods is more troublesome. In this case, as the trial judge noted, Sanders was required to sift through a large body of information to synthesize a description of the robber. The process necessarily involved omission and an element of distortion, but that fact alone does not establish either deliberate falsehood or reckless disregard for the truth.

In Franks, the Court did not spell out what was meant by "deliberate falsehood" and "reckless disregard for the truth." It did explain, however, what it meant by a truthful factual showing of probable cause.

This does not mean "truthful" in the sense that every fact recited in the warrant affidavit is necessarily...