United States v. McKenzie-Gude

• Decision Date: 16 December 2011
• Docket Number: No. 10–4119.,10–4119.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Collin McKENZIE–GUDE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

671 F.3d 452

UNITED STATES of America, Plaintiff–Appellee,

v.Collin McKENZIE–GUDE, Defendant–Appellant.

No. 10–4119.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 27, 2011.Decided: Dec. 16, 2011.

ARGUED: Gary Eugene Bair, Bennett & Bair, LLC, Greenbelt, Maryland, for Appellant. Arun G. Rao, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Bryan E. Foreman, Assistant United States Attorney, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge KING and Judge DUNCAN joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Collin McKenzie–Gude pled guilty under a conditional plea agreement to knowing possession of a firearm not registered to him, in violation of 26 U.S.C. § 5861(d). In doing so, he reserved his right to challenge the district court's refusal to suppress evidence seized from his home pursuant to a warrant or to grant a hearing to determine the veracity of the affidavit that provided the basis for that warrant. McKenzie–Gude appeals those rulings and also challenges his below-Guidelines sentence of sixty-one months incarceration. For the reasons set forth within, we affirm the district court in all respects.

I.

On July 23, 2008, Ludmila Yevsukov went to a police station in Montgomery County, Maryland to report that her nephew, Patrick Yevsukov, had told her that McKenzie–Gude brought an AK–47 style assault rifle to the Yevsukov residence on July 21, 2008. Ms. Yevsukov further informed the police that the rifle belonged to McKenzie–Gude's father, Joseph Gude. A police officer then contacted Joseph Gude, who confirmed he had purchased an AK–47 rifle. Four days later, on July 27, Ms. Yevsukov provided additional information in a letter she addressed to the police department. In the letter, she asserted that McKenzie–Gude was 18 years of age, lived at 6312 Rockhurst Road in Bethesda, Maryland (the “Rockhurst Road residence”), and had just graduated from St. John's College High School in Washington, D.C. She further advised the police that her nephew, Patrick, was an intern with the Montgomery County Police Department.

In her letter, Ms. Yevsukov asserted that McKenzie–Gude “constantly discuss [ed] weapons and explosives with Patrick” and had brought “dangerous chemicals” to the Yevsukov residence. Ms. Yevsukov reported that she had found and removed from Patrick's bedroom these chemicals and “safety data sheets” describing the chemicals. She attached to her letter the data sheets and a confidential St. John's College faculty list containing home addresses and phone numbers that she asserted McKenzie–Gude and Patrick had improperly obtained. She also attached to the letter fifteen pages of blank Montgomery County Police Department letterhead, which Ms. Yevsukov believed Patrick had obtained for McKenzie–Gude to “purchase restricted firearms,” because she had found the letterhead with a photocopy of instructions for opening a gun safe.

On July 29, 2008, McKenzie–Gude drove Patrick Yevsukov to the local police station where Montgomery County police officers interviewed both of them. The officers obtained a signed statement from Patrick in which he stated that “to [his] knowledge” McKenzie–Gude never brought a gun to the Yevsukov residence. After McKenzie–Gude requested an attorney, the officers released him without obtaining any statement from him.

Later that day, Montgomery County Detective Edward Zacharek and Montgomery County Fire Marshal Jeffrey Ewart completed an application for a warrant to search the Rockhurst Road residence. The application describes the officers' experience, including that Zacharek, a 12–year veteran with the police department, had extensive experience investigating “firearms related crimes” and executing firearms-related search warrants, and that Ewart, a firefighter for nine years and fire marshal for six months, was “currently assigned to the arson and explosive unit” and had “training and experience with identification of explosive and destructive devices.” The application describes with particularity McKenzie–Gude's suspected criminal activity and the items sought; in the space provided for the place “to be searched,” the application identifies the Rockhurst Road residence and describes its appearance.

The affidavit provides the following details from the police investigation:

On 07/23/08, Ludmila Yevsukov responded to the Gaithersburg City Police station to report that her nephew Patrick Yevsukov and his friend Colin ¹ McKenzie–Gude brought an AK–47 style assault rifle to her apartment on 07/21/08. She also advised that Patrick Yevsukov is a intern [sic] with the Montgomery County Police. Yevsukov is a current student at St. John's College High School in Washington, D.C., and McKenzie–Gude just graduated from St. Johns College High School.

She also advised that Colin McKenzie–Gude has been constantly discussing weapons and explosives with her nephew Patrick Yevsukov. Colin McKenzie–Gude also brought chemicals to the house with computer material safety data sheets detailing the chemicals. The chemicals were Acetone, Nitric Acid, Hydrochloric Acid, Sulfuric Acid, Methyl Ethyl Ketone, and Nitromethane. These chemicals are fuels and oxidizers that can be used to manufacture explosive devices.

The affidavit goes on to describe the faculty list, police letterhead, and gun safe instructions that Ms. Yevsukov had attached to her letter. Further, the affidavit explains that “the AK–47 style assault rifle is registered to a Joe Gude with the Maryland State Police,” and that “Colin McKenzie–Gude is 18 years of age, and is prohibited from owning or possessing any firearms due to his age.” Although the affiants averred that they “believe[d] that evidence of the above mentioned crimes [was] contained in the aforementioned premises,” i.e., the Rockhurst Road residence, they failed to state that McKenzie–Gude or Joseph Gude lived at that address.

A state court judge issued a warrant to search the Rockhurst Road residence that same day, and at approximately noon, members of the Montgomery County Police Department and the Montgomery County Fire Marshal's Office executed the search. The officers seized various items from McKenzie–Gude's bedroom, including several weapons, assorted gun parts, two bullet-proof vests, hundreds of rounds of ammunition, chemicals and other materials that could be used to make explosive devices, and instructions for making such devices. Detective Zacharek described the seized items on the search warrant inventory that he prepared and provided to McKenzie–Gude's mother.

In a separate search of Patrick Yevsukov's former residence, Montgomery County police officers also recovered “post-blast evidence” of five pipe bomb detonations. Among this debris, a “latent fingerprint of McKenzie–Gude's was recovered from the adhesive side of a piece of tape that was attached to some wires and a battery.”

Four months later, in November 2008, a federal grand jury indicted McKenzie–Gude for knowing possession of a firearm, “specifically, a destructive device, which was not registered to him,” in violation of 26 U.S.C. § 5861(d). McKenzie–Gude moved to suppress the evidence seized from the Rockhurst Road residence, claiming the search warrant affidavit was constitutionally defective because it failed to link him to the Rockhurst Road residence. McKenzie–Gude further contended that the officers had made material misrepresentations and omissions in the affidavit, entitling him to a hearing to determine its veracity.

At a motions hearing in July 2009, the district court received as exhibits the police incident report describing the police investigation of McKenzie–Gude and Ms. Yevsukov's July 27, 2008 letter. Upon consideration of this evidence, the court refused to suppress the seized evidence, finding that the officers executing the warrant, whom the district court characterized (without objection from the defendant) as the affiants, relied in good faith on the warrant because, “apart from the affidavit, it's clear where Mr. [McKenzie-]Gude lives. That is indicated in the report that's made to the police officer.” The court also denied McKenzie–Gude's motion for a hearing, concluding that the affiants had not made material misrepresentations or omissions in the search warrant application. McKenzie–Gude then entered a conditional guilty plea, reserving his right to appeal these suppression rulings.

At McKenzie–Gude's sentencing hearing, his friend, Patrick Yevsukov, testified that he and McKenzie–Gude detonated pipe bombs together on approximately five occasions and talked daily about explosive devices and firearms. Patrick also testified about a plan that he and McKenzie–Gude had formulated, but never actually executed, to purchase firearms with obliterated serial numbers from a fellow high school student. During the planned purchase, they would carry McKenzie–Gude's weapons for protection in case “anything went wrong.”

The district court also considered the testimony of an expert on explosive devices, FBI Agent Richard Stryker, who had examined the evidence seized from McKenzie–Gude's bedroom. Agent Stryker testified that McKenzie–Gude had possessed enough chemicals to construct at least ninety explosive devices and sixteen “initiators,” which are necessary to ignite the devices. He also opined that based on his “training and experience,” McKenzie–Gude “most likely” had possessed this amount and combination of chemicals in order “to make explosive materials.”

The district court then calculated McKenzie–Gude's Sentencing Guidelines range. The court denied McKenzie–Gude's request for a two-level downward adjustment for acceptance of responsibility, finding that the record evidence belied his statement to the probation...