925 F2d 1471 United States v. T Giese

925 F.2d 1471

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
James T. GIESE, Defendant-Appellant.

No. 90-30036.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1991.*
Decided Feb. 19, 1991.

Before WIGGINS, BRUNETTI, and THOMAS G. NELSON, Circuit Judges.

1

MEMORANDUM**

2

James T. Giese ("Giese") appeals his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1).

I.

3

On October 4, 1984, Giese was convicted of second degree robbery by a state court in Oregon. On July 8, 1988, sheriff's deputies of Klickitat County, Washington, executed a search warrant for Giese's residence, and found a quantity of marijuana, two firearms, and personal papers belonging to Giese.

4

Giese was indicted on February 9, 1989, for a violation of 18 U.S.C. Sec. 922(g)(1).1 On May 12, 1989, at a pretrial hearing, the district court denied Giese's motion to suppress evidence and to prohibit the admission of evidence of Giese's involvement in the growing and distribution of marijuana. Giese was found guilty by a trial jury on October 18, 1989, and was sentenced to fourteen months imprisonment on January 4, 1990. Judgment and sentence were entered on January 9, 1990. Giese timely appealed his conviction.

II.

5

In reviewing the issuance of a search warrant, we must determine whether the magistrate had a substantial basis for concluding that the affidavit in support of the warrant established probable cause. United States v. Rodriguez, 869 F.2d 479, 484 (9th Cir.1989). This standard of review is "less probing than de novo review and shows deference to the issuing magistrate's determination." United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir.1986). The issue of whether or not a Franks hearing is required is a mixed issue of fact and law which we review de novo. United States v. Whitworth, 856 F.2d 1268, 1280 (9th Cir.1988), cert. denied, 483 U.S. 1084 (1989).

6

The basis for Giese's motion was an affidavit from Giese's attorney and a supporting memorandum. In the affidavit, Giese's attorney alleged that, based on his own investigation:

7

the Sheriff's deputies failed to provide the Judge with all of the pertinent information available to them.... A comparison of [the Sheriff's department file materials secured by the attorney] and the affidavit in support of the search warrant demonstrate [sic] sufficient discrepancies to warrant further inquiry and demonstrate [sic] that there are further investigative materials which probably exist and which the defendant should be allowed to receive.

8

Giese has presented this court with a laundry list of alleged omissions and deficiencies in the affidavit in support of the search warrant, and argues that these deficiencies precluded a finding of probable cause. He further alleges that the affiant knew or should have known about these deficiencies and intentionally or recklessly submitted the affidavit in disregard of them.

9

The validity of a search warrant is determined by reviewing the facts in the affidavit in a common sense and realistic manner. United States v. Crozier, 777 F.2d 1376, 1380 (9th Cir.1985).

10

In denying Giese's motion to suppress, the District Court noted that its review was limited to determining whether, under the totality of the circumstances before the issuing magistrate, there was probable cause to issue the search warrant. The court further noted that the affiant was not required to disclose to the issuing magistrate all the information he possessed.

The district court stated:

11

The Court has examined the affidavit of the officer ... that was before the Court which issued the search warrant. The officer recites ... his own professional experience. He recites also his sensory observations when he had occasion to be on the premises, and then recites in detail the information supplied to him by the informant, and the facts which corroborate the information given to him by the informant. If he had additional information that would have added support to the affidavit, the Court is aware of no law that requires him to disclose it. The test under Gates is whether from a totality of the circumstances, the issuing Magistrate had probable cause, and it seems to the Court that clearly he did.

12

The affidavit supporting the request for the search warrant contained sufficient facts to give the magistrate a substantial basis on which to issue the warrant, when viewed in the totality of the circumstances.2 The district court did not err in denying the motion to suppress the evidence obtained pursuant to that search warrant.

13

Under Franks v. Delaware, 438 U.S. 154 (1978), a defendant may challenge a facially valid search warrant when it contains "deliberate or reckless omissions of fact that tend to mislead." United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927 (1988).

14

[A] defendant is entitled to a Franks hearing upon a "substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading."

15

United States v. Whitworth, 856 F.2d 1268, 1280 (9th Cir.1988) (quoting United States v. Stanert, 762 F.2d 775, 781 (9th Cir.1985)).3

16

Giese's motion did not contain any specific argument as to what portion or portions of the affidavit were intentionally or recklessly false. Without some allegation in this regard, it was appropriate for the district court to refuse to conduct an evidentiary hearing.

III.

17

Giese also argues that the Government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide defense counsel with all materials in the possession of the Government which contained potentially exculpatory material.4 We review challenges to convictions based on Brady violations de novo. United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir.1988).

18

Under Brady, the government must provide, upon request, any evidence favorable to the defendant if the evidence is material either to guilt or innocence. Gordon, 844 F.2d at 1403. Reversal is only required if the evidence is material:

19

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.

20

United States v. Bagley, 473 U.S. 667, 682 (1985).

21

Giese has not made the requisite showing of reasonable probability that production of any requested documents would have affected the outcome of the trial. Further, Giese was provided the opportunity to review the documents during the course of the trial. Brady does not necessarily require that possibly exculpatory evidence be provided before trial. Gordon, 844 F.2d at 1403 (defense counsel had "substantial opportunity to use the documents and to cure any prejudice caused by the delayed disclosure" when allowed to look at them during trial, six months after material requested in pretrial motion). There has been no Brady violation.

IV.

22

The district court's decisions balancing the probative value of evidence against its prejudicial effect are reviewed for an abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir.1989).

23

Giese made a pretrial motion to exclude evidence of marijuana and drug paraphernalia seized pursuant to the search warrant on the grounds that the prejudicial nature of the evidence outweighed its probative value. See Fed.R.Evid. 403.

24

Evidence that Giese grew and sold marijuana was admitted for two purposes: (1) to show that it was more likely than not that Giese possessed the firearm because he was a drug trafficker; and (2) to impeach Giese. The evidence was admissible on either of these grounds.

25

"As long as the court balances probative value and prejudicial effect, the determination of whether evidence should be admitted under [Rule 403] is largely a matter of discretion with the judge." United States v. Sangrey, 586 F.2d 1312, 1314 (9th Cir.1978).

26

A district court need not "explicitly state that the probative value of [the evidence] was not substantially outweighed by the danger of unfair prejudice," or "engage in a "mechanical recitation of Rule 403's formula on the record as a prerequisite to admitting evidence...." Sangrey, 586 F.2d at 1315. In Sangrey, the trial court judge was aware of the requirements of Rule 403, and the issue of prejudice had been argued to the court by counsel. On this basis, we determined that the required weighing process had occurred. Id; see also United States v. Morris, 827 F.2d 1348, 1350 (9th Cir.1987) (court engaged in adequate balancing by reviewing motion that raised issue and hearing counsel's argument); United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir.1987) (court implicitly balanced prejudice and probative value by considering counsel's argument that Rule 403 requires balancing).

27

In this case, the issue of balancing was raised in Giese's motion to exclude and was addressed by the government in its response. At the hearing on Giese's pretrial motions, his counsel again addressed the prejudice to Giese of the admission of the evidence of marijuana, and the district judge stated on the record that he had engaged in a balancing process.5 Based on the foregoing, "it appears from the record as a whole that the trial judge adequately weighed the probative value and prejudicial effect of proffered evidence before its admission." Sangrey, 586 F.2d at 1315.6

V.

28

The admission of evidence over a hearsay objection is reviewed for an abuse of discretion. United States v. Kirk, 844 F.2d 660, 663 (9th Cir.), cert. denied, 488 U.S. 890 (1988).

29

A necessary element of the crime with which Giese was charged is that the firearm must have at one time been shipped or transported in interstate commerce. See 18 U.S.C. Sec. 922(g)(1). Giese argues that this element was proved by hearsay evidence.

30

Special Agent Michael R. Sprenger ("Sprenger") of the Federal Bureau of Alcohol, Tobacco, and Firearms (the "Bureau") testified that he conducted a trace on the weapon in question to determine the date of manufacture and the original purchaser. Giese objected to this testimony on the ground that Sprenger's opinion was based on the research of another agent who actually did the trace work.7

31

The district court recognized Sprenger as an expert witness in overruling Giese's hearsay objection.8 Because Giese never objected to Sprenger as an expert, this court accepts the district court's determination that Sprenger is an expert in the field of firearm manufacture.

32

An expert may rely on hearsay in formulating his opinion, "if of the type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Fed.R.Evid. 703; see also United States v. Beltran-Rios, 878 F.2d 1208, 1213 n. 3 (9th Cir.1989). In addition to basing his opinion on the trace run on the gun, Sprenger testified that his opinion was based on reference materials. Both of these bases for the opinion testimony are "of the type reasonably relied upon by experts" in the field of firearm investigation. Id.

33

The district court did not abuse its discretion in allowing Sprenger to testify that in his opinion, based on the trace of the firearm performed by another agent and on his reliance on various reference materials, that the firearm had been transported in interstate commerce.

34

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

1

18 U.S.C. Sec. 922 reads in relevant part:

It shall be unlawful for any person

Who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which had been shipped or transported in interstate or foreign commerce.

2

In support of his motion to suppress, Giese argues that the facts in the affidavit were stale and that a "no knock" warrant requires greater scrutiny. Neither argument has merit

Giese argues that the facts in the affidavit were stale, because the last reported instance of drug trafficking occurred more than thirty days prior to the application for the warrant, and that information came from the Government's informant, whose credibility Giese challenges.

The timeliness of a search warrant depends on whether it is reasonable to believe that the items to be seized are still on the property; whether the illegal activity is of a continuing nature is relevant to this determination. See United States v. Gann, 732 F.2d 714, 722 (9th Cir.), cert. denied, 469 U.S. 1034 (1984). We have previously held that probable cause in a drug trafficking case may continue to exist for months after the last reported instance of suspect activity. United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986).

The affidavit in support of the search warrant alleged that Giese was involved in a ongoing marijuana grow operation. The highly sophisticated nature of the operation and the four-month delivery schedule made it possible for the magistrate to infer that it was more probable than not that the marijuana would continue to be on the premises for weeks or even months after the last reported instance of drug-related activity at Giese's residence. Thus, it was not error to authorize a search despite the fact that the incidents in the subscribing officer's affidavit were approximately thirty days old.

Giese also argues that greater scrutiny should be applied to a request for a "no knock" warrant. Giese contends that greater scrutiny is required for a "no knock" warrant in order to be consistent with 18 U.S.C. Sec. 3109. ("The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance....") Giese cites no legal authority to support this argument.

The affidavit in support of the search warrant alleged that Giese and his brother, who also resided on the premises, had a high potential for violent behavior. The affidavit recited several incidents involving the brandishing of weapons, including one incident where Giese allegedly fired a shot into the air and threatened to kill an individual. The issuing court was also provided with information on the criminal history of Giese and his brother, which involved violent behavior and attempts to elude peace officers. Finally, the informant had stated that the Giese brothers had very violent tempers and possessed weapons within the residence.

Based on the aforementioned facts, the issuing court had reason to believe that Giese would be armed and perhaps dangerous when the search warrant was executed; therefore, the "no knock" warrant was justified on the basis of exigent circumstances. See United States v. Ramirez, 770 F.2d 1458, 1460 (9th Cir.1985) (compliance with Sec. 3109 excused by exigent circumstances).

3

Entitlement to a Franks hearing is determined by a five-part test: (1) the defendant must make specific allegations indicating which portions of the warrant are claimed to be false; (2) there must be a contention of deliberate falsehood or reckless disregard for the truth; (3) the defendant must make a detailed offer of proof; (4) the offer of proof must challenge the veracity of the affiant and not of the informant; (5) the challenged statements must have been necessary to the finding of probable cause. United States v. Dicesare, 765 F.2d 890, 894-95 (9th Cir.1985)

4

Giese complains that the government failed to provide him with "all the materials in the possession or control of the investigating officers," as well as the informant's rap sheet and Giese's personal papers which were seized pursuant to the search warrant

5

It's the Court's view that the possession of weapons would be far more important to somebody with an extensive and commercial grow operation than someone who might just have a couple of plants around for their personal use.... The Court will concede, Counsel, that [evidence of the marijuana is] prejudicial.... So the question is whether or not it's appropriately prejudicial; and this Court feels that for those reasons that it is

6

The district court's failure to give a limiting instruction to the jury on the use of the evidence in question is not reversible error, as the defendant apparently never requested such an instruction. See Sangrey, 586 F.2d at 1315

7

The trace was performed by a Bureau employee in Washington, D.C. Sprenger testified that the employee of the National Tracing Center contacted the manufacturer and retailer of the gun. The employee then called Sprenger and relayed the information to him. Sprenger also testified that this trace procedure is routinely relied upon by the Bureau, and, in his experience, was 100% reliable

8

The following transpired during Sprenger's testimony at trial:

MR. SHOGREN (for the United States): Based upon your training and experience, would you tell the jurors what you determined with regard to [the gun's] origin and manufacture?

MR. SCHWAB (for the defense): I'm going to object to that, Your Honor. Approach the bench on that?

THE COURT: Well, Counsel, if you want to object to it, you might state the basis of your objection without--

MR. SCHWAB: Hearsay. This witness, I believe, is about to give an answer that relies on hearsay. He did a trace, he said, and that involves other information from other sources.

THE COURT: Yes, the law has long accepted opinions from experts and recognized that to become an expert in any field you must necessarily rely upon hearsay; you must read books; you must study reports; you must talk to people who are teachers and experts in the field, and that way accumulate the knowledge which permits you to become an expert. So the Court is going to overrule your objection and permit him to testify.