Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

MEMORANDUM^** 

The appellant Charles Junior Hinsley (Hinsley) appeals his conviction following a conditional plea of guilty to charges of conspiracy to manufacture and possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846 (1988), and manufacturing, possession with intent to distribute, and distribution of a controlled substance, in violation of 21 U.S.C. § 841(a) (1) (1988).

Hinsley contends the district court erred in finding that he failed to establish that a search warrant affidavit contained intentionally or recklessly false statements after a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). In Franks, the Supreme Court held that an otherwise valid search warrant can be rendered invalid if the defendant shows that an affiant deliberately, or with reckless disregard for the truth, included false statements in his application for a warrant. Id. at 156. Pursuant to Franks, a hearing was held to determine whether false statements were deliberately or recklessly included in the affidavit. See id.; United States v. Dozier, 844 F.2d 701, 704 (9th Cir.), cert. denied, 488 U.S. 927 (1988).

We review a trial court's factual finding as to whether statements in a search warrant affidavit are false under the clearly erroneous standard. Id. at 705.

Hinsley argues that the affiant, Special Agent Orten, intentionally misstated the time interval from when a codefendant's vehicle was seen leaving a storage facility with chemicals used in the manufacture of methamphetamines to when that vehicle was seen empty at Hinsley's residence, 18373 Arrow Highway, in Fontana, California.¹ 

The district court was concerned about the government's failure to explain how the affiant arrived at Hinsley's address with no evidence to show that he knew where Hinsley lived, particularly where the special agents admitted they lost sight of the vehicle they were following. Nonetheless, with conflicting statements before it, the court concluded that the affiant's statements were more credible. Although the court termed it a "close call," it held that under the circumstances it was bound to presume the validity of the search warrant affidavit. United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir. 1987) (citing Franks, 438 U.S. at 171-72, that there is a presumption of validity); United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986). The court found that Hinsley had failed to prove by a preponderance of the evidence that there was a knowing and intentional falsehood or a reckless disregard for the truth. See Dozier, 844 F.2d at 705. The court stated: "there's been no evidence in this hearing ... to exclude common sense probabilities or possibilities that would be consistent [with the affiant's] testimony that he got there in 10 minutes." Excerpt of Record, at 93.

On appeal, Hinsley invites us to consider certain evidence that he claims the trial court failed to consider properly that has bearing on the credibility of the affiant and himself. Questions of credibility are generally immune from appellate review. United States v. Castillo, 866 F.2d 1071, 1078 (9th Cir. 1988). There is nothing in this record that demonstrates to us that the district court's finding is clearly erroneous that Special Agent Orten was a credible witness, and that Hinsley's witness was not.

AFFIRMED.