Unpublished Disposition, 911 F.2d 739 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 911 F.2d 739 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.George James ROADS, Defendant-Appellant.

No. 89-10521.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 14, 1990.* Decided Aug. 16, 1990.As Amended on Denial of Rehearing Nov. 14, 1990.

Before GOODWIN, Chief Judge, and SNEED and NOONAN, Circuit Judges.


MEMORANDUM** 

George James Roads appeals his conviction for possession with intent to distribute 819 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) (1988). He raises a number of objections to the district court's rulings on various pretrial motions, the court's application of the Sentencing Guidelines, and the constitutionality of the Guidelines themselves. We affirm.

FACTS AND PROCEEDINGS BELOW

Investigator Tam Hodgson launched an investigation of Roads in August 1986, when he learned the following: that Roads had a prior arrest for drugs; that Roads was receiving a large number of calls on a digital pager, activity associated with the drug trade; and that Roads was allegedly distributing drugs with Dennis Frailey from a business located at 5630 District Boulevard, Bakersfield, California. For reasons not made clear from the record, Hodgson's investigation lay dormant for over two years.

In September 1988, Hodgson received information from three confidential sources regarding Roads' involvement in narcotics dealing. These informants provided information based only on their own personal knowledge. Each one told Hodgson of Roads' methamphetamine trafficking and his use of a business known as Sho-N-Glo at 5630 District Boulevard for drug sales. The informants also provided information regarding appellant's travels to Long Beach and Portland for drug purchases. Hodgson corroborated certain information, such as addresses, provided by the informants. He also received an investigative report from the Portland Police Department indicating Roads' involvement in narcotics trafficking in Portland.

On October 18, 1989, Hodgson applied for a warrant to search the premises of Sho-N-Glo for evidence of methamphetamine. In the affidavit supporting the warrant, Hodgson detailed his investigatory experience and the salient facts he had gleaned about Roads. Hodgson swore in the affidavit that the tipsters acted separately, without knowledge of each other's existence.

Based on this information, the Municipal Court Judge determined that there was probable cause to issue a search warrant for 5630 District Boulevard, the location of Sho-N-Glo, which was owned and operated by codefendant Dennis Frailey. Kern County law enforcement officials executed this warrant on October 18, 1988. After they entered Sho-N-Glo, the officers observed Roads, who was sitting at a desk. Directly in front of Roads on the desk lay 318 grams of methamphetamine and $2,020 in cash. A loaded firearm was found in a desk drawer where Roads sat. The officers seized various drug paraphernalia and weapons.

The officers arrested Roads and advised him of his Miranda rights. In a taped interview conducted the following day, October 19, 1988, appellant acknowledged that he had understood those rights and agreed to waive them. He also stated that he had directed the officers to his car and told them where to look for narcotics. The officers found 501 grams of methamphetamine, $22,900 in currency, and a loaded gun. Roads admitted that this contraband belonged to him, as did the drugs and money found at his desk on the initial entrance by the officers. Roads also confessed that he typically sold approximately one to two pounds of methamphetamine per week.

On November 10, 1988, Roads and Frailey were indicted for conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) & 846 (Count One), and possession of approximately 819 grams of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a) (1) (Count Two). In the months following the indictment, Roads filed a series of motions, including: (1) a motion for disclosure of the identity of the three confidential informants; (2) a request for an in camera hearing to determine the identity of the informants (which had been filed by Frailey but which Roads joined); (3) a motion for a Franks hearing on the veracity of the affidavit; (4) a motion to suppress four statements he had provided to law enforcement officers on involuntariness grounds; and (5) a motion to dismiss the indictment for failure to comply with the Speedy Trial Act. The district court denied each motion. On June 30, 1989, Roads entered a conditional plea agreement with the United States pursuant to which he agreed to plead guilty to the count charging him with possession with intent to distribute. Roads reserved the right to appeal on the motions denied by the district court. The court sentenced Roads on September 29, 1989, to 88 months imprisonment. He filed a notice of appeal on October 10, 1989, that was timely in accordance with Fed. R. App. P. 26(a).

JURISDICTION

The court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 (1988).

DISCUSSION

We consider eight issues in this appeal: (1) whether the court erred in denying appellant's motion for disclosure of the three confidential informants' identities; (2) whether the court erred in denying appellant's motion to suppress his confession; (3) whether appellant had standing to challenge the search of Sho-N-Glo; (4) whether the court correctly denied appellant's motions for a Franks hearing; (5) whether the court erred in denying his motion for an in camera hearing; (6) whether the court erred in denying appellant's motion to dismiss on Speedy Trial Act grounds; (7) whether the court properly sentenced Roads under the Sentencing Guidelines; and (8) whether the Sentencing Guidelines violate due process by not requiring proof of facts that underlie the sentence under a "beyond reasonable doubt."

A. Denial of the Motion for Disclosure of the Identities of the Three Confidential Informants.

We review the district court's decision denying appellant's motion for disclosure for abuse of discretion. United States v. Johnson, 886 F.2d 1120, 1122 (9th Cir. 1989), cert. denied, 110 S. Ct. 1830 (1990). Roads claims that disclosure is justified if the affidavit supporting issuance of the warrant failed to provide a statement of the facts attributable to an informant. Without these facts, he asserts, he is prevented thus from challenging the veracity and sufficiency of the tipster's information.

Although disclosure of the informant's identity is not required, United States v. Fixen, 780 F.2d 1434, 1439 (9th Cir. 1986), the district court may order it if information is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." United States v. Roviaro, 353 U.S. 53, 60-61 (1957). The burden is on defendant "to demonstrate a need for the information." Johnson, 886 F.2d at 1122.

Roads' only reason for seeking disclosure, however, is to challenge the probable cause determination. This purpose is not an adequate ground from which to obtain disclosure. See, e.g., Fixen, 780 F.2d at 1439. Moreover, even if appellant met the burden of showing need for disclosure, the district court concluded that disclosure would be detrimental to the informants' well-being. This decision was well within the court's discretion. See Fixen, 780 F.2d at 1439.

B. The Motion to Suppress Appellant's Confession.

This court reviews de novo the district court's determination of the voluntariness of a defendant's statements to law enforcement officers, United States v. Wilson, 838 F.2d 1081, 1086 (9th Cir. 1988), although the findings of fact with respect to this determination are reviewed for clear error, United States v. Lewis, 833 F.2d 1380, 1384 (9th Cir. 1987); United States v. Crespo de Llano, 838 F.2d 1006, 1015 n. 2 (9th Cir. 1987).

Appellant notes that the district court found that the law enforcement officers "overreach [ed] in their attempt to find Roads' assets." This finding, appellant alleges, conflicts with the court's denial of his motion to suppress. He claims that the overreaching had a direct relationship to the voluntariness of the admissions or confessions.

In our view, the court made this statement not in the context of the voluntariness of the confession, but in regard to appellant's motion to dismiss for outrageous government conduct, which the court denied. The record does not support appellant's contention that the district court concluded that the officers had "overreached" with respect to obtaining statements from Roads.

It is, however, true that the district court did not make a specific finding of voluntariness, but this omission is not fatal if the record supports the result. See United States v. Twine, 853 F.2d 676, 681 (9th Cir. 1988). To be voluntary, a confession must be freely given. Blackburn v. Alabama, 361 U.S. 199, 205 (1960). We look at the "totality of the circumstances" to determine whether the government obtained the statement through coercion. United States v. Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988).

The record amply supports a finding that defendant's statements were made voluntarily. See E.R. 9, exhibit 1 at 4 (Investigator Hodgson's report) and exhibit 2 at 1-2 (Roads' statements). The transcript contains no indication of coercion.1  The district court thus correctly denied appellant's motion to suppress.

C. Appellant's Standing to Challenge the Search of Sho-N-Glo.

We next consider the government's contention that Roads lacks standing to challenge the search of Sho-N-Glo because he did not own and operate the business. The government claims that although appellant was present on the premises with the accoutrements of crime, he had an insufficient interest in the premises to invoke the Fourth Amendment's protections. Although appellee pressed this argument in the district court, that court denied appellant's motion to suppress on the merits without ruling on the standing issue. Appellee is correct, however, that Roads must show "standing," or in Fourth Amendment parlance, a constitutional privacy interest in the place searched. See, e.g., United States v. Robertson, 833 F.2d 777, 779-80 (9th Cir. 1987). A defendant's standing to challenge a search is reviewed de novo. United States v. Kuespert, 773 F.2d 1066, 1067 (9th Cir. 1985).

The "standing" question we consider here is in essence "whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect." Rakas v. Illinois, 439 U.S. 128, 140 (1978). See also Martinez v. Nygaard, 831 F.2d 822, 825 (9th Cir. 1987). Roads conceded that he had no ownership or possessory interest in Sho-N-Glo. He was merely present in the building at the time of the search. Presence, however, is insufficient to create standing. See, e.g., United States v. Grandstaff, 813 F.2d 1353, 1357 (9th Cir.) (per curiam), cert. denied, 484 U.S. 837 (1987). Because Roads has no protectible Fourth Amendment privacy interest in Sho-N-Glo, the district court's decision was correct on the alternate ground that appellant lacked standing to challenge the search.2 

D. The Denial of Appellant's Motion for a Franks Hearing.

In his reply brief, appellant does not make clear whether the searches for which he does have standing to challenge also come within the ambit of his request for a Franks hearing. If they do, we must reach the merits of the district court's ruling denying him such a hearing. We review such decisions de novo. United States v. Elliott, 893 F.2d 220, 222 (9th Cir. 1990); nited States v. Dozier, 844 F.2d 701, 704 (9th Cir.), cert. denied, 109 U.S. 312 (1988).

The district court shall conduct a hearing upon a substantial preliminary showing that false statements were knowingly and intentionally made in the warrant affidavit. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). A defendant must meet five requirements before being entitled to a Franks hearing:

(1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; and (5) the challenged statements must be necessary to find probable cause.

United States v. Dicesare, 765 F.2d 890, 894-95, amended by 777 F.2d 543 (9th Cir. 1985) (quoted by United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986)).3 

In our view, appellant incorrectly focuses on the veracity of the informant's, and not on affiant's, statements. See Perdomo, 800 F.2d at 921. Hodgson represented in the affidavit that Roads had pleaded guilty to a drug offense on April 17, 1986 and that Roads was still on probation at the time the search warrant was executed. The government concedes that the part of this statement relating to Roads' probationary status was incorrect; however, it argues that appellant has made no showing that the statement was deliberately or recklessly made.4 

A second, purportedly false statement Hodgson made was that he had seen Roads' black Corvette parked near Sho-N-Glo. Appellant claims that this statement could not be true because he had sold the car prior to the date the warrant was issued. Hodgson later stated that he had seen a black Corvette identical to Roads', but that he had not seen the license plate to confirm whether it in fact belonged to appellant. As appellee suggests, even if Hodgson's actual knowledge regarding the Corvette was incorrect, his belief that it belonged to Roads was reasonable, and his conclusion drawn in good faith. See Franks, 438 U.S. at 155 (requiring a "substantial preliminary showing" by defendant that "a false statement knowingly and intentionally, with reckless disregard for the truth" was made by the affiant).

We also find persuasive appellee's contention that the district court properly denied appellant's motion because Roads has failed to "show that the affidavit purged of those falsities and supplemented by the omissions would not be sufficient to support a finding of probable cause." United States v. Stanert, 762 F.2d 775, 782, amended by 769 F.2d 1410 (9th Cir. 1985). The district court found that the challenged statements in Investigator Hodgson's affidavit were unnecessary to the probable cause determination because the remaining facts stated in the affidavit supported a finding of probable cause.

We look to the totality of circumstances in determining whether probable cause existed to justify issuance of the warrant. Massachusetts v. Upton, 466 U.S. 727, 732 (1984) (per curiam); Illinois v. Gates, 462 U.S. 213, 238 (1983). Even without the allegedly false statements, under the "totality of circumstances" Hodgson's affidavit provided a substantial basis for the magistrate to make a sensible decision that a reasonable probability existed that contraband would be found at a certain location. United States v. Espinoza, 827 F.2d 604, 610 (9th Cir. 1987).

The " ' [i]interlocking tips from different confidential informants enhanced the credibility of each' " when the information is viewed under the circumstances. United States v. Yarbrough, 852 F.2d 1522, 1533 (9th Cir. 1988) (quoting United States v. Landis, 726 F.2d 540, 543 (9th Cir.), cert. denied, 467 U.S. 1230 (1984)), cert. denied, 109 S. Ct. 171 (1988). Three different persons provided information suggesting that Roads was a narcotics trafficker. Moreover, Roads' own past arrest record supported this information. And finally, Hodgson independently corroborated certain of the information supplied by the confidential sources. The combination of the information garnered by Hodgson himself and that provided by confidential sources thus more than adequately supports a finding of probable cause.

E. Appellant's Motion for an In Camera Hearing.

The district court also denied appellant's request to hold an in camera hearing, rejecting his contention that he had made a sufficient showing that the affidavit contained incorrect information supplied by a confidential informant. See United States v. Stanert, 762 F.2d 775, 782, amended by 769 F.2d 1410 (9th Cir. 1985). To make out a valid claim for an in camera hearing, a defendant must demonstrate that (1) he has uncovered the informant's probable identity or that the informant does not exist; and (2) that the information provided by the alleged informant was misstated in the warrant affidavit. Id. at 782-83; see also United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983).5 

If the defendant makes the preliminary showing, then the district court should hold an ex parte, in camera hearing to determine whether defendant correctly identified the informant. Stanert, 762 F.2d at 782-83. Upon a showing that the defendant was correct, the court shall extend the hearing for the purpose of determining if the defendant was entitled to a Franks hearing under the traditional test. Id. at 783.

Appellee argues that appellant failed to make the requisite showing to require a district court to conduct an in camera hearing. First, the facts gleaned from an investigation of Edwin Smith did not reveal whether or not he was an informant. According to defendant's investigator, Smith only knew one fact that was similar to that contained in the search warrant affidavit. This situation is thus unlike Kiser, in which an alleged informant provided a lengthy declaration that contained numerous factual similarities--and a number of discrepancies--with the information contained in the search warrant. The Kiser court concluded that the defendant had made the requisite showing to require an in camera hearing. 716 F.2d at 1271.

The other alleged informant was Rene Reid, who, according to appellant's investigator, provided five pieces of information that were similar to the Hodgson affidavit. The similarities include the amount of time the informants knew Roads, the fact that Roads had moved to Bakersfield from Portland, and Roads' involvement in the sale of methamphetamines. Again, the situation here is unlike the facts of Kiser, upon which appellant so heavily relies. Significantly, Kiser also required that the investigator's affidavit contain "information materially different from that attributed to the informant." Kiser, 716 F.2d at 1272. Because all of the statements attributed to Reid and Smith are completely consistent with the information contained in the Hodgson affidavit, appellant has failed to make a substantial preliminary showing entitling him to an in camera hearing.

F. Denial of Motion to Dismiss on Speedy Trial Act Grounds.

We review de novo appellant's claim that the district court erred by denying his request to dismiss the indictment for violation of the Speedy Trial Act. 18 U.S.C. § 3161 et seq. (1988). See United States v. Wirsing, 867 F.2d 1227, 1229 (9th Cir. 1989). Our task is made more difficult by the inability of the parties to agree on the proper approach to applying the Act and by the parties' own inconsistency in so doing. For example, appellant initially argues that the only error in the district court's calculation was in its failure to include the time from June 2, 1989 to June 20, 1989. In his reply brief, appellant then challenges virtually the entire method of calculating time includable under the Speedy Trial Act. For its part, appellee represented in the district court that 59 days of countable time had elapsed; in this court appellee contends that only 56 days had elapsed.

We begin, therefore, with the date on which the counting should begin. The district court ruled that the proper starting date was the day of the arraignment, November 18, 1988. This ruling was erroneous, although as we will demonstrate, the error was harmless. The proper starting date should have been the date on which the indictment was filed, November 10, 1988, because Roads had already appeared before a magistrate on the date of his arrest. See, e.g., Wirsing, 867 F.2d at 1229; United States v. Haiges, 688 F.2d 1273, 1274 (9th Cir. 1982). The government was thus required to bring Roads to trial within 70 days of November 10, 1988.

Because time consumed by pretrial motions is automatically excluded from the seventy-day limitations period, 18 U.S.C. § 3161(h) (1) (F); Wirsing, 867 F.2d at 1230, the district court denied appellant's motion to dismiss the indictment. The court reasoned that the extensive time taken up in numerous pretrial motions had been the cause for the delay; by its count only 49 days of non-excludable time had elapsed.

This ruling was harmlessly erroneous, as we will demonstrate below. Before explaining our computation, we consider appellant's contention that time should be counted between the court's denial of his motion to dismiss, June 2, 1989, and the date trial started, June 20, 1989. This argument is unpersuasive. Because appellant failed to file another motion to dismiss after June 2, 1989, he waived his right to challenge any subsequent delay. Wirsing, 867 F.2d at 1230. We thus consider only the includable time up to June 2, 1989.

In our view, as of June 2, 1989, only 59 days of includable time had elapsed. Taking as our starting date November 11, 1988--the day after the indictment was filed--our reasoning is as follows:

--Elapsed time from 11/11/88 to 12/6/88 = 26 days

--12/7/88 to 12/15/88 NOT counted because of bail/detention motions. See, e.g., Wirsing, 867 F.2d at 1231.

--12/16/88 to 12/18/88 = 3 days

--12/19/88 to 4/27/89 NOT counted because of motions to disclose informants, for in camera hearing, and Franks hearing, etc. 18 U.S.C. § 3161(h) (1) (F).

--4/28/89 to 5/4/89 = 7 days

--5/5/89 to 5/9/89 NOT counted because of stipulated motions regarding controlled substances. Id.

--5/10/89 to 6/1/89 = 23 days

--6/2/89 to 6/20/89 NOT counted because of failure to renew Speedy Trial Act objections. See Wirsing, 867 F.2d at 1230.

TOTAL DAYS COUNTABLE UNDER SPEEDY TRIAL ACT: 59 DAYS

The district court thus properly denied appellant's motion to dismiss because of a Speedy Trial Act violation.

G. Proper Sentencing.

1. Possession of the Firearm.

Appellant contends that the district court erred by adjusting his sentence upward by two levels for possession of a firearm. We review this ruling for clear error. United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989) (per curiam).

Section 2D1.1(b) (1) of the Sentencing Guidelines provides for an increase in base sentence by two levels if the defendant possessed a firearm during the commission of a drug offense. The probation officer recommended the increase because a handgun was found in a desk drawer where appellant was sitting when the officers executed their search warrant. Moreover, another gun was found inside Roads' briefcase in close proximity to the methamphetamine. See Gillock, 886 F.2d at 222-23 (enhancement appropriate when defendant's weapon was found in closet along with five ounces of methamphetamine); see also Commentary to Sentencing Guidelines Sec. 2D1.1(b) (1), note 3 ("The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense."). The district court thus did not err in ruling that Roads possessed a firearm during the commission of the offense.

2. Managerial Role.

The Guidelines also authorize an increase in offense level if the defendant played a managerial role in a criminal offense. Sentencing Guidelines, Sec. 3B1.1(b). Appellant contends that he and Frailey were "independent contractors" and that he was not in a managerial capacity. Both Roads and Frailey, Roads' codefendant, told Hodgson that Frailey was the "next step down" in Roads' drug distribution organization. E.R. 9, exhibit 1, at 5, 7. In addition, Roads admitted that he sold between one and two pounds of methamphetamine per week. The court thus committed no clear error in ruling that defendant occupied a managerial role. See United States v. Carvajal, 905 F.2d 1292 (9th Cir. 1990); United States v. Wills, 881 F.2d 823, 827-28 (9th Cir. 1989).

H. Due Process Challenge to the Sentencing.

We review appellant's constitutional challenge to the Guidelines under a de novo standard. United States v. Brady, 895 F.2d 538, 539 (9th Cir. 1990). The gravamen of appellant's argument is that the Guidelines permit sentencing to fixed terms of incarceration on the basis of facts that are not proved "beyond a reasonable doubt" and that the Due Process clause requires such a determination.

Our court has expressly rejected a similar challenge and upheld a preponderance of evidence standard. See, e.g., United States v. Wilson, 900 F.2d 1350, 1353-54 (9th Cir. 1990); United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). Application of this standard to the instant case convinces us that appellant has suffered no deprivation of constitutional rights.6  On the basis of this clear authority within our circuit, we affirm the district court's sentence.

AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

In his reply brief, appellant states that his "declaration regarding coercion deals with what transpired before Roads waived his Miranda rights and gave his oral interview and the subsequent taped interview." Appellant's Reply Brief, at 3. Appellant points to no evidence, nor has our examination of the record revealed any support for this contention. It is true that Roads' declaration stated that his responses to the arresting police officer were in "fear of and in reliance of" statements by that officer, but there is nothing in that declaration that indicates his responses were given before his waiver of his Miranda rights

 2

In his reply brief, appellant appears to argue that because he has standing to challenge the search of his own business, home, and car, he also has standing to attack the legality of the search of Sho-N-Glo. This argument is without merit. As explained above, our decisions have required that a person establish a constitutionally protected interest in a certain place. Roads can show no such interest in Sho-N-Glo, a business owned and operated by codefendant Frailey. In the search of Sho-N-Glo and the consensual search of Roads' car, the officers found 819 grams of methamphetamine and the weapons upon which his conviction and sentencing are based. As to the evidence found in Sho-N-Glo, appellant has no standing to challenge the legality of the search of Sho-N-Glo. With respect to the evidence obtained in the search of his automobile, Roads certainly has a protectible constitutional interest, but the automobile was not covered by the warrant. The officers had to, and did, receive Roads' consent to search the vehicle

 3

Roads argues that the district court should have made written findings of fact as to each allegation raised by him. He then contends that the district court's failure to state findings of fact on the record requires reversal. This argument is without merit. The district court must state its "essential findings" on the record with respect to pretrial motions. See Fed. R. Crim. P. 12(e); United States v. Castrillon, 716 F.2d 1279, 1282 (9th Cir. 1983). The court did so in this case. Moreover, appellant has not met the five requirements for a Franks hearing

 4

Hodgson submitted a declaration to the district court stating that at the time he applied for the warrant he had contacted the Bakersfield Police Department and was advised Roads was on probation. C.R. 48, Exhibit 1. The error appears to have been made by the Bakersfield police. We conclude, therefore, that Hodgson acted in good faith

 5

We review de novo the district court decision denying this motion. See Elliott, 893 F.2d at 222; Dozier, 844 F.2d at 704

 6

We note that our conclusion does not change even under a "more demanding interpretation of the preponderance standard." See United States v. Restrepo, 903 F.2d 648, 654 (9th Cir. 1990)