Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Charles Junior HINSLEY, Defendant-Appellant.

No. 89-50077.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 1990.* Decided Dec. 5, 1990.

Before SCHROEDER, WIGGINS, and LEAVY, Circuit Judges.


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.

 **

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

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 1

According to the affiant, there was a ten-minute time gap in which surveillance vehicles lost sight of the vehicle after it left the storage facility until when it was resighted at 18373 Arrow Highway. According to Hinsley, there was a five-hour interval until he was seen talking with the driver of the vehicle outside his residence at 18373 Arrow Highway. If true, Hinsley's version of the events would refute the evidence that the chemicals in the vehicle were transported to and unloaded at his residence. He contends that if the five-hour interval had been correctly reflected in the search warrant affidavit, the existence of probable cause would be negated