Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 CR 411 -- George N. Leighton, Judge.
Wood, Eschbach, and Posner, Circuit Judges.
Defendant-appellant Martha Reed, also known as Martha Burns, appeals from her jury trial convictions on mail fraud and bank theft charges. She claims that the trial court erred by denying her a hearing on the veracity of the affidavit supporting the search warrant, and by denying her motion for suppression of evidence seized in the search which prompted the investigation leading to this prosecution. We affirm. To the extent that we treated the same issues in our recent opinion in the appeal of James W. McDonald, we rely on United States v. McDonald, 723 F.2d 1288 (7th Cir. 1983).
Both this and the McDonald case arise from the events surrounding the issuance and execution of a search warrant naming one "James" and a Chicago apartment to be searched for cocaine and proof of residency. On June 5, 1979, Chicago police narcotics detective Robert Smith swore out an affidavit for a search warrant, stating that a reliable informant told him that "James" had offered the informant cocaine that morning in the named apartment, that the informant had used the cocaine, and that as he left the apartment the informant observed some cocaine remaining there. Upon execution of the search warrant that day, Detective Smith testified that immediately upon entry he observed some white powder and crushed plant. In the same room, a large artist's portfolio was on the floor, open to reveal a large quantity of envelopes addressed to various names and locations other than a "James" at this apartment. The search of the apartment revealed more cocaine in a manila envelope, two handguns, a gold bar and gold coins in a closet, and two typewriters and several typewriter balls with different type faces. The officers seized the drugs, the portfolio and its contents, the handguns, and the gold bar and coins.*fn1
At the time of the search, appellant Martha Reed resided with McDonald at the Chicago apartment; he also resided with her at another Chicago address. The trial judge determined that Reed had standing to challenge the search and seizure. That ruling is not an issue on appeal.
Subsequent investigation revealed that McDonald and Reed were involved in a scheme which used stolen mail to defraud banks. Checks found in stolen purses and stolen mail were altered by matching the typewriter type and were negotiated through the theft victims' personal bank accounts. McDonald and appellant were charged with sixteen and eighteen counts, respectively, of mail fraud, 18 U.S.C. § 1341, possession of stolen mail, 18 U.S.C. § 1708, bank theft, 18 U.S.C. § 2113, and interstate transportation of a stolen security, 18 U.S.C. § 2314. McDonald was found guilty on all counts in a jury trial before Judge Getzendanner; appellant was convicted on all counts in a jury trial before Judge Leighton. Each defendant sought a hearing on the veracity of the affidavit underlying the search warrant, and moved to suppress evidence seized in the search. Both judges denied the hearings and motions to suppress.
Appellant challenges the search warrant as based on an intentionally or recklessly falsified supporting affidavit. She contends that she has made the substantial preliminary showing upon which the fourth amendment requires a hearing to be held at her request. See Franks v. Delaware, 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). To invalidate the warrant and exclude the fruits of the search, appellant would bear the burden of establishing by a preponderance of the evidence that the affiant included perjured statements or recklessly disregarded the truth in making the statements in the affidavit, and that without the affidavit's false material the remainder of the affidavit lacks probable cause to support the warrant. Id. at 156.
Appellant proposes to prove in a Franks hearing either that the informant could not have been in the apartment when he said he was, or that no informant existed. In her effort to make a preliminary showing, she called McDonald to testify as to the time he arrived at his apartment that morning, and the circumstances of the search. Judge Leighton found McDonald's testimony "incredible," and ruled that no substantial preliminary showing had been made. United States v. Reed, No. 82 CR 411, slip op. at 4 (N.D. Ill. Dec. 22, 1982) (denial of motion to suppress).
In McDonald, we held that the Franks presumption of validity of an affidavit supporting a search warrant, Franks, 438 U.S. at 171, cannot be overcome by a self-serving statement which purports to refute the affidavit. McDonald, slip op. at 11. McDonald's testimony here, as in his own suppression hearing,*fn2 is insufficient to make the " substantial preliminary showing" that we required in McDonald. See id.
Appellant also argues that if an informant existed and gave police false information, Detective Smith included "reckless" falsifications in the affidavit because he did not verify the accuracy of the informant's statements. We do not find recklessness here. "Allegations of negligence or innocent mistake are insufficient." Franks, 438 U.S. at 171. According to the affidavit, the informant, a source who had given police reliable information in the past, told Detective Smith only that a person named "James" was in the given apartment that morning and had offered the informant cocaine. That information was sufficiently ...