Appeals from the United States District Court for the District of Columbia (01cr00259) (01cr00259–01)
Before: Randolph and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.
The opinion of the court was delivered by: Randolph, Circuit Judge
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Opinion concurring in part and concurring in the judgment filed by Circuit Judge ROGERS.
James I. Gaston and Jacqueline V. Shelton appeal their convictions for possessing heroin with intent to distribute it, and for possessing a firearm during a drug trafficking offense. Gaston also appeals his conviction for unlawful possession of a firearm by a felon. The issues deal with the legality of the search of Gaston's residence, with the admission into evidence of statements he made during the search, with the sufficiency of the evidence, and with Shelton's motion to disclose the identity of a confidential informant.
An agent of the Bureau of Alcohol, Tobacco and Firearms (''ATF''), in his affidavit supporting a search warrant, stated that a confidential informant – ''CI–1'' – contacted the agent ''[w]ithin the last 72 hours,'' gave the address of a house in which ''Jimmy'' resided, and reported observing a handgun there. The affidavit further stated that CI–1 had provided reliable information to ATF in the past, leading to the execution of four search warrants and the recovery of firearms, narcotics and money; that CI–1 had never provided inaccurate information; and that in the agent's experience, those who illegally possess firearms do not regularly dispose of them. The affidavit reported that ATF's investigation, using the computer-based Washington Area Law Enforcement System, indicated that ''Jimmy'' was James Isaac Gaston, an individual who ''ha[d] been arrested numerous times in the past for weapon and drug violations,'' and had ''felony convictions'' for carrying a ''pistol without a license in 1982, 1987 and 1990.''
A judge of the Superior Court of the District of Columbia issued a search warrant on June 19, 2001, finding probable cause to believe that there was a firearm in the two-story row house Gaston occupied. Later in the day, officers of ATF and the United States Park Police executed the warrant, seizing among other things two pistols, heroin, a scale and cash.
Gaston and Shelton claim the search violated their Fourth Amendment right against unreasonable searches and seizures because the affidavit did not support the judge's finding of probable cause. They identify several defects in the affidavit: the affidavit did not say when CI–1 saw the handgun; it did not explain why CI–1 was in the house, or where in the house CI–1 saw the weapon; and it did not indicate that the agents had corroborated CI–1's information before seeking the warrant. Also, the statement that Gaston had felony convictions in 1982, 1987 and 1990 for unlawfully possessing firearms turned out to be incorrect; the presentence report stated that he had only one such conviction, in 1984.
In none of the pretrial proceedings did Gaston alert the district court to the affidavit's mistake about the number of his felony convictions for firearms offenses, something one would expect Gaston to know. His attorney merely said to the court, first, that he ''had joined'' Shelton's pretrial motion to suppress, which the court earlier had denied without a hearing, and second: ''we would also challenge the evidence seized from the home on the basis of a Franks violation contained in the warrant. I think there are some factual inaccuracies in the warrant.'' The court responded that counsel had not triggered a ''Franks hearing.''
The district court was surely right. Under Franks v. Delaware, 438 U.S. 154, 171 (1978), a defendant is entitled to an evidentiary hearing only if his attack on the accuracy of the affidavit is ''more than conclusory'' and is accompanied by ''allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.'' Gaston made no offer of proof. He did not allege deliberate falsehood or reckless disregard of the truth. He directed his claim of ''inaccuracies'' at the ''warrant,'' rather than the affidavit. And even if he had the affidavit in mind, he identified no particular inaccuracy, let alone a deliberate or reckless one. Shelton's motion to suppress filled in none of these gaps. Her motion merely asserted, in general terms, that the warrant was not supported by probable cause ''with respect to Ms. Shelton.''
Given this record, the government urges us to review the district court's refusal to suppress the evidence for plain error only. At oral argument, Gaston conceded that plain error was the proper standard. In the normal course, we would sustain the district court's findings of fact unless they were clearly erroneous and would examine its legal conclusions de novo. See United States v. Pindell, 336 F.3d 1049, 1052 (D.C. Cir. 2003). In this case, it hardly matters which of these standards of review we employ. There is no possible way for these defendants to overcome United States v. Leon, 468 U.S. 897 (1984). The Supreme Court there assumed that the affidavit in support of the warrant did not supply probable cause because it relied on a confidential informant of unproven credibility; because some of his information was stale; and because the police had not corroborated other information the informant provided. But Leon held that if the officers had gathered evidence in objectively reasonable reliance on the search warrant, the evidence should not be suppressed despite the affidavit's inadequacy. Id. at 922–24. Here the defendants offered no reason to believe that the ATF agent, in preparing his affidavit, knew that what he wrote about Gaston's felony convictions was false, or that he acted in reckless disregard of the truth. Id. at 926. Neither defendant formally moved for an evidentiary hearing under Franks, or even attempted to make the sort of showing that would have entitled them to one. We also doubt that it mattered much whether Gaston had ''only'' one prior conviction, rather than three. But even if it did matter, there is no evidence to support attributing the error to the deliberate or reckless action of the officers involved in the search. The affidavit indicated that the information about Gaston's convictions came not from the officers, but from information in a computer system. The defendants' arguments rest on unsupported factual inferences, unsupported because they never made their evidentiary case in the district court.
There is nothing to the defendants' further point that Leon's good-faith exception is inapplicable because the affidavit was ''so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'' Leon, 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610– 11 (1975)). The ATF agent's affidavit was as strong as the affidavit in Leon, and in important respects stronger. The ATF agent at least established the informant's reliability. And fairly read, his affidavit indicated that the informant's information was fresh. The affidavit said CI–1 had contacted the agent within the last ''72 hours'' about observing a handgun in ''Jimmy's'' residence. It is a fair reading, though not the only one, that the report and the observation occurred within the last three days. See United States v. Ventresca, 380 U.S. 102, 108 (1965). Besides, the affidavit stated that in the agent's experience, individuals who come into possession of firearms tend to keep possession of them. If ''Jimmy'' had a gun in his house three days before the search, or three ...