Appeals from the United States District Court for the Southern District of Indiana, New Albany Division. No. 4:05CR00014-001----David F. Hamilton, Chief Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
Charles Woolsey was convicted of drug and firearms offenses after police executed a search warrant at his residence and discovered a cache of guns, cocaine, marijuana, and methamphetamine. On appeal Woolsey challenges the denial of his motion to suppress the evidence seized at his house, as well as the district court's exclusion of two witnesses at his jury trial.
The government cross-appeals and argues that at sentencing the district court erred in refusing to impose a life term on his conviction for possession of methamphetamine with intent to distribute. We affirm Woolsey's convictions but vacate his sentence on the methamphetamine count and remand with directions to impose a life term on that count.
In March 2005, after police in Paoli, Indiana, had received complaints of drug activity, Police Chief Barry Chastain and Assistant Police Chief Josh Babcock visited the home of Melissa McCoy. The man who answered the door-Robert "Bo" Tuell-exhibited signs of heavy drug abuse, including sores on his face. Chastain and Babcock knew Tuell, if distantly, and had noticed him around town in recent months in worsening health. The officers had also heard rumors that Tuell was selling methamphetamine. Their conversation was brief. Chastain and Babcock told Tuell that if he continued to use and sell drugs he would "end up back in jail or worse," that he needed to stop, and that help was available at a local drug rehabilitation center. Neither officer threatened arrest.
A few weeks later Tuell contacted Chastain and asked for assistance. Tuell explained that he was "strung out," had ruined a lot of lives, and no longer wanted to be involved with drugs. Chastain then contacted a local rehabilitation counselor, and the three men met to discuss Tuell's problems. During the meeting Tuell admitted that he was a drug dealer-and that he was selling drugs for Charles Woolsey. Chastain invited Tuell to elaborate, although he did not offer Tuell any reward for the information or threaten Tuell with arrest. Nevertheless, Tuell told Chastain that in the previous week he had seen over two pounds of methamphetamine at Woolsey's house as well as marijuana and cocaine, all of which could be found in Woolsey's tool box, a lock box, or in various trash cans inside the house. Tuell also mentioned that Woolsey had recently traveled to Texas, as he did each month, to obtain a fresh shipment of drugs. When asked to identify Woolsey, Tuell reported that Woolsey drove a mid-1990s blue Chevrolet extended-cab pickup truck. Tuell also provided a home phone number and cell phone number for Woolsey. Chastain immediately communicated this information to Babcock, who supervised all drug investigations.
In an effort to corroborate Tuell's statements, Babcock spoke with Indiana State Trooper Jonathan Lamb, who confirmed Tuell's description of Woolsey's pickup. Babcock also spoke with Sergeant Paul Andry of the Indiana State Police, who told Babcock that Tuell had once before provided reliable information that led to a criminal conviction, albeit ten to twelve years earlier. Babcock then prepared an affidavit of probable cause (summarizing the information provided by Tuell, Lamb, and Andry) and a proposed search warrant for Woolsey's house. In his affidavit, Babcock revealed that Tuell (described in the affidavit as a confidential informant) was a drug addict:
The C.I. is neither seeking leniency nor financial compensation in exchange for the information that they have [sic] given. The C.I. is concerned about the use of illegal drugs, especially methamphetamine, in the county. The C.I. also stated that they was [sic] addicted to methamphetamine and needs help for his addiction.
A state judge approved the search warrant.
On April 7, 2005, law enforcement officers executed the search warrant and discovered approximately one-half pound of cocaine, two pounds of methampheta-mine, thirty-one pounds of marijuana, numerous guns, and $16,000 in currency in and around Woolsey's home. Federal authorities then took over the investigation and charged Woolsey in a superseding indictment with possession with intent to distribute 500 grams or more of methamphetamine, see 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii), possession with intent to distribute cocaine, see id. U.S.C. § 841(a)(1), possession with intent to distribute marijuana, see id. U.S.C. § 841(a)(1), (b)(1)(D), possession of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A)(i), and possession of a firearm by a felon, see id. U.S.C. § 922(g)(1).
B. District Court Proceedings
Before trial Woolsey moved to suppress the evidence seized from his home because, he maintained, the search warrant was not supported by probable cause. Woolsey argued that there was no significant corroboration of Tuell's statements prior to the search and Tuell's reliability as an informant could not rest on a single instance of useful information provided over a decade ago. Woolsey also sought suppression under a second, alternative theory, asserting that Babcock's affidavit provided false information and omitted material facts that undermined probable cause. See Franks v. Delaware, 438 U.S. 154 (1978). According to Woolsey, the supporting affidavit mis-characterized Tuell as a concerned citizen and deceived the issuing judge by failing to mention that Tuell was a drug dealer, that Chastain and Babcock had threatened him with arrest, and that ten years had passed since he last cooperated with law enforcement. Moreover, Woolsey argued, Tuell now denied that he ever spoke to Chastain about Woolsey's marijuana or Woolsey's supplier in Texas.
Following a suppression hearing, the district court concluded that the supporting affidavit did not establish probable cause but held, nonetheless, that suppression was inappropriate in light of the exception enunciated in United States v. Leon, 468 U.S. 897 (1984). Despite the absence of probable cause, the district court explained, the officers had obtained and executed the warrant in good faith. And Babcock had not, according to the court, intentionally or recklessly misled the judge who issued the warrant:
So, even with the deference that a court in my situation owes to the judge at the time, and even in light of the flexible and common sense approach we take to issues of probable cause, I think this was too thin to establish probable cause. There was no corroboration of anything ...