United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 92-2202
UNITED STATES,
Appellee,
v.
RAYMOND LEE HIGGINS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Ricky L. Brunette with whom Brunette, Shumway & Ryer was on brief
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for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
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whom Richard S. Cohen, United States Attorney, and Richard W. Murphy,
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Assistant United States Attorney, were on brief for appellee.
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May 28, 1993
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STAHL, Circuit Judge. In this appeal, defendant
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Raymond Lee Higgins argues that the district court improperly
denied his request for in camera disclosure of a confidential
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government informant. Finding that the district court did
not abuse its discretion in denying defendant's request, we
affirm.
I.
I.
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BACKGROUND & PRIOR PROCEEDINGS
BACKGROUND & PRIOR PROCEEDINGS
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In January of 1992, Detective Captain Rick Frazee
of the Fairfield, Maine, Police Department learned from a
confidential informant that defendant, a parolee from a
federal drug trafficking conviction, was regularly supplying
Daryl Coskery, another known drug dealer, with large
quantities of marijuana. The informant also told Frazee that
defendant and Coskery intended to drive from Waterville,
Maine, to Virginia Beach, Virginia, in order to purchase
$50,000.00 worth of marijuana. He provided such details as
the car in which the defendant and Coskery would travel, and
the approximate dates and times of departure and return.
Using this information, Frazee, along with Kenneth
MacMaster, a Special Agent with the Maine Bureau of
Intergovernmental Drug Enforcement (BIDE), and two other BIDE
agents, observed defendant and Coskery leaving the state at
the time and in the manner predicted by the informant.
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Based on these facts and their corroborative
surveillance, MacMaster sought a warrant to search, upon
defendant's return to Maine, his car and home for drugs,
evidence of drug trafficking, and firearms. MacMaster's
search warrant affidavit outlined the events described above,
and attested to the confidential informant's reliability as
established by his previous participation in approximately
six earlier controlled drug buys which resulted in arrests
and convictions. A State of Maine District Court Judge
issued the warrant.
Pursuant to the warrant, defendant was apprehended
upon his return to Maine by police officers positioned at the
state line. The ensuing car search yielded less than one
ounce of marijuana. The search of defendant's home yielded
another small marijuana supply in addition to four firearms.
On February 13, 1992, defendant was indicted in federal court
on four counts of possession of a firearm in violation of 18
U.S.C. 922(g)(1) and 924(a)(2).1
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1. 18 U.S.C. 922(g)(1) provides in relevant part:
It shall be unlawful for any person who has been
convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year; to . .
. possess . . . any firearm or ammunition . . . .
18 U.S.C. 924(a)(2) governs fines and imprisonment for
violations of 922(g)(1). The crime for which defendant was
paroled at the time of his arrest was punishable by
imprisonment for more than one year.
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On March 3, 1992, defendant filed a pre-trial
motion seeking, inter alia, in camera disclosure of the
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confidential informant's identity. Defendant argued that
such disclosure was necessary in order for him to make the
preliminary showing required to obtain a Franks suppression
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hearing.2 A Magistrate Judge recommended denial of the
request, and on May 28, 1992, the district court reviewed and
accepted that recommendation. Following a one-day jury trial
on June 6, 1992, defendant was convicted on all counts.
II.
II.
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DISCUSSION
DISCUSSION
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On appeal, defendant argues that the district court
erred in denying his request for in camera disclosure of the
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confidential informant's identity. We do not agree.
When the government obtains a search warrant based
on information provided by a confidential informant,
defendants often lack the information required to meet the
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2. Under Franks v. Delaware, 438 U.S. 154, 155-56 (1977), a
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defendant may obtain a suppression hearing if s/he "makes a
substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for
the truth, was included in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of
probable cause . . . ." If, at the hearing, it is determined
that such a false statement was intentionally or recklessly
included in the warrant affidavit, evidence obtained pursuant
to the false statement must be suppressed. Id. at 156.
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exacting standards of Franks.3 See, e.g., United States v.
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Southard, 700 F.2d 1, 10-11 (1st Cir. 1983). In such cases,
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district courts may conduct in camera examinations of the
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affiant and, if necessary, of the informant, in order to
determine whether disclosure of the confidential informant's
identity would enable the defendant to obtain a Franks
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hearing. Id.
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However, "a district court need not conduct an in
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camera hearing whenever the identity of an informant is
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requested." United States v. Fixen, 780 F.2d 1434, 1439 (9th
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Cir. 1986). Rather, "it should rest entirely with the judge
who hears the motion to suppress to decide whether [s/]he
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needs such disclosure as to the informant in order to decide
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3. Franks, 438 U.S. at 171, provides a clear standard for
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determining whether a defendant has made a sufficient
preliminary showing to obtain a hearing:
There is, of course, a presumption of validity with
respect to the affidavit supporting the search
warrant. To mandate an evidentiary hearing, the
challenger's attack must be more than conclusory
and must be supported by more than a mere desire to
cross-examine. There must be allegations of
deliberate falsehood or of reckless disregard for
the truth, and those allegations must be
accompanied by an offer of proof. They should
point out specifically the portion of the warrant
affidavit that is claimed to be false; and they
should be accompanied by a statement of supporting
reasons. Affidavits or sworn or otherwise reliable
statements of witnesses should be furnished, or
their absence satisfactorily explained. The
deliberate falsity or reckless disregard whose
impeachment is permitted . . . is that of the
affiant, not of any nongovernmental informant.
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whether the officer is a believable witness." United States
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v. Jackson, 918 F.2d 236, 241 (1st Cir. 1990) (citations and
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internal quotations omitted) (emphasis in original). See
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also United States v. Giacalone, 853 F.2d 470, 477-78 n.1
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(6th Cir. 1988) ("We believe that the trial judge should
retain the discretion to determine what type of hearing is
necessary, if any, to determine the veracity of the affiant
in cases where the defendant has alleged that the affidavit
contains false information, but has failed to make a
`substantial preliminary showing' that the affiant has lied
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such as that which would require a Franks hearing.")
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(emphasis in original). Finally, "a decision denying a
defendant's request for an in camera proceeding should be
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overturned only if there is an abuse of discretion." Fixen,
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780 F.2d at 1439. Our careful review of the record in the
instant case shows no abuse of discretion.
Defendant's motion for in camera disclosure begins
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by naming an individual, Matthew Tulley, whom defendant
suspects was the confidential informant. The motion goes on
to suggest that Tulley was aware that defendant and Coskery
planned an innocent trip to Virginia, but that Tulley, in
concert with Frazee and MacMaster, fabricated the notion that
the trip was for the purpose of purchasing marijuana. If
true, these allegations might raise serious constitutional
issues. Defendant fails, however, to offer proof of any fact
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that is materially inconsistent with the facts recited in
MacMaster's search warrant affidavit.
First, defendant offers to prove that Tulley
learned of the trip through an acquaintance, Dale Peters, and
that Peters never told Tulley that the purpose of the trip
was to purchase marijuana. Defendant does not contend,
however, that Peters was the only person who knew of the trip
to Virginia. Thus, even if Tulley was the informant, he
might easily have learned additional information about the
illicit nature of the trip from a source other than Peters.
Accordingly, defendant's offer of proof regarding Peters is
not at all inconsistent with MacMaster's affidavit.
Second, defendant offers to prove that on the
evening of defendant's and Coskery's departure from Maine,
Tulley, under the surveillance of Frazee and MacMaster,
unsuccessfully attempted to make a controlled purchase of
marijuana from Coskery. Moreover, defendant claims that this
attempted purchase was not included in MacMaster's search
warrant affidavit. Again, this offer of proof misses the
mark. When a defendant offers proof of an omission, the
"issue is whether, even had the omitted statements been
included in the affidavit, there was still probable cause to
issue the warrant." United States v. Rumney, 867 F.2d 714,
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720-21 (1st Cir.), cert. denied, 491 U.S. 908 (1989). Here,
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the controlled purchase incident is not necessarily
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inconsistent with any of the other events recounted in the
warrant affidavit. Thus, even if the affidavit had included
an account of the incident,4 there were still ample grounds
for a finding of probable cause. Accordingly, defendant's
offer of proof regarding the controlled purchase incident is
not materially inconsistent with MacMaster's affidavit.
In sum, defendant has failed to articulate how in
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camera disclosure of the informant's identity would enable
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him to obtain a Franks hearing. On one hand, if an in camera
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hearing disclosed that the informant was Tulley, there
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remains nothing in the record, aside from defendant's
conclusory assertions and insufficient offers of proof, to
support the theory that MacMaster submitted false statements
in order to obtain the warrant. On the other hand, if the in
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camera hearing disclosed that the informant was not Tulley,
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then defendant has offered no alternative grounds for
obtaining a Franks hearing.5 Accordingly, the district
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4. Both MacMaster and Frazee submitted affidavits stating
that, while they took part in surveillance of Coskery on the
evening of his departure from Maine, neither knew of a plan
to make a controlled purchase of marijuana from Coskery that
evening.
5. We note additionally that defendant's motion for in
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camera disclosure was seriously inadequate in form. The
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motion was supported solely by an affidavit signed by defense
counsel. The affidavit did not provide the sworn statements
of witnesses, nor did it explain the absence of such
statements, as required by Franks, 438 U.S. 154, 171
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("Affidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence
satisfactorily explained."). Thus, even if defendant's
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court did not abuse its discretion in denying defendant's
request for an in camera hearing on the identity of the
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confidential informant.6
III.
III.
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CONCLUSION
CONCLUSION
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For the foregoing reasons, the judgment of the
district court is affirmed.
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offers of proof were substantively meritorious, we would
require more than the conclusory allegations set forth in
counsel's affidavit. Id.
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6. Relying almost exclusively on State v. Thetford, 745 P.2d
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496 (Wash. 1987), defendant also argues on appeal that Tulley
was an "ad hoc" agent of the Fairfield Police, and that
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therefore Tulley's veracity, along with MacMaster's, should
be at issue. To the extent that defendant raised this issue
below, he did so in a perfunctory manner. "A party is not at
liberty to articulate specific arguments for the first time
on appeal simply because the general issue was before the
district court." United States v. Slade, 980 F.2d 27, 31
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(1st Cir. 1992). Accordingly, defendant's argument is deemed
waived. In any event, however, our careful review of the
proceedings below satisfies us independently that defendant's
argument is unsupported by the record.
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