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USCA1 Opinion

May 21, 1993


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1018
UNITED STATES OF AMERICA,
Appellee,
v.
RICKIE ALBERT SCALIA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Friedman,* Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
James Michael Merberg with whom
______________________
for appellant.

Susan J. Naughton
_________________

was on br

F. Mark Terison, Assistant United States Attorney, with w


________________
Richard S. Cohen, United States Attorney, and Jonathan R. Chapm
________________
__________________
Assistant United States Attorney, were on brief for appellee.
____________________
May 21, 1993
____________________
__________________
*Of the Federal Circuit, sitting by designation.
CYR, Circuit Judge.
Appellant Rickie
CYR, Circuit Judge.
_____________

Albert Scalia

entered a conditional guilty plea, see Fed. R. Crim. P. 11(a)(2),


___

following the district court's


evidence
He now
ture"

denial of his motion

to suppress

seized from his residence pursuant to a search warrant.


appeals, see id.,
___ ___

his conviction for

of marijuana, 21 U.S.C.

criminal forfeiture

841(a)(1);

conviction under

unlawful "manufac18 U.S.C.

21 U.S.C.

also challenges the mandatory minimum five-year


pursuant to

21 U.S.C.

2, and a

853.

Scalia

sentence imposed

841(b)(1)(B)(vii) (minimum

sentence of

five

years for "manufacture"

plants).

Scalia contends

of one
that

hundred or

the

more marijuana

affidavit supporting

the

search warrant application was insufficient to establish probable


cause,

and that

evidence
plants

the district

on which to find
were seized

court lacked

that more than

from his

sufficient reliable

one hundred marijuana

residence.

Finding no

error, we

affirm.
A.
A.

Probable Cause
Probable Cause
______________
On February

14, 1992,

Agent Kenneth MacMaster

of the

Maine Bureau of Intergovernmental Drug Enforcement (BIDE) applied


for a

state court

warrant to

marijuana

and

related

affidavit

relied upon,

search appellant's

paraphernalia.
inter
_____

The

informant told

residence
before

on

coming

MacMaster

The

supporting

provided by

a "young concerned citizen."

that he

numerous occasions
to MacMaster.

MacMaster's

alia, information
____

confidential informant described as

residence for

and

had

visited the

as recently

informant

as

said that

Scalia

ten days

he had

observed two marijuana plants


room, five eighteen-inch
five

to

fifty plants

cooler.

of various

marijuana

in a

lights

from forty-

basement walk-in

that

s/he was

able to

s/he had "received instruction from

concerning various drugs,"

and that some

of the

friends were casual marijuana users.

plants in the

artificial

sizes

told MacMaster

recognize the plants because

informant's family and

appellant's living

plants in the bedroom, and

The informant

his/her school

a foot tall in

walk-in cooler

were being

grown under

installed

outside the

The informant observed that

other rooms

operated

padlocked cooler door.

The

by switches

in appellant's residence and rooms in an adjacent horse barn were


padlocked

as well, and that

handgun on the premises.

Scalia kept several

shotguns and a

On at least four occasions,

the infor-

mant observed Scalia selling marijuana at either his residence or


his business premises.
The primary
the

contention Scalia makes on

MacMaster affidavit

did not

establish the

appeal is that

reliability and

veracity of the informant because (1) MacMaster did not explicitly


the

attest that the informant


informant apparently

enforcement

officials

had

had no prior
_____
not provided

previously;

and

(3)

criminal record; (2)


information to
MacMaster

law

did not

attempt

to

corroborate the

informant's

tip through

follow-up

surveillance efforts at appellant's residence.1


We review the issuance of
deference,"

a search warrant with "great

United States v. Ciampa,


_____________
______

793 F.2d 19,

22 (1st Cir.

1986), to verify that there existed a "substantial basis" for the


judicial

officer's common-sense

the

circumstances set forth

the

'veracity' and

'basis

in the affidavit .
of knowledge'

hearsay information, there [was]


band or
place."

evidence of a

determination that,

"given all

. . , including

of persons

supplying

a fair probability that contra-

crime [would]

United States v. Caggiano,


_____________
________

be found

in a

899 F.2d 99,

particular

102 (1st Cir.

1990) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).


________
_____
The
"not currently
_________
he/she under
Appellant

MacMaster affidavit stated


facing any
suspicion for

criminal or

that the informant was


juvenile charges

any wrongdoing."

first suggests that MacMaster's

nor is

(Emphasis added.)

use of the word "cur-

rently" was deliberate wordplay

a statement

which was techni-

cally true but designed to camouflage the fact that the informant
had

confronted criminal or juvenile charges in the past.


__ ___ ____

Gener-

____________________

1Appellant likewise contends that the affidavit heavily depen


on "stale" evidence, namely DEA and BIDE debriefing interviews w
appellant's alleged associates implicating appellant in similar d
trafficking activities as far back as 1986-87. As the recent infor
tion provided by the informant was sufficient to establish proba
cause, we need not address the "staleness" claim.
See United Sta
___ __________
v. Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992) ("Staleness does
_________
undermine the probable cause determination if the affidavit conta
information that updates, substantiates, or corroborates the st
material."), cert. denied, 113 S. Ct. 1382 (1993).
_____ ______
5

ally speaking, the representations

contained in a search warrant

affidavit

truthful.

are presumed

Spinosa, 982 F.2d


_______
tive

valid and

620, 626 (1st Cir. 1992).

United States v.
______________

To mount an effec-

challenge based on an alleged use of deliberate or reckless

falsehoods by an affiant, a defendant must request an evidentiary


hearing

pursuant to Franks v. Delaware, 438

U.S. 154 (1978).

______
Franks
______

________

hearing is required only

stantial

if the defendant

preliminary showing (1)

that a false

makes a "sub-

statement in the

affidavit has been made knowingly and intentionally, and (2) that
the

false

cause."
1986).

statement is

necessary for

United States v. Paradis,


_____________
_______
The defendant's offer of

clusory"

and should

the finding

802 F.2d 553,

be supported by

comparable showing

558 (1st Cir.

proof must be "more

than con-

"[a]ffidavits or

otherwise reliable statements of witnesses."


171.

of probable

sworn or

Franks, 438 U.S. at


______

is required if

the defendant

would

establish that technically accurate statements by an affiant have


been

rendered

misleading by

material

omissions.

See
___

United
______

States v. Rumney, 867 F.2d 714, 720 (1st Cir.), cert. denied, 491
______
______
_____ ______
U.S. 908 (1989).
Appellant
attempted an

neither

offer of

proof relating

from the MacMaster affidavit.


no showing that

the informant

record, or

other

any

requested

Franks
______

to any

hearing

nor

material omission

Moreover, on appeal there has been


ever had a

involvement

criminal or

with the

law,

juvenile

which

might

undermine the reliability of the affidavit.

We therefore find no

basis for concluding that the informant had a prior record.

Next, appellant suggests that the reliability of firsttime

information provided

considered
can

by

a "concerned

inherently suspect,

have had

no

"track record"

informant's competence to

since law
against

citizen" should

be

enforcement officials
which to

assess

convey accurate intelligence

the

relating

to criminal activities, or the trustworthiness of the informant's


motives in

volunteering information.

We disagree.

"[A] warrant

affidavit [need not contain] an averment of previous reliability,


the

appropriate inquiry

present information is
_______ ___________

always

being

whether the

truthful or reliable."

informant's

United States v.
_____________

Cochrane, 896 F.2d 635,


________

641 (1st Cir.) (citing United States v.


______________

Harris,
______

581-82 (1971))

403 U.S.

573,

denied, 496 U.S. 929 (1990).


______
reliability,
"not
___

we have

cert.
_____

In the absence of a prior record of

recognized that,

a professional .
_ ____________

(emphasis added),

. . but

where the

informant was

a private citizen

with no known
__ _____

criminal record or other


________ ______

criminal contacts, who came forward

his own

informant's story

. .

[,] the

may

be more

on

easily

accepted . . . ."
(1st Cir. 1984)
379-81
evidence

United States v. Campbell, 732 F.2d 1017, 1019


_____________
________
(citing United States v. Burke,
______________
_____

(1st Cir.

1975)) (emphasis

that the informant who

added).

517 F.2d

377,

Since there

came to MacMaster

is no

either had a

criminal record, or was suspected of current criminal activity, a

neutral judicial officer fairly could find that the informant was

a "private citizen" who volunteered the information to MacMaster.


Furthermore,

"an

informant's

invariably be demonstrated through


information

previously furnished
__________ _________

reliability

need

not

the detailed narration of the


to

law enforcement

. .

Rather, the affidavit may disclose an adequate basis for evaluating

the informant's

detail with which it


______
tion of

the place

United States

veracity through

the very

specificity and
___________

relates the informant's first-hand descripto be

searched or the

v. Taylor, 985

items to

F.2d 3, 6 (1st

be seized."

Cir. 1993) (citing

_____________
Caggiano,
________

______

899 F.2d at

102-03) (emphasis added);

see also Coch___ ____ _____

rane, 896 F.2d at 641 ("[A]n important indicia (sic) of reliabil____


ity is the

fact that

the informant's knowledge

personal observation rather than hearsay.").


________ ___________
our

recitation

MacMaster, the
the

interior

doors,

of

the

confidential

particularity of
and contents

multiple firearms),

of

upon

As is apparent from
provided

to

the informant's description

of

the

the

was based

information

residence (e.g.,
____

location, size,

padlocked

and number

of

marijuana plants, the marijuana growing apparatus (e.g., basement


____
cooler,
conducted

artificial
by

considerable

lights),

appellant

and

inside

the
the

intrinsic support

illegal marijuana
search

premises, provided

for the informant's

sales

capacity to

convey

reliable intelligence

relating to the

criminal activity

attested to in the affidavit.2


Finally,
corroborated
warrant,

appellant argues

the informant's

that MacMaster

tip before

preferably through surveillance

should have

applying for

of Scalia's residence.

Corroboration may take various forms, however, and we


intimated that surveillance is mandatory.
F.2d at 6 (finding probable
mant's
The

a search

have never

See, e.g., Taylor, 985


___ ____ ______

cause where corroboration of

infor-

tip did not go beyond check of target's criminal record).

confidential informant's

tip

information received from other

to

MacMaster comported

with

sources, including previous BIDE

debriefing interviews with several of Scalia's former associates,


see supra note 1, as well as informal complaints lodged
___ _____
Maine

State Police

by

eight unidentified

citizens

with the

expressing

concerns about Scalia's drug trafficking activity.


The
MacMaster's

combined force
expert

of the

assessment,

and

reports provided substantial support

informant's
the

detailed tip,

corroborative

police

for a common-sense determi-

nation by the issuing judge that there existed a fair probability


____________________

2MacMaster, a BIDE agent for thirteen years, had participated


more than eighteen hundred drug investigations. He attested both
the informant's demeanor during the interview and to the authentic
of the informant's description of the suspected criminal activ
("impressed by the honesty of this person and his/her ability
describe events which he/she had seen").
See, e.g., Taylor, 985 F
___ ____ ______
at 6 ("[T]he issuing magistrate properly may credit the experience
pertinent expertise of a law enforcement affiant in evaluating
authenticity of the informant's description of the target's mo
operandi.").

that

marijuana

and

related

paraphernalia would

be

found

in

appellant's residence.
B.
B.

Mandatory Minimum Sentence


Mandatory Minimum Sentence
__________________________
A defendant

subject to a
finds by

preponderance of

21

U.S.C.

v. McMahon, 935 F.2d


_______

112 S. Ct.

the

272 (1991).

minimum, appellant would

based on

the total

kilograms) seized at his

the

marijuana plants regard-

397, 400 (1st

Were it not

court

defendant

841(b)(1)(B)(vii).

See United
___ ______

Cir.), cert. denied,


_____ ______

for the mandatory statutory

have been exposed

guideline sentencing range (Level


I),

841(a)(1) is

sentence if the

evidence that

possessed "100 or more

of weight."

States
______

21 U.S.C.

mandatory five-year minimum

manufactured or
less

convicted under

to a 46-to-57

23, Criminal History

month

Category

weight of

the marijuana

plants (111.8

residence.

See U.S.S.G.
___

2D1.1(c)(9)

(100 KG-400 KG marijuana; level 26); id.

3E1.1(a), (b) (3-level

___
reduction

for

("Where a

statutorily required minimum sentence

the maximum

acceptance

of the

of

responsibility);

id.
___

5G1.1(b)

is greater than

applicable guideline range,

the statutorily

required minimum sentence shall be the guideline sentence.").


At
for the

Maine Drug

examined
his

the time the search

Enforcement Agency, Bruce

the marijuana plants found

education and

plants

warrant was executed, an agent

experience,

were marijuana.

Bristow, visually

on the premises.

Bristow concluded

Based on

that all

112

He randomly selected fifteen plants, and


10

submitted these representative plants

(ranging from one and one-

half

chemical analysis.3

inches to

chemical analysis
juana

plants.

court

found

two

feet tall)

for

confirmed that all fifteen


Following an

that all

samples were mari-

evidentiary hearing,

112 plants

were

The

marijuana.

the district

Scalia was

sentenced to the mandatory minimum five-year term.

The district court's drug-quantity finding was based on

four factors:

(1) Bristow's trained visual identification of all

plants seized at the search scene as marijuana; (2) the fact that
all

the

plants

location;
sample

(3)

plants

appellant was

were

seized contemporaneously

the positive
tested, and

chemical
(4)

the

analysis

from
on all

absence of

growing anything other than

the

fifteen

evidence

marijuana.

same

that

Appellant

challenges only the first factor relied on by the district court,


by

attempting to

undercut the

identification.
least

two

marijuana

reliability of

Bristow's visual

Appellant argues that Bristow

conceded that at

other plant
when

they

species which
are only

one

grow
and

in Maine

one-half

look like

inches tall.

Appellant's claim fails for two reasons.

First, while the record reflects that Bristow testified


that

two marijuana look-alikes do grow in Maine, he never stated

____________________

3Bristow seized 67 plants from the bedroom, measuring from 1


inches to 10 inches in height, and 45 plants from the basement cool
all measuring 24 inches "more or less."
Bristow then divided
plants into three groups (i.e., 1 1/2 inch, 10 inch, and 24 inch)
took five samples from each group.
11

that his training


guishing
stood

these

and experience left


look-alikes

him incapable of

from marijuana.4

by his visual identification.

distin-

Rather, Bristow

Cf. United States v. Maceo,


___ _____________
_____

873 F.2d 1, 6 (1st Cir.) (extrapolations of drug quantity involve


issues of credibility
of fact), cert.
_____

and weight of evidence

denied, 493
______

Echeverri, 982 F.2d


_________

U.S. 840 (1989);

675, 677 (1st

reserved for trier


United States
_____________

v.

Cir. 1993) (qualification

of

"expert" witness reviewed only for manifest abuse of discretion).


Second,
court strongly

the other

(factual findings

tion[,]'"

on by

the district

support its drug-quantity determination

See United States v. Akitoye,


___ _____________
_______

"Although

factors relied

923 F.2d 221, 227 (1st

on drug quantity reviewed

the sentencing

court must

'err on

as well.

Cir. 1991)

for "clear error").


the side

of cau-

United States v. Barnett,


F.2d
,
[Nos. 91_____________
_______ ___
___ ___

____________________
4The relevant exchange was as follows:
Counsel:

Based on your training and experience, has it b


brought to your attention that there are two ot
plant-like substances that exhibit similar character
tics to the marijuana plant?

Bristow:

Yes.

Counsel:

How many different ones to your knowledge?

Bristow:

That I've run across in the State of Maine, two.


may be more, two that I'm very familiar with.
___ ____ ___ ____ ________ ____

Counsel:

All right. And part of your training is to attempt


differentiate between these similar plants and the o

Th

which are in fact marijuana?


Bristow:

Yes, sir.
12

1890,

91-1891, 92-1778, slip op. at 12 (1st Cir. Mar. 29, 1993)]

(approximating producible quantity of controlled


in part on amount of

substance based

precursor chemicals seized) (quoting United


______

States v. Sklar, 920 F.2d 107, 113 (1st Cir. 1990)), drug-quanti______
_____
ty

estimations

precise.

See
___

need

not

be

U.S.S.G.

6A1.3

dispute concerning a factor


nation, the
regard to
ble

at

indicia
_______

court

or

scientifically

("In resolving

any reasonable

important to the sentencing determi-

consider

relevant

information

without

its admissibility under the rules of evidence applicatrial,


of
__

provided

reliability
___________

(emphasis added);
(4th

may

statistically

Cir. 1992)

that the
to
__

support
_______

United States v.
_____________
(noting that

information
its
___

has

probable
________

Uwaeme, 975 F.2d


______

sufficient
__________

accuracy.")
________

1016, 1018

drug-quantity estimations

may be

based

on hearsay, nonscientific

entries,
defendant,

testimony, defendant's notebook

street values of drugs equivalent


or on

extrapolations of

to money seized from

potential drug

output from

seized components).

More to the present point, courts have endorsed statistically based drug-quantity
test

extrapolations predicated on

samples in circumstances

where the government

demonstrate an "adequate basis in


that

random

was able to

fact for the extrapolation and

the quantity was determined in a manner consistent with the

accepted standards of [reasonable]

reliability."

v. McCutchen,
F.2d
,
(3d Cir. 1993)
_________ ____
_____ ____

United States
______________

[No. 92-1536,

1993 U.S. App. LEXIS 7651, at 11 (3d Cir. Apr. 13, 1993)]; United
______
13

States v. Pirre, 927 F.2d 694, 697 (2d Cir. 1991)


______
_____
cient

for the government to

the total [amount

show that its

of drugs] is grounded

("It is suffi-

method of estimating

in fact and

is carried

out in a manner consistent with accepted standards of

reliabili-

ty."); see also Barnett,


___ ____ _______
92-1778,

reasonably

the

evidence

___

___

sufficient reliable evidence to

to conclude

that appellants

of drugs at least

assigned base

indicia

[Nos. 91-1890, 91-1891,

slip op. at 13] ("We must determine whether the govern-

ment presented

quantity

F.2d at

equal to the

offense

level.").

permit the court

were responsible

for a

quantity threshold for


For example,

sufficient

of reliability may be found where a preponderance of the


demonstrates

that

(1)

proper

"random"

selection

procedure was employed; (2) the chemical testing method conformed

with an accepted methodology; (3) the tested and untested samples


were

sufficiently similar

tested and untested samples


search scene.

in physical

appearance; and

were contemporaneously seized at the

See McCutchen,
F.2d at
[No. 92-1536, 1993
___ _________ ___
____

U.S. App. LEXIS 7651, at 11-12 (3d Cir. Apr. 13, 1993)].
the

overall margin
_______ ______

mation must be
defendant
minimum

(4) the

of reliability
__ ___________

in a

In sum,

drug-quantity approxi-

adequate to afford reasonable assurance

that the

is not subjected to a guideline sentence or a mandated


sentence greater

than

warranted by

14

the reliable

evi-

dence.5

Given the relatively light burden of proof, the reason-

able reliability

of the drug-quantity sampling and extrapolation

procedures employed by
countervailing

the government, and the

drug-quantity

evidence, we

utter absence of

affirm

the district

court's findings.
Affirmed.
Affirmed.
________

____________________

5A videotape of Bristow's "random" plant selection procedure


received in evidence.
Unlike the drug weight extrapolation
______
McCutchen, chemical analysis of the fifteen sample plants selected
_________
Bristow permitted a straightforward extrapolation as to the to
number of plants. The plants, all exhibiting the telltale saw-toot

______
leaf structure, were seized on the same day from the same residen
giving rise to a "strong inference" that only marijuana plants w
seized. McCutchen,
F.2d at
[No. 92-1536, 1993 U.S. A
_________
____
_____
LEXIS 7651, at 13 (Apr. 13, 1993)]. Finally, more than twelve of
seized plants (i.e., over 10% of the total) would have had to t
____
negative in order to bring the total below the 100-plant cut
required to trigger the mandatory five-year minimum sentence under
U.S.C.
841(b)(1)(B)(vii).
Yet all fifteen random samples tes
positive for marijuana.
15