United States v. Herman F. Ray, Jr. ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4415
HERMAN FRANCIS RAY, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-98-353)
Submitted: October 8, 1999
Decided: October 25, 1999
Before WIDENER, MOTZ, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Lionel S. Lofton, LOFTON & LOFTON, P.C., Charleston, South
Carolina, for Appellant. J. Rene Josey, United States Attorney, Brucie
Howe Hendricks, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Herman F. Ray, Jr., appeals from the district court's order denying
his motion to suppress and order denying him permission to assert the
defense of entrapment by estoppel. Ray pled guilty to one count of
possessing a firearm after having been convicted of a crime punish-
able by more than one year imprisonment, in violation of 18 U.S.C.A.
§§ 922(g)(1), 924(a)(2) (West 1976 & Supp. 1999), and reserved his
right to appeal the denial of his pretrial motions. Finding no error, we
affirm.
The first set of issues raised by Ray concern the sufficiency of the
search warrant. Ray raises for the first time in his appeal the claim
that statements made by Detective Register to the magistrate when
seeking the search warrant were not shown to be given under oath
and, therefore, cannot be a basis for finding probable cause to issue
the warrant. "Issues raised for the first time on appeal generally will
not be considered." Muth v. United States, 1 F.3d 246, 250 (4th Cir.
1993) (citations omitted). An exception to this general rule is made
where "refusal to consider the newly-raised issue would be plain error
or would result in a fundamental miscarriage of justice." Id. Because
Ray has not argued either exception and because we conclude the
affidavit alone presents a substantial basis for the magistrate's finding
of probable cause, we find no cause for this court to engage in a plain
error analysis on this issue. Id.Ray next alleged that the incorrect time of day stated in the affida-
vit and warrant rendered the search warrant deficient. A court's deter-
mination of "probable cause under the Fourth Amendment is an issue
of law, and is thus reviewed de novo." United States v. Wilhelm, 80
F.3d 116, 118 (4th Cir. 1996) (citing United States v. Miller, 925 F.2d
695, 698 (4th Cir. 1991)). It is well-established that "great deference
is to be given a magistrate's assessment of the facts when making a
determination of probable cause." United States v. Jones, 31 F.3d
1304, 1313 (4th Cir. 1994) (citations omitted).
The affidavit's rendition of the facts was in the past tense, indicat-
ing that the events had already occurred. Therefore, the fact that the
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time was noted incorrectly did not render the affidavit deficient
because there were other indications in the warrant that the events had
already occurred and the magistrate could have correctly determined,
from the affidavit alone, that she was authorizing a search based on
events that had already occurred.
Ray next argues that the affidavit was deficient because it relied
exclusively upon the statements of unnamed informants whose reli-
ability had not been established by the affidavit. The affidavit clearly
states, however, that neighbors gave written statements concerning
gunshots and that those statements also contained allegations that Ray
was intoxicated. Simply because the witnesses' names were not con-
tained in the affidavit, then, does not make them informants, espe-
cially in light of the fact that they gave written statements and
provided their names, addresses, and phone numbers to the police.
Thus, Ray's argument that the affidavit was based on informants and,
therefore, their "reliability" and "basis of knowledge" must be shown,
as required by Illinois v. Gates, 462 U.S. 213, 233 (1983), is without
merit.
Ray's final allegation of deficiency is that the affidavit failed to set
forth what criminal offense the police were investigating. Detective
Register alleged in the affidavit that Ray discharged a firearm inside
and outside of the described residence. Further, the affidavit stated
that Ray was "highly intoxicated." South Carolina law prohibits the
use of a firearm while under the influence of alcohol. Thus, a criminal
offense is clearly set forth in the affidavit.
Based on the foregoing, we find that the magistrate had a substan-
tial basis for concluding probable cause existed and affirm the district
court's denial of Ray's motion to suppress.
The second issue Ray asserts on appeal is that the court erred in
rejecting his defense of entrapment by estoppel. 1
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1 Ray initially filed a motion to dismiss on the basis of entrapment by
estoppel. At the motions hearing, he moved for permission to assert the
defense of entrapment by estoppel. On appeal, he simply alleged the
court erred in "rejecting his defense" of entrapment by estoppel. There-
fore, we address only the issue raised on appeal, which is whether the
court erred in denying his motion to present the defense of entrapment
by estoppel.
3
We review a district court's decision, made prior to trial, to refuse
to allow a defendant to present an affirmative defense for abuse of
discretion. United States v. Osbourne, 935 F.2d 32, 38-39 (4th Cir.
1991). "A criminal defendant may assert an entrapment-by-estoppel
defense when the government affirmatively assures him that certain
conduct is lawful, the defendant thereafter engages in the conduct in
reasonable reliance on those assurances, and a criminal prosecution
based upon the conduct ensues." United States v. Aquino-Chacon, 109
F.3d 936, 938 (4th Cir. 1997) (citations omitted). In order to assert
this defense, the defendant must do more than establish the govern-
ment made "vague or even contradictory" statements, rather, he must
demonstrate "active misleading in the sense that the government actu-
ally told him that the prescribed conduct was permissible." Id. at 939(citations omitted). Furthermore, "statements made by a person who
is not a federal government official cannot establish the defense of
entrapment by estoppel." United States v. Clark, 986 F.2d 65, 69 (4th
Cir. 1993) (citations omitted).
We find Ray failed to meet two of the three elements of this
defense and thus failed to present evidence sufficient to assert the
defense of entrapment by estoppel. First, the federal government
never assured Ray of anything because they were not involved in the
case until after Ray was arrested in April 1998. The local police, like-
wise, never spoke to Ray about the firearm and, therefore, could not
have assured him that it was legal for him, as a convicted felon, to
possess a firearm. Second, because there were no assurances of per-
missible conduct from any law enforcement officer or government
official, Ray could not have acted in reasonable reliance upon repre-
sentations by government officials. Thus, although there was ulti-
mately a criminal prosecution for the federal offense of unlawful
possession of a firearm by a convicted felon, this fact alone is insuffi-
cient to permit assertions of the entrapment-by-estoppel defense.
After a complete review of the record, we accordingly find there was
no evidence presented that entitled Ray to assert the defense of
entrapment by estoppel.2
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2 We note that this Court generally disfavors disposing of affirmative
defenses prior to presentation of evidence at trial. See Aquino, 109 F.3d
939, n.3. In this case, however, we find no error in the district court's
pretrial resolution of this issue because the evidence clearly did not sup-
port an entrapment by estoppel defense. See Osbourne, 935 F.2d at 38.
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For the foregoing reasons, we affirm the district court's order deny-
ing Ray's motion to assert the defense of entrapment by estoppel and
the order denying his motion to suppress. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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