United States v. Neal Stone , 676 F. App'x 469 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0042n.06
Case No. 15-5434
UNITED STATES COURT OF APPEALS
FILED
FOR THE SIXTH CIRCUIT Jan 19, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT OF
) KENTUCKY
NEAL STONE, )
)
Defendant-Appellant. )
)
)
BEFORE: SILER, BATCHELDER, and GRIFFIN, Circuit Judges.
SILER, Circuit Judge. Defendant Neal Stone appeals his conviction, arguing that the
district court erred when denying his motion to suppress and his motion for acquittal on one
count of the indictment. For the following reasons, we affirm the district court’s decision.
I. Factual and Procedural Background
In 2014, Stone was indicted on several drug charges involving cocaine and heroin. Count
One charged Stone with attempt to possess with intent to distribute cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and 846. Count Two charged him with conspiracy to distribute heroin, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Count Three charged Stone with distribution of
heroin, in violation of 21 U.S.C. § 841(a)(1), and Count Four charged him with possession with
intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1).
Case No. 15-5434
United States v. Neal Stone
Stone moved to suppress evidence that was seized from his residence by police. He
argued that the search warrant affidavit failed to establish probable cause that he had engaged in
criminal activity and failed to make a connection between his residence and the suspected crime.
The affidavit in support of the search warrant was submitted on May 14, 2014, by Detective
Jason Varney of the Berea Police Department.
The affidavit alleged that:
On May 9, 2014, Detective Varney was informed by a cooperating witness (“CW”) that
the CW could purchase heroin from Nicky Hampton. Hampton was supplied the heroin by a
black male who was attending Eastern Kentucky University. The CW then told Detective Danny
McGuire that the unknown black male would be arriving at Hampton’s residence. Detective
McGuire drove to Hampton’s residence and observed a black male exit the residence carrying a
backpack and then drive away in a Toyota Camry registered to Neal Stone. Detective McGuire
followed the vehicle to Eastern Kentucky University, where he lost it in traffic. Detective
McGuire later learned that Stone had an address of 818 Brockton, which is located on the
Eastern Kentucky University campus.
After receiving this information on May 9, Berea Police gave the CW money to make a
controlled purchase of one gram of heroin from Hampton. A few days later, Berea police
conducted another controlled buy. The CW met with Hampton to purchase heroin, and Hampton
informed the CW that she was supposed to meet her supplier but could not bring the CW with
her to the meeting. The CW was dropped off in the Walmart parking lot. In the meantime,
Madison County Sheriff’s Detective Jasper White drove to 818 Brockton. Detective White saw
Stone leave 818 Brockton and followed him to Richmond Centre, where he lost the car in traffic.
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Police also followed Hampton and a white male, later identified as Josh Bogie, to
Richmond Centre. Hampton and Bogie stopped at a Culvers Restaurant in Richmond, and
Hampton entered the business and exited a short time later and got back in the vehicle with
Bogie. They returned to the Walmart parking lot, where they picked up the CW. They then
dropped the CW off in a Kohls parking lot.
Police stopped Bogie and Hampton in the Kohls parking lot. Bogie was in possession of a
small amount of heroin. No narcotics were found on Hampton, but she claimed that she
purchased the heroin found on Bogie from Catherine Leake inside the Culvers bathroom.1
Hampton and Bogie agreed to cooperate with police by arranging a heroin deal with a man they
knew as “Mike.” Later that same day, Bogie made a consensually monitored and recorded call
to “Mike,” whom law enforcement believed to be Stone, to arrange the purchase of two grams of
heroin.2 “Mike” agreed, and the two planned to meet at Walmart. Detective McGuire rode with
Bogie and Hampton to Walmart, and Detective White observed Stone and Leake exit 818
Brockton and leave the area in the red Toyota Camry registered to Stone. Detective White
followed the vehicle to Richmond Plaza. Stone told Bogie to meet at McDonald’s and to have
Hampton enter the McDonald’s bathroom, where Leake was waiting. Detectives encountered
Leake inside McDonald’s, and Stone as he sat in his car outside of the restaurant. No drugs were
found in Stone’s vehicle or in his possession. Leake was arrested and was searched during the
booking process, when a small amount of heroin was discovered.
On May 14, 2014, based on the above information, Detective Varney executed a state
search warrant for 818 Brockton. During the search, law enforcement located and seized a black
1
The affidavit states that Hampton told Detective McGuire that she purchased the heroin from “Neal
Stone’s girlfriend (Catherine Leake).”
2
Audio recording reveals that Bogie addressed the person who answered the call as “Big G.”
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backpack which contained Stone’s identification, several baggies containing heroin, $520 of
police buy money, scales, and syringes.
Later in May 2014, Detective McGuire was informed that Christopher Jordan was
attempting to post a $30,000 bond for Leake. Police contacted Jordan, who had acted as a police
informant. Police seized the $30,000 bond money and then worked with Jordan to execute a
reverse sting. This involved Jordan’s providing Stone with a kilogram of cocaine so that Stone
could get back the $30,000 that was seized from Jordan when Jordan attempted to post Leake’s
bond. After Stone sold the cocaine, he was to keep $30,000 and then give the remaining profit to
Jordan. Jordan testified that Stone agreed to this transaction, and the two of them discussed the
amount of cocaine and the sale price. Jordan said that Stone originally thought that Jordan was
lying about being able to get the cocaine and that they also discussed a sale of marijuana in
addition to the cocaine. Jordan testified that before the transaction, he told Stone that Stone was
to meet him to pick up the cocaine but that Jordan would have to go back to Louisville to get the
marijuana. Jordan stated that he told Stone to “come get this and I got to drive back to Louisville
to get the weed” because “they don’t like weed and coke to travel together because weed kind of
stinks and the police dogs can alert, you know, on it pretty easy.” Jordan also stated that during
the buy, he unzipped the bag he was carrying and showed Stone the two bricks of fake “cocaine”
before giving the bag to Stone in exchange for cash.
Stone was arrested in August 2014. His first motion to suppress the results of the May
search warrant was denied by the district court. Stone again moved for suppression and for an
evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978), to challenge the results of
the search warrant. The district court denied the motion and declined to hold a hearing. Stone
proceeded to a jury trial. He filed timely motions for judgment of acquittal, which were both
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denied. Stone was found guilty on all four counts. He was sentenced to 120 months’
imprisonment. The issues on appeal are whether the district court properly denied the motion to
suppress and whether the district court properly denied Stone’s motions for acquittal.
II. Motion to Suppress
A. Standard of Review
When reviewing a district court’s denial of a motion to suppress, we review the district
court’s findings of fact for clear error and its conclusions of law de novo. United States v. Rose,
714 F.3d 362, 366 (6th Cir. 2013). We also consider the evidence in the light most favorable to
the government. United States v. Beauchamp, 659 F.3d 560, 565-66 (6th Cir. 2011).
B. The Warrant Affidavit Contains Probable Cause
The Fourth Amendment provides that “no Warrants shall issue, but upon probable
cause . . . .” U.S. Const. amend. IV. “Probable cause is defined as ‘reasonable grounds for belief,
supported by less than prima facie proof but more than mere suspicion.’” United States v. King,
227 F.3d 732, 739 (6th Cir. 2000) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir.
1990)). When reviewing an affidavit for a search warrant, a judge must make a “practical,
common-sense decision” based on all the circumstances, including the veracity and basis of
knowledge of individuals providing hearsay information, to determine if “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.” Illinois v.
Gates, 462 U.S. 213, 238 (1983). The judge must also determine that a nexus exists between the
evidence sought and the place to be searched. Rose, 714 F.3d at 366. The inference that
evidence of drug trafficking will be found at the residence of a person who is engaged in drug
trafficking may go toward establishing a sufficient nexus. See United States v. Gunter, 551 F.3d
472, 482 (6th Cir. 2009).
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A judge’s decision to issue a warrant is afforded great deference. See United States v.
Kenny, 505 F.3d 458, 460-61 (6th Cir. 2007). When such a decision is challenged by the
defendant, the reviewing court looks only to the four corners of the affidavit to determine if there
was probable cause. United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010) (citing United
States v. Pinson, 321 F.3d 558, 565 (6th Cir. 2003)). A decision to issue a warrant should only
be reversed if the judge arbitrarily exercised his or her discretion. United States v. Allen,
211 F.3d 970, 973 (6th Cir. 2000) (en banc). A line-by-line approach to scrutinizing an
underlying affidavit is therefore inappropriate; the reviewing court should determine simply
whether the judge had a “substantial basis” for concluding that a search would “uncover
evidence of wrongdoing.” Id. (quoting Gates, 462 U.S. at 236).
Furthermore, there is “a presumption of validity with respect to the affidavit supporting
the search warrant.” Franks v. Delaware, 438 U.S. 154, 171 (1978). But, “a search warrant is
invalid when the supporting affidavit contains a statement, necessary to the finding of probable
cause, that is later demonstrated to be false and included by an affiant knowingly and
intentionally, or with a reckless disregard for the truth.” United States v. Duval, 742 F.3d 246,
250 (6th Cir. 2014) (citing Franks, 438 U.S. at 155-56). Franks also applies to cases where an
affiant intentionally omitted information in an affidavit, which is critical to the probable cause
determination. Id. A defendant may request an evidentiary Franks hearing if he “raises a
substantial question as to whether the affidavit supporting the search warrant contained
materially false information.” United States v. Caldwell, 114 F. App'x 178, 181 (6th Cir. 2004)
(citing Franks, 438 U.S. at 156). This requires making a “substantial preliminary showing” of
knowing or reckless falsity. Id. at 182. If the defendant is able to show deliberate falsity or
reckless disregard for the truth, those portions of the affidavit are set aside, and the remaining
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content is analyzed to determine if it supports probable cause. Franks, 438 U.S. at 171-72.
Thus, the offending information must be essential to a probable cause finding. Id. Innocent or
negligent mistakes are not enough. Id. at 171.
Stone first argues that the affidavit does not establish probable cause for the search of his
residence. He claims that there was no meaningful corroboration of the information in the
affidavit and points to several alleged discrepancies or misrepresentations, such as Stone’s name
being inserted in place of “Mike” and “Big G” in the affidavit when no source identified Stone as
going by those names. He also states that the affidavit falsely represented that on May 9, 2014,
officers saw an “unidentified black man” drive away from Hampton’s residence. Detective
McGuire testified that he saw the man and vehicle registered to Stone at Hampton’s residence on
May 8, 2014. A controlled buy occurred on May 9, 2014, so Stone argues that when the date is
corrected, there is no connection between Stone, the “unidentified black male,” and the events on
May 9, 2014. He also argues that the affidavit does not explain how the police determined that
(1) he lived at 818 Brockton Apartments, (2) Leake obtained heroin from Stone, or (3) drug-
related activity occurred at 818 Brockton. Furthermore, Stone claims that the search warrant
affidavit establishes no nexus between the alleged criminal activity and Stone’s residence.
Reviewing Detective Varney’s affidavit, we find that probable cause was established.
The affidavit is thorough and explains how police saw a black male exiting Hampton’s
residence. Detective McGuire observed this man exit in a car registered to Stone. Detective
McGuire later determined that Stone had an address of 818 Brockton and saw Stone leave
818 Brockton in his car on two more occasions and Stone and Leake exit the 818 Brockton
residence together on one of these occasions. Both of these instances were close in time to drug
deals involving Hampton, Bogie, and the CW. As to Stone’s argument that the affidavit is
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misleading because Hampton and Bogie sometimes referred to Stone by different names, the
affidavit clearly states that Hampton and Bogie knew Stone only as “Mike,” and the references to
Stone’s name by those individuals are not intended as direct quotations. In addition, police
observed Stone’s movements and noted that those movements corresponded to known drug
activity. As such, the police were not only relying on information provided by the CW but were
also tracking Stone and other individuals and corroborating the informant’s information.
Stone’s assertion that additional information, such as how the police learned his address,
should have been included in the affidavit does not negate all the evidence included in it.
See Allen, 211 F.3d at 975 (“[An] affidavit is judged on the adequacy of what it does contain, not
on what it lacks, or on what a critic might say should have been added.”). Moreover, Stone’s
attempt to reference the trial testimony about the discrepancy in the date goes outside the “four
corners of the affidavit.” See Brooks, 594 F.3d at 492. Even so, the actions are only one day
apart, and there were other facts suggesting Stone’s involvement in the drug deals. Regarding
Stone’s allegation that there was no nexus between his house and drug-dealing activity, it is
correct that a warrant affidavit must provide a “specific and concrete” connection between the
place to be searched and evidence of criminal activity. United States v. Brown, 828 F.3d 375,
382 (6th Cir. 2016); see also United States v. Higgins, 557 F.3d 381, 390 (6th Cir. 2009) (no
nexus because reliability of informant who identified defendant’s residence as part of a drug
trafficking operation was not established); United States v. McPhearson, 469 F.3d 518, 524 (6th
Cir. 2006) (no nexus when defendant arrested at his residence for a non-drug offense but found
to have some crack cocaine on his person). This is not a case where police used uncorroborated
information from a potentially unreliable informant or failed even to watch the defendant’s
home. Here, the affidavit establishes that police saw Stone leave his residence on several
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occasions, including once with Leake, and go to locations of known drug deals, as provided by
the CW. Importantly, police observed Stone leave his residence immediately following a
recorded phone call discussing an imminent drug deal, and police then followed Stone to the
location discussed in the call and made contact with him outside of McDonalds. The affidavit
provided a connection between the CW, Hampton, and Stone, and presented probable cause that
at these drug deals, which occurred soon after police saw Stone leave his residence, Stone
supplied the other individuals with drugs.
A judge reviews an affidavit using a “totality of the circumstances” approach, and “may
afford ‘considerable weight to the conclusion of experienced law enforcement officers regarding
where evidence of a crime is likely to be found and [is] entitled to draw reasonable inferences
about where evidence is likely to be kept, based on the nature of the crime and type of offense.’”
United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008) (quoting United States v. Bethal,
245 F. App'x 460, 465 (6th Cir. 2007)). Based on all the information presented in the affidavit,
the judge had a substantial basis to believe that evidence of criminal activity would be located at
Stone’s residence, and no evidence suggests an arbitrary exercise of discretion.
Finally, Stone presents the court with a list of allegedly false statements and omissions in
the affidavit, many of which are discussed above, such as the discrepancy with the dates and the
use of the names “Mike” and “Big G.” Stone argues that once these statements are removed, the
affidavit cannot support probable cause. Stone fails, however, to show that these statements are
false or were made intentionally or with a reckless disregard for the truth. See Caldwell, 114 F.
App'x at 181. The affidavit stated that the officers learned Stone’s identity after observing his
car at Hampton’s residence and then checking the registration. Nothing suggests that Detective
Varney’s references to Stone’s name in the affidavit—when the individuals actually referred to a
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person named “Mike” or” Big G”—are meant as direct quotes, especially as the affidavit clearly
states that Hampton and Bogie knew Stone only as “Mike.” Based on this information, it is
apparent that Detective Varney did not make an intentional or reckless misstatement as to
Stone’s identity. As to the date being listed as May 8 versus May 9, the government contends
that the date is merely a typographical error. “A defendant cannot demonstrate entitlement to a
Franks hearing by merely identifying typographical errors in the affidavit.” United States v.
Frazier, 423 F.3d 526, 539 (6th Cir. 2005). Stone offers only speculation that this date was
intentionally or recklessly wrong, which is not enough to make a substantial preliminary showing
of knowing or reckless falsity. Regarding the other challenged statements not discussed in depth
here, Stone again provides only conclusory assertions that they were intentionally false or made
in reckless disregard of the truth. As such, we find that the affidavit established probable cause.
III. Motion for Acquittal
A. Standard of Review
When reviewing a district court's denial of a motion for judgment of acquittal due to
insufficient evidence, we ask “whether after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Lloyd, 10 F.3d 1197, 1210 (6th Cir. 1993) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
B. The District Court Properly Denied the Motion for Acquittal
Stone moved for a judgment of acquittal on all counts at the close of the government’s
case-in-chief based on insufficiency of the evidence. The district court denied the motion. Stone
did not put on any evidence after the government rested, but he renewed his motion for acquittal,
which was again denied. The jury found Stone guilty of all four counts, including attempt to
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possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C §§ 841
and 846.
Stone now challenges the denial of the motion for acquittal only as to the charge of
attempt to possess with intent to distribute cocaine. To convict a person of attempt, the
government must prove a defendant’s intent to commit the proscribed criminal activity along
with the commission of an overt act that qualifies as a substantial step toward the commission of
the criminal activity. See United States v. Bilderbeck, 163 F.3d 971, 975 (6th Cir. 1999). The
overt act must “mark defendant’s conduct as criminal in nature.” United States v. Pennyman,
889 F.2d 104, 106 (6th Cir. 1989) (quoting United States v. Reeves, 794 F.2d 1101, 1103-04 (6th
Cir. 1986)). That is, the conduct “must unequivocally corroborate the required subjective intent
to purchase or sell actual narcotics.” Id. (quoting United States v. Pennell, 737 F.2d 521, 525
(6th Cir. 1984)). In the instant case, the proscribed criminal activity is possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841. The elements of that offense “are that the
defendant: ‘(1) knowingly, (2) possessed a controlled substance, (3) with intent to distribute it.’”
United States v. Russell, 595 F.3d 633, 645 (6th Cir. 2010) (quoting United States v. Coffee,
434 F.3d 887, 897 (6th Cir. 2006)). As with proof of intent, proof of knowledge is rarely shown
by direct evidence. United States v. Scruggs, 549 F.2d 1097, 1104 (6th Cir. 1977). “Intent to
distribute can be inferred from the possession of a large quantity of drugs, too large for personal
use alone.” United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995) (citing United States v.
Faymore, 736 F.2d 328, 333 (6th Cir. 1984)).
During trial, Jordan testified about the reverse sting where he agreed to provide Stone
with cocaine to sell in order to get back the seized $30,000 used to post Leake’s bond. Stone
claims that he believed he was taking possession of marijuana, not cocaine, from Jordan, so he
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failed to have the requisite specific intent for the attempt crime. Although Jordan testified that
he and Stone had originally talked about both a cocaine and a marijuana deal, Jordan said he told
Stone that Stone was to meet him to pick up the cocaine but that Jordan would have to go back to
Louisville to get the marijuana. Jordan also testified that he unzipped the bag and showed Stone
the two bricks of “cocaine.” Furthermore, during the transaction, which was being recorded,
detectives heard Stone say several times that he thought Jordan was going to provide him with
weed, yet he still accepted the bag of cocaine.
This is enough evidence from which any reasonable fact finder could find all the
elements of the crime beyond a reasonable doubt. Even if Stone showed up to meet Jordan
expecting to receive marijuana, the facts show that Jordan told him that he did not have the
marijuana and that the current deal was for cocaine. Nothing suggests that Jordan tried to trick
Stone into thinking that the current deal was still about marijuana. Our job now is simply to
review this evidence and determine if any rational finder of fact could infer that Stone had the
specific intent to possess cocaine with the intent to distribute, and to conduct the review in a light
most favorable to the jury’s verdict. The evidence supports this conclusion, and as such, the
district court did not err in denying the motion for acquittal.
AFFIRMED.
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