United States v. Wiley, Claude ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-2596 & 05-2633
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLAUDE WILEY, JR. and
TATU M. BROWN,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 04 CR 7—John Daniel Tinder, Judge.
____________
ARGUED NOVEMBER 6, 2006—DECIDED FEBRUARY 6, 2007
____________
Before RIPPLE, WILLIAMS and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Claude Wiley, Jr. and Tatu M.
Brown were charged in a single indictment with various
counts relating to a drug conspiracy. Mr. Brown subse-
quently entered a conditional guilty plea to a single
count of conspiracy and the district court sentenced him
to 188 months’ imprisonment. Mr. Wiley proceeded to
trial and was convicted of a conspiracy charge and of
certain distribution charges. The district court sentenced
him to 395 months’ imprisonment.
2 Nos. 05-2596 & 05-2633
Mr. Brown and Mr. Wiley timely filed these direct
appeals. Mr. Brown contends that evidence obtained from
a search of his home was inadmissible because the affi-
davit in support of the warrant did not establish probable
cause. He further submits that the good faith exception to
the warrant requirement is inapplicable. Mr. Wiley con-
tends that the jury was instructed improperly as to the
weight to give the testimony of Government informants
who received a benefit in exchange for their testimony.
For the reasons set forth in the following opinion, we
affirm the convictions of both defendants.
I
BACKGROUND
Mr. Brown and Mr. Wiley were charged in a single, four-
count superseding indictment with several offenses
under 21 U.S.C. § 841(a)(1). Both defendants faced a
charge of conspiracy to possess with intent to distribute
and conspiracy to distribute cocaine hydrochloride
(“powder cocaine”) and cocaine base (“crack”) as well as
a charge of crack distribution. Mr. Wiley also was charged
with distribution of powder cocaine. The indictment
alleged that Mr. Wiley obtained powder cocaine in Chicago
and that, by himself and with the assistance of others,
he transported the cocaine to Terre Haute, Indiana,
where he and Mr. Brown both distributed cocaine powder
and also manufactured and distributed crack.
A. Facts and Proceedings Involving Mr. Brown
1. The Search Warrant
On January 16, 2003, Drug Enforcement Administration
(“DEA”) Special Agent Joanna Zoltay executed an eight-
Nos. 05-2596 & 05-2633 3
page affidavit detailing evidence linking Mr. Brown to
drug trafficking. This affidavit was intended to accom-
pany an application for a search warrant for Mr. Brown’s
residence at 2320 2nd Avenue, Terre Haute, Indiana. In
that affidavit, Agent Zoltay first recounted facts about a
controlled buy of cocaine in which Mr. Brown was in-
volved. Specifically, on September 24, 2002, a confiden-
tial source (“CS”), whose information previously had
resulted in over ten convictions of narcotics traffickers,
contacted the DEA and stated that the CS could pur-
chase cocaine from a man named Donte Britt.1 The DEA
prepared the CS for a controlled buy from Britt later
that same afternoon, including outfitting him with a
listening device. The CS then traveled to a motel parking
lot. Britt met the CS at the CS’ vehicle, then walked to a
green Ford Expedition parked across the street. The CS
called out over the wire that he observed Mr. Brown in
the Expedition. A license plate check revealed that the
Expedition was registered to Annalee Monts, Mr. Brown’s
girlfriend, at the 2nd Avenue residence. Britt returned
to the CS’ vehicle from the Expedition carrying 28.9 grams
of cocaine which the CS purchased and handed over to the
police. Agent Zoltay further stated that it was consistent
with her experience in narcotics investigations that “upper
level narcotics traffickers do not participate in transac-
tions with persons they do not know, but will deliver to a
middleman such as Brit[t], who then conducts the trans-
action.” R.59, Ex.C at 2.
Agent Zoltay also recounted statements of two additional
sources who had identified Mr. Brown as a drug trafficker.
1
The affidavit refers to him as “Brit,” although the remainder
of the record makes clear that his name is in fact “Britt.”
4 Nos. 05-2596 & 05-2633
First, a cooperating individual (“CI-1”), arrested on crack
distribution charges, had informed the police that he
had trafficked cocaine for a period of several years and
that Mr. Brown was his primary drug source during that
period. He also stated that Mr. Brown supplied other
distributors, including Britt and Seagrams Poston. CI-1
told agents that he had witnessed Mr. Brown, on an
unspecified date, cooking powder cocaine into crack in the
2nd Avenue residence. CI-1 further stated that he had
accompanied Mr. Brown when Mr. Brown delivered two
ounces of crack to a man named Derrick Hatfield in late
October 2002; Agent Zoltay herself had participated in
surveillance of Hatfield on October 29, 2002, when Hat-
field delivered two ounces of crack to a DEA CS. A sec-
ond cooperating individual (“CI-2”), arrested on cocaine
trafficking charges, told DEA agents that he had pur-
chased high-quality marijuana from Mr. Brown.
Finally, Agent Zoltay’s affidavit provided certain details
from independent DEA investigations connecting the
2nd Avenue residence both to Mr. Brown and to drug
trafficking activity. She stated that, on January 14, 2003,
DEA agents conducting surveillance on the 2nd Avenue
residence observed Mr. Brown exit the house to assist
Monts in carrying groceries from the green Expedition,
which had been seen at the controlled buy from Britt in
September 2002. Agents also observed Poston, who had
a prior conviction for cocaine possession, enter the resi-
dence with a backpack and leave several hours later
without it. On January 15, 2003, agents observed Mr.
Brown exit a car, unlock the front door of the 2nd Avenue
residence, enter, then later exit, lock the door and return
to the car. On the same date, Mr. Brown was stopped
while driving the green Expedition registered to Monts
Nos. 05-2596 & 05-2633 5
in connection with an investigation relating to a stolen
Expedition. Also on January 15, 2003, a DEA agent con-
firmed with a postal inspector that Mr. Brown received
mail at the 2nd Avenue residence.
In addition to the specific evidence linking Mr. Brown
to drug trafficking activity and to the 2nd Avenue resi-
dence, Agent Zoltay provided additional background
information drawn from her own experience, including
the likelihood that certain types of evidence relating
to drug trafficking activity would be found in the resi-
dence of a suspected drug trafficker.
On January 16, 2003, a magistrate judge issued a
search warrant for the 2nd Avenue home. The officers
executed the warrant later that same day. The inventory
from the search included numerous firearms and am-
munition, a small quantity of marijuana and a marijuana
pipe, bullet proof vests, a police scanner and Illinois li-
cense plates. R.59, Ex.B.
2. Mr. Brown’s Motion to Suppress and the Plea
Agreement
Before his trial, Mr. Brown moved to suppress the
evidence obtained in the search. He challenged the suffi-
ciency of the affidavit to sustain the magistrate judge’s
probable cause determination. The district court denied
the motion and admitted the evidence. In its opinion,
the district court first addressed the reliability of the
informants. The court identified CI-1 as the key informant
and determined that, with respect to this source, suf-
ficient reliability had been established through corro-
boration by police investigation and by the statements
of the other informants. First, the information from CS,
6 Nos. 05-2596 & 05-2633
whose reliability is established by the statement in the
affidavit that he had assisted in investigations leading to
over ten convictions, connected Mr. Brown to Britt, as had
CI-1. CI-1’s statements regarding deals to Poston were
corroborated, the court found, however slightly, by the
observations of the agents at the 2nd Avenue residence,
who saw Poston enter with the backpack and leave with-
out it. With respect to Mr. Brown’s sale of cocaine to
Hatfield, a controlled buy by a DEA source from Hat-
field corresponded to the date and drug quantity identi-
fied by CI-1. The district court concluded that, taken
together, these statements tended to establish as reliable
the information that CI-1 had purchased cocaine from
Mr. Brown and had observed Mr. Brown cooking cocaine
in the searched residence. Moreover, reasoned the court,
the statements of CI-1 should be credited because they
were offered against CI-1’s penal interest. The court
thus concluded that the DEA had corroborated suffi-
ciently CI-1’s statements through investigation. It further
determined that, based on the totality of circumstances,
the magistrate judge had a substantial basis for conclud-
ing that the affidavit contained probable cause to sup-
port a finding that Mr. Brown was a drug trafficker.
The court also found that the reliability of CS was
supported not only by the agent’s direct statement in the
affidavit, but also because the CS’ statements placing
Mr. Brown in the Expedition at the time of the controlled
buy from Britt in 2002 were corroborated by an independ-
ent investigation connecting Mr. Brown and the Expedi-
tion.
Turning to the question of nexus between the alleged
criminal activity and the premises, the district court
concluded that the requisite connection was established by
Nos. 05-2596 & 05-2633 7
the nature of the criminal activity at issue and the prob-
ability that evidence of drug dealing may be found where
drug dealers live. R.71 at 13 (citing United States v. Lamon,
930 F.2d 1183, 1188 (7th Cir. 1991)). More specifically,
the court concluded that the affidavit sufficiently linked
Mr. Brown himself to the 2nd Avenue home. The most
critical evidence, in the court’s view, was Mr. Brown’s
possession of a key to the house, suggesting some ele-
ment of dominion and control over the location. In addi-
tion, he was observed carrying in groceries, and he ap-
parently had received mail at the residence. Refusing to
accept as a general proposition that a drug dealer’s home
categorically establishes the nexus to criminal activity
required to support a warrant, the court found further
evidence connecting Mr. Brown’s criminal activities to the
home was sufficient to establish the requisite nexus.
Specifically, CI-1 had stated that he had observed Mr.
Brown cooking cocaine into crack at the residence.
The court then turned to the case authorities relied upon
by Mr. Brown in support of his lack-of-nexus argument.
In the court’s view, those cases involved substantially
thinner connections to the home. Specifically, Mr. Brown
had contended that his case was substantially similar
to two cases in which a court had concluded that a
nexus to the searched premises was lacking. However, as
the district court noted, in one of those cases the only
connection was a vehicle registration; in another, there
was simply a conclusory statement that a defendant
resided at the place to be searched. R.71 at 14-16 (citing
United States v. McNeal, 82 F. Supp.2d 945, 957-60 (S.D. Ind.
2000), and United States v. Dickerson, 975 F.2d 1245 (7th Cir.
1992)). In neither case, concluded the court, did the war-
rant include specific statements regarding the defendant’s
8 Nos. 05-2596 & 05-2633
entry or exit from the house, possession of a key, receipt of
mail, or illegal activity within the house. Given these
facts, and the court’s belief that there was a certain inher-
ent likelihood that evidence of drug activity would be
found in a drug dealer’s home, the court held that there
was a substantial basis for probable cause linking the home
with Mr. Brown’s illegal activities.
The district court then turned to Mr. Brown’s final
argument that the information provided in the affidavit
was stale at the time that it was presented to the magistrate
judge. The court concluded that, even though some of the
evidence was from several months prior to the applica-
tion, it nevertheless established a pattern of on-going
criminal activity. In such circumstances, the court con-
cluded, “the passage of time becomes less critical,” and
staleness less of a concern in establishing probable cause.
R.71 at 17 (citing Lamon, 930 F.2d at 1188). In sum, al-
though calling it a “close case,” the district court deter-
mined that the warrant should be upheld as supported by
probable cause. R.71 at 17.
Turning to the issue of good faith reliance, the district
court concluded that, even if the affidavit were insuffi-
cient to establish probable cause, it was not so lacking as
to render belief by the executing officers in the existence
of probable cause “entirely unreasonable.” Id. at 18 (quot-
ing United States v. Koerth, 312 F.3d 862, 868 (7th Cir. 2002)).
Therefore, the court held in the alternative that the
good faith exception was applicable.
Having determined, on alternate grounds, that the
search did not violate the Fourth Amendment, the court
denied the motion to suppress.
Following this ruling, Mr. Brown pleaded guilty to,
and was sentenced on, the conspiracy count only, but
Nos. 05-2596 & 05-2633 9
conditioned his plea on his right to appeal the sup-
pression issue.
B. Proceedings Involving Mr. Wiley
1. Investigation
In 2003, the Vigo County Drug Task Force suspected
Mr. Wiley of dealing drugs in the Terre Haute area. At the
about the same time, Timothy Bailey was arrested and
charged with certain methamphetamine and marijuana
offenses in Vigo County. As a part of a deal struck with
the prosecutor’s office, Bailey agreed to cooperate as an
informant to the Drug Task Force on Mr. Wiley’s drug
trafficking activities. Bailey also agreed to participate in
a controlled buy of powder cocaine from Mr. Wiley for
the Task Force.
On the morning of August 21, 2003, Bailey arranged a
meeting with Mr. Wiley to purchase four-and-a-half
ounces of powder cocaine for $3000 later that day. Detec-
tive Charles Burress of the Terre Haute City Police pre-
pared Bailey for the buy. He strip-searched Bailey and
also searched his vehicle prior to the actual purchase,
proceeded to a location to view Mr. Wiley’s residence
and observed Bailey enter the residence with money
provided by law enforcement to purchase cocaine. Bailey
testified that he requested the cocaine from Mr. Wiley
and waited with Mr. Brown for some time, smoking
marijuana in the kitchen, while Mr. Wiley and his cousin
finished playing a video game. R.71 at 211. According to
Bailey, Mr. Brown left sometime before Bailey. Id. Bailey
then left the house forty-five minutes to an hour later and
proceeded to a drop location to meet with Detective
Burress and provide to him what was later determined
10 Nos. 05-2596 & 05-2633
to be 121 grams of cocaine. Bailey said that he had pur-
chased this cocaine from Mr. Wiley.
Agents conducted surveillance on Mr. Wiley’s residence
both before and during the buy and remained there after
Bailey left while a search warrant was obtained. Mr. Wiley
left the residence during this period; agents on the
scene asked that a marked police car conduct a traffic
stop of the car he was traveling in and detain him. The
agents obtained the warrant later that afternoon and
searched his home where they discovered crack in the
kitchen freezer and other drug paraphernalia.
2. The Trial and the Jury Instruction
At trial, Detective Burress and Bailey testified about
the controlled buy leading to the search of Mr. Wiley’s
home. Bailey also testified that he had obtained small
amounts of powder cocaine from Mr. Brown for several
years during the 1990s in Terre Haute and that, from
1994 until 2001, when he was arrested, he had purchased
large amounts of cocaine from Mr. Wiley and Mr. Brown.
The Government also called Michael Collier as a wit-
ness. He testified that he had purchased crack from
Mr. Brown for several years and that during that time, he
came to know Mr. Wiley as “Cuz,” Mr. Brown’s cocaine
source. Collier testified that he previously had shuttled
cocaine from Mr. Wiley in Chicago to Mr. Brown in Terre
Haute. He also stated that he had traveled with Mr. Brown
to Chicago on another occasion. While in Chicago,
Mr. Brown had seen Mr. Wiley, among others, and, on
returning to Terre Haute, Mr. Brown had cocaine that he
had not possessed earlier. Collier told the jury that, in
exchange for his testimony, the Government had agreed
Nos. 05-2596 & 05-2633 11
not to file an information alleging a prior felony drug
conviction. Consequently, Collier avoided the possibility
of a sentencing enhancement based on that prior convic-
tion in his future trial on federal cocaine charges. Because
of this agreement, his minimum sentence would be ten,
not twenty, years.
At the conclusion of a two-day trial, the court instructed
the jury. Included among the instructions was the follow-
ing cautionary instruction pertaining to informant credibil-
ity:
You have heard testimony from several witnesses who:
(1) received a benefit from the [G]overnment in
connection with this case, namely a promise of a
recommendation for a reduced sentence;
(2) stated that they were involved in the commis-
sion of the offenses as charged against the Defen-
dants; and
(3) have pleaded guilty to an offense arising out of
the same occurrence for which the Defendants are
now on trial. Their admission of guilt is not to be
considered as evidence against the Defendants on
trial.
You may give the testimony of such witnesses
the weight as you feel it deserves, keeping in mind
that it is to be received with caution and weighed
with great care.
R.75 at 322. The jury returned a verdict of guilty on a lesser
included conspiracy charge and on distribution charges
for both powder cocaine and cocaine base. The district
court sentenced Mr. Wiley to 395 months’ imprisonment.
12 Nos. 05-2596 & 05-2633
II
DISCUSSION
A. Mr. Brown’s Motion to Suppress
Mr. Brown asks that we review the ruling of the district
court denying his motion to suppress the evidence ob-
tained in the search of his home. Whether a warrant
affidavit includes sufficient indicia of probable cause is a
legal conclusion that we review de novo. United States v.
Harris, 464 F.3d 733, 738 (7th Cir. 2006).
We have stated:
A magistrate’s determination of probable cause is to
be given considerable weight and should be over-
ruled only when the supporting affidavit, read as a
whole in a realistic and common sense manner, does
not allege specific facts and circumstances from which
the magistrate could reasonably conclude that the
items sought to be seized are associated with the
crime and located in the place indicated.
United States v. Newsom, 402 F.3d 780, 782 (7th Cir. 2005)
(internal citation and quotation marks omitted). The
probable cause inquiry “is practical, not technical, and
we consider the totality of the circumstances.” United
States v. Anderson, 450 F.3d 294, 302 (7th Cir. 2006) (internal
citations and quotation marks omitted). However, where
“an affidavit is all that was presented to the issuing
judge, the warrant’s validity rests on the strength of the
affidavit.” Id. When an affidavit is based on informant tips,
our probable cause inquiry is also based on the totality of
the circumstances. See Illinois v. Gates, 462 U.S. 213, 230
(1983). However, four factors are particularly relevant as
a part of this inquiry. Specifically, we shall pay close at-
Nos. 05-2596 & 05-2633 13
tention to: “(1) the extent to which the police have corrobo-
rated the informant’s statements; (2) the degree to which
the informant has acquired knowledge of the events
through firsthand observation; (3) the amount of detail
provided; and (4) the interval between the date of the
events and police officer’s application for the search
warrant.” United States v. Koerth, 312 F.3d 862, 866 (7th Cir.
2002).
Mr. Brown contends that various omissions demon-
strate the absence of probable cause. First, Mr. Brown notes
that the affidavit fails to establish the credibility of the
informants on which it relies, particularly CI-1 and CI-2.
With respect to the information provided by CI-1,
Mr. Brown argues that the account does not provide a date
on material facts, such as the observation of Mr. Brown
cooking cocaine. Accordingly, he submits, the facts could
be so stale that, at the time the warrant was obtained,
probable cause no longer existed. With respect to CI-2,
Mr. Brown notes that the affidavit does not provide any
evidence of a link to the residence to be searched.
Mr. Brown’s argument seeks to separate each assertion
in the affidavit and to find an infirmity with all of them.
The flaw in Mr. Brown’s approach is its failure to recognize
the nature of the probable cause inquiry: We, like the
issuing magistrate judge, assess the totality of circum-
stances presented and make a practical, common-sense
determination about the existence of probable cause on
the basis of the affidavit as a whole. Credibility of infor-
mants, nexus to the searched premises and to illegal
activity, and the age of the information are all relevant
considerations in this inquiry, but no single piece of
information need satisfy every relevant consideration
14 Nos. 05-2596 & 05-2633
before we may consider it.2 When specific facts and
circumstances are alleged that reasonably could lead a
magistrate judge to believe that the fruits or instrument-
alities of a crime are to be found at a particular location,
we shall give great weight to that determination. See
Newsom, 402 F.3d at 782.
We now turn to an examination of the facts relevant
in assessing the existence of probable cause in the affidavit
at issue. Three separate informants provided informa-
tion linking Mr. Brown to drug activity; all claimed first-
hand knowledge of Mr. Brown’s drug activities. CS was a
source from which the DEA agent preparing the affidavit
previously had received reliable information. CI-1’s
information overlapped to some degree with CS’ infor-
mation, insofar as it linked Mr. Brown to Britt, the
controlled-buy target of CS and the DEA. CI-1’s informa-
tion regarding Mr. Brown’s residence was corroborated
by the independent investigation that revealed his free
entry and exit from the home during the relevant period.
CI-1’s information regarding Mr. Brown’s drug activ-
ities was corroborated by the information about the
separate controlled buy from Hatfield; CI-1 stated that he
and Mr. Brown had provided the original cocaine for that
transaction. CI-2’s information admittedly adds little
insofar as it relates to an entirely different drug and
2
This is not a case where the defendant alleges that the affi-
davit included false information (or material omissions) that
must be excised (or must be added) before the determination of
probable cause is made. See United States v. Merritt, 361 F.3d
1005, 1010 (7th Cir. 2004), vacated and remanded in light of
United States v. Booker, 543 U.S. 220 (2005); see generally Franks
v. Delaware, 438 U.S. 154 (1978).
Nos. 05-2596 & 05-2633 15
points to no specific occurrences tending to corroborate
anything the other informants had stated other than the
general proposition that Mr. Brown trafficked in narcotics.
Considering the totality of the circumstances described
in the affidavit, we conclude that the district court was
correct in its ruling that the magistrate judge had a sub-
stantial basis for concluding that probable cause existed.
We are not persuaded by Mr. Brown’s contentions to the
contrary. We acknowledge that the affidavit does not
provide any statements attesting to the credibility of
either CI-1 or CI-2 and that, in fact, the information con-
tained in the warrant about the individuals (that they
were cooperating with law enforcement following their
own arrests) does not strongly suggest that their ac-
counts are unimpeachable. Nonetheless, CI-1’s statement,
which provides the most material details, is corroborated
generally by CS’ and CI-2’s identification of Mr. Brown as
a narcotics trafficker. CI-1’s identification of Mr. Brown
with cocaine trafficking specifically and his connection to
Britt are both items which are corroborated by CS’ state-
ment. On perhaps the affidavit’s most convincing and
most damaging facts, as far as Mr. Brown is concerned,
further corroboration was provided by independent
investigation, such as the controlled buys from Britt and
Hatfield, which add “great weight” to the reliability of an
informant’s tip. United States v. McKinney, 143 F.3d 325, 329
(7th Cir. 1998). In addition, under the facts and circum-
stances presented here, staleness does not greatly limit
the information presented because the information pos-
sessed by the DEA indicated an on-going pattern of
criminal activity. United States v. Lamon, 930 F.2d 1183,
1187-88 (7th Cir. 1991).
Finally, on the issue of nexus, “[p]robable cause does
not require direct evidence linking a crime to a particular
16 Nos. 05-2596 & 05-2633
place. Instead, issuing judges are entitled to draw rea-
sonable inferences about where evidence is likely to be
found given the nature of the evidence and the type of
offense. In the case of drug dealers, evidence is often found
at their residences.” Anderson, 450 F.3d at 303 (internal
quotation marks and citations omitted). We agree with
the district court that it would be inappropriate to adopt
a categorical rule that would, in every case, uphold a
finding of probable cause to search a particular location
simply because a suspected drug trafficker resides there;
we nevertheless conclude that, in this case, a belief that a
sufficient nexus exists is supported by the affidavit itself.
Specifically, Agent Zoltay states that CI-1 observed
Mr. Brown cook cocaine into crack and that Poston, who
CI-1 identifies as another narcotics trafficker linked to
Mr. Brown, was observed by police entering the residence
and leaving a bag inside. These statements directly con-
nect the residence to Mr. Brown’s trafficking activities. In
consideration of the totality of circumstances presented
to the magistrate judge and given the practical nature of
the probable cause determination, we conclude that the
magistrate judge had a substantial basis to find probable
cause for the warrant to issue.
Even if probable cause was lacking, we still would not
exclude the evidence obtained unless Mr. Brown also
demonstrated that the officer could not reasonably have
believed that the facts set forth in the affidavit were
sufficient to support the magistrate judge’s determina-
tion of probable cause. Koerth, 312 F.3d at 866 (citing
United States v. Leon, 468 U.S. 897 (1984)).
We review de novo the district court’s conclusion that
law enforcement officers reasonably relied on a search
warrant that is subsequently invalidated. United States v.
Sidwell, 440 F.3d 865, 869 (7th Cir. 2006). The decision to
Nos. 05-2596 & 05-2633 17
seek a warrant is prima facie evidence that an officer
was acting in good faith. Koerth, 312 F.3d at 868. The
defendant must defeat this presumption with evidence
that the issuing magistrate judge wholly abandoned his
judicial role or that the officer’s affidavit was so lacking
in indicia of probable cause as to render official belief in
its existence entirely unreasonable. Id.
Mr. Brown’s argument on this point is relatively thin,
and makes broad generalizations that “no facts” corrobo-
rate informant information, that “no facts” establish that
Mr. Brown lived at the residence, and that “no nexus” was
made between Brown’s dealing and the residence. Appel-
lants’ Br. at 24. These statements are not supported by
the record. Although corroboration of some elements of
the informants’ statements is lacking, independent
police corroboration was a significant factor in establish-
ing the reliability of the informants. Likewise, some
evidence, specifically Mr. Brown’s possession of a key and
the statement of the postal inspector, established Mr.
Brown’s residence, and statements from CI-1 connected
the residence to the drug dealing activity. Accordingly,
even if the warrant itself were infirm, Mr. Brown has not
made substantial arguments that the good faith exception
should not apply. Therefore, the evidence is admissible,
and we affirm Mr. Brown’s conviction and sentence.
B. The Cautionary Instruction at Mr. Wiley’s Trial
Mr. Wiley asks that we review the language of the
cautionary instruction. At the outset, we note that Mr.
Wiley failed to object to this instruction at trial and,
therefore, he has forfeited this argument. Forfeited objec-
tions to jury instructions are reviewed for plain error.
United States v. Holmes, 93 F.3d 289, 292 (7th Cir. 1996).
18 Nos. 05-2596 & 05-2633
“[E]rror is plain, first of all, if it is clearly an error . . . . But
it must also affect the defendant’s substantial rights and,
in addition, seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” United States
v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005) (internal
quotation marks and citations omitted). It must be “so
obvious, crucial, and egregious that we may and should
correct it even though no objection was made below.”
Backwater, Inc. v. Penn-American Ins. Co., 448 F.3d 962, 965
(7th Cir. 2006).
The Supreme Court has stated that informant testi-
mony presents special credibility problems, and accord-
ingly, careful instructions to the jury regarding credibil-
ity are appropriate. Banks v. Dretke, 540 U.S. 668, 701-02
(2004); see also On Lee v. United States, 343 U.S. 747, 757
(1952) (“The use of informers, accessories, accomplices,
false friends, or any of the other betrayals which are ‘dirty
business’ may raise serious questions of credibility. To
the extent that they do, a defendant is entitled to broad
latitude to probe credibility by cross-examination and
to have the issues submitted to the jury with careful
instructions.”).
In considering the matter of instructions regarding
informant credibility, this court has held that a special
instruction is not necessary as a matter of course and that,
as a general matter, a general credibility instruction
will suffice. United States v. Cook, 102 F.3d 249, 252-53 (7th
Cir. 1996). Moreover, we have emphasized that the dis-
trict court is “best situated to detect and deal with threats
of unreliable testimony,” id. at 252, and therefore to
determine when such an instruction is advisable or neces-
sary.
Mr. Wiley does not dispute the state of this circuit’s law.
Nor does he dispute that our review is limited to plain
Nos. 05-2596 & 05-2633 19
error because he failed to object at trial. He nonetheless
challenges the instruction given by the district court. He
contends essentially that the instruction was so ill-tailored
to the actual facts of the case that the jury reasonably
might not have understood to whom it was directed.
Mr. Wiley argues that reversal is required because, by
virtue of giving an instruction that is not required by this
circuit’s precedent, the district court clearly signaled that
it believed the testimony of the informant witnesses
posed a special danger to the fairness of the trial and that
a supplementary instruction was necessary under
the circumstances. Appellants’ Br. at 12-13. Mr. Wiley
bolsters his contention by pointing to record facts he
believes demonstrate reason for particular apprehension
regarding the informant testimony in this case, includ-
ing a lack of a recording of the controlled buy from Bailey
and the absence of visual contact by investigators dur-
ing the buy.
The instruction actually provided at trial refers gen-
erally to “witnesses who received a benefit from the
government,” and identifies that benefit as the promise of
a reduced sentence. R.75 at 322. The instruction also
states that these witnesses were involved in and pleaded
guilty to an offense arising out of the same occurrence
for which the defendants are on trial. The problem with
this instruction, in Mr. Wiley’s view, is that it deviates
from the pattern instruction in failing to name specifically
the witnesses to whom it should apply and that, on its
facts, it cannot be applied to the informants involved in
this case.
Although the instruction that was given was ill-tailored
to the facts of his case, we are persuaded that any error
was harmless under the circumstances.
20 Nos. 05-2596 & 05-2633
The informant-witnesses in this case are Bailey and
Collier. While the statements of each implicated them-
selves in the drug trade and in some involvement with
Mr. Wiley in that regard, neither was involved directly
in any occurrence for which Mr. Wiley currently stood
trial and neither pleaded guilty to any conduct arising
out of the conspiracy with which Mr. Wiley was charged.
Bailey received a reduced sentence in state court in ex-
change for his cooperation with the investigation and
prosecution of Mr. Wiley; Collier did not receive a sentence
reduction, as stated in the instruction, but was the benefi-
ciary of a decision not to seek an enhancement of his sen-
tence on the basis of a prior felony drug conviction.
Mr. Wiley’s argument first presupposes that, in the
course of this relatively short trial with relatively few
witnesses, the jury would have misunderstood to whom
this instruction was meant to apply. He apparently be-
lieves that a detailed parsing of the instruction would
have confused the jury to such an extent that it would
not have applied its cautions to either Bailey or Collier.
We cannot accept Mr. Wiley’s suggestion of the prob-
able impact of the instruction. We further note that, even
if the jury had concluded that the instruction did not
apply to the informant-witnesses, the ultimate effect
would simply be that the general instruction on credibil-
ity, which asked the jury to consider witnesses’ poten-
tial bias and prejudice in determining the weight to give
their testimony, would be left to carry the day. It is our
duty to consider whether the instructions in their entirety
may have prejudiced the defendant by confusing or
misleading the jury, see United States v. White, 443 F.3d
582, 587-88 (7th Cir. 2006), but Mr. Wiley’s argument
suggests only the remote possibility that the jury could
Nos. 05-2596 & 05-2633 21
have been misled into thinking that the specific informant
instruction did not apply to any witness. If true, that leaves
him in precisely the position this circuit’s precedent allows:
no special instruction on informant credibility.
In addition, both informants admitted the benefits they
received during their testimony. In closing arguments,
Mr. Wiley’s counsel separately drew attention to the
particular credibility problem posed by informant testi-
mony. These methods of informing the jury about the
dangers of such testimony are specifically approved of by
this court as generally providing adequate protection for a
defendant facing informant witnesses. See Cook, 102 F.3d
at 251 (“[T]he argument against giving [a special] instruc-
tion is . . . straightforward: the informant’s motive can be
spelled out by counsel (if it is not admitted on cross-
examination) and considered under the general credibil-
ity instruction.”).
As noted above, we review the instruction to the jury
in its entirety. United States v. Renner, 238 F.3d 810, 812-13
(7th Cir. 2001). Although we conclude that the instruction
was not tailored properly to the facts of the case and
failed to identify specifically the witnesses to whom it
applied, the fact that the general credibility instruction
was given, combined with the absence of any peculiar
facts that would indicate the necessity of a special instruc-
tion, renders any error harmless.
Conclusion
For the foregoing reasons, the convictions of both de-
fendants are affirmed.
AFFIRMED
22 Nos. 05-2596 & 05-2633
WILLIAMS, Circuit Judge, concurring. Like my col-
leagues, I think “it would be inappropriate to adopt a
categorical rule that would, in every case, uphold a find-
ing of probable cause to search a particular location
simply because a suspected drug trafficker resides there.”
Op. at 16. I write separately, however, because I fear
the majority has come dangerously close to doing exactly
that.
Probable cause amounts to a showing “(1) that it is now
probable that (2) contraband, evidence of a crime, or a
fugitive will be on the described premises (3) when the
warrant is executed.” United States v. Grubbs, 126 S. Ct.
1494, 1500 (2006); see Illinois v. Gates, 462 U.S. 213, 238
(1983). The majority concludes that CI-1’s undated ac-
count of seeing Brown cook crack at the residence and law
enforcement’s observation of Poston, an alleged cocaine
trafficker, entering the home and leaving behind a back-
pack, establish a nexus between drug trafficking and the
premises, thereby sidestepping an ill-advised categorical
rule. I cannot be so sure.
In my view, that CI-1 witnessed Brown cook crack at the
residence at an unspecified time is of little probative value.
The warrant affidavit gives no indication whatsoever as
to when Brown was observed cooking crack. And, “[i]n
determining whether probable cause exists, magistrates
should consider, as one factor, the age of the information
in the supporting affidavit.” United States v. Lamon, 930
F.2d 1183, 1187-88 (7th Cir. 1991) (citing United States v.
Batchelder, 824 F.2d 563, 564 (7th Cir. 1987)). Because CI-1’s
single observation might have been several years old, it
could hardly predict whether contraband would be
found on the premises on the day of the search. Admit-
tedly, as the majority notes, where an ongoing pattern of
Nos. 05-2596 & 05-2633 23
criminal activity is involved, staleness is less of a concern.
But, even where ongoing criminal activity is at issue, at
some point an event becomes too old to have meaningful
predictive value. Given the total lack of information
regarding the date of CI-1’s observation, we have no way
of discerning whether that threshold has been reached
here.
Nor does the additional fact that an alleged cocaine
trafficker set foot in the home and left behind a backpack
get the government over the probable cause hurdle. The
officers knew nothing of the backpack’s contents or even
whether it was purposefully left behind. And, given the
three-hour duration of Poston’s stay, it is as likely that
he entered the home for a social call as for a drug trans-
action. In this way, any suspicions regarding the purpose
of Poston’s visit were just that—suspicions—and where
probable cause is concerned, “mere suspicion is not
enough.” United States v. Ingrao, 897 F.2d 860, 862 (7th Cir.
1990). On this record, then, I do not think it can be said
that officers were likely to find evidence of drug dealing
at Brown’s home at the time of the search. (And, notably,
no cocaine, large sums of money, or drug-transaction
records were found during the search.)
In the end, the affidavit did little more than establish that
Brown resided at the home and had probably trafficked
in crack cocaine outside of his home. Because I am not
prepared to conclude that police officers always have
probable cause to search the residence of a suspected drug
trafficker, I would affirm Brown’s conviction not by
concluding that there was probable cause for the
search, but because the police acted in good faith.
24 Nos. 05-2596 & 05-2633
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-6-07