United States v. Deangelo Wilburn ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1541
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D EANGELO W ILBURN ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 07 CR 50007—James B. Zagel, Judge.
A RGUED A PRIL 8, 2009—D ECIDED S EPTEMBER 14, 2009
Before EASTERBROOK, Chief Judge, and KANNE and
WILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. After police raided his apart-
ment and found it stockpiled with guns, drugs, and cash,
Deangelo Wilburn challenged the affidavit on which
the government’s search warrant was based. In an abun-
dance of caution, the district court held a hearing to
determine if the affidavit contained material omissions,
which, if included in the affidavit, would have caused the
magistrate to deny the detective’s warrant application.
2 No. 08-1541
After hearing the testimony of several witnesses, in-
cluding Wilburn, the district court found that the affidavit
did not contain material omissions and that the warrant
was based on probable cause. Wilburn appeals, claiming
that the district court erred by sustaining several of the
government’s objections to his questions concerning two
confidential informants. Because we find that the
district court did not abuse its discretion in making these
evidentiary rulings, or that any errors were harmless,
we affirm.
I. BACKGROUND
In early November 2006, a “concerned citizen” tele-
phoned the Metro Narcotics Division of the Rockford
Illinois Police Department and reported witnessing many
people entering the residence located at 1341 Charles
Street at all hours of the day and night. The caller
further asserted that these individuals would stay
inside the residence for only one to two minutes. The
tipster concluded by alleging that drugs were being sold
in the upper of two apartments located in the building.
As a result of this call, Detective Richard A. Gambini, Jr.
and his partner periodically watched the Charles Street
residence during the following week. They made the
same observations: multiple people entering and leaving
the residence at all hours of the day and night, who
would remain inside the building for less than two min-
utes. Based upon his training and experience as a police
officer, Detective Gambini believed that drugs were
being sold inside the building. In order to confirm his
belief, he set up a controlled buy.
No. 08-1541 3
Detective Gambini and his partner provided a confiden-
tial informant (“CI”) with buy money, patted him down,
and watched him enter the Charles Street building. Less
than two minutes later, the CI left the building and pro-
duced a bag of crack. The CI informed the detectives
that he had purchased the crack from an unidentified
African-American man in the upper apartment of the
Charles Street residence.
After the controlled buy, the detective appeared before
a magistrate and presented an affidavit detailing: (1) the
statements of the concerned citizen; (2) the results of his
surveillance; and (3) the CI’s report of the controlled buy.
Based upon this evidence, the magistrate issued a search
warrant for the upper apartment in the Charles Street
building.
The search revealed crack, cocaine, marijuana, money,
assorted drug paraphernalia, speed loaders, and two
guns. Deangelo Wilburn, the resident of the upper apart-
ment of the Charles Street building, was present at the
time of the search. He was arrested and charged with
possession with intent to distribute crack, possession of a
firearm by a felon, and possession of a firearm in further-
ance of a drug crime. Wilburn moved to suppress the
evidence obtained during the search of his apartment, or
in the alternative, for a Franks hearing to challenge the
veracity of the allegations in Detective Gambini’s search
warrant affidavit. The district court granted Wilburn’s
motion for a Franks hearing.1
1
The Supreme Court, in Franks v. Delaware, 438 U.S. 154, 155-56
(continued...)
4 No. 08-1541
At the hearing, Wilburn alleged that Detective Gambini
recklessly omitted certain facts from his warrant
affidavit, which, if included, would have caused the
magistrate to deny the application for a search warrant.
Specifically, he claimed that the affidavit failed to state:
(1) that it is impossible to see inside the Charles Street
residence from the outside of the building, making it
impossible to determine whether a visitor entering the
building travels to the lower, or the upper, apartment of
the building; (2) the correct number of doors leading to
the upper apartment from the building’s main hallway;
and (3) the nature of Detective Gambini’s relationship
with the CI. In support of this theory, Wilburn called as
witnesses his sister, who lived in the lower apartment
in the Charles Street building, and his friend, who fre-
quently visited the building. Wilburn also took the
stand and testified that he has never sold drugs. Last,
Wilburn called Detective Gambini to the stand and
(...continued)
(1978), held that when a defendant makes a substantial prelimi-
nary showing that the police procured the warrant to search
his property with intentional or reckless misrepresentations
in the warrant affidavit, and such statements were necessary
to the finding of probable cause, the Fourth Amendment
entitles him to an evidentiary hearing during which he may
challenge the constitutionality of the search.
In United States v. Williams, 737 F.2d 594, 604 (7th Cir. 1984), we
extended Franks’s holding to apply to omissions as well as
misrepresentations, allowing a defendant to challenge
an affidavit by showing that the affiant intentionally or reck-
lessly omitted material information.
No. 08-1541 5
cross-examined him on his relationship with the CI as well
as certain aspects of the “concerned citizen’s” phone call.
At the end of the hearing, the district court found that
Wilburn failed to establish by a preponderance of the
evidence that the affidavit contained material omissions
that would have affected the issuance of the warrant.
And, it denied Wilburn’s motion to suppress the
contents of the search. In order to appeal the suppression
ruling and other aspects of his Franks hearing, Wilburn
entered into a conditional plea agreement. On appeal,
Wilburn asserts that the district court erred by refusing
to allow him to cross-examine Detective Gambini on
certain aspects of the controlled buy and tipster’s call,
which resulted in him being deprived of a fair Franks
hearing.
II. ANALYSIS
A. Evidentiary Rulings and Wilburn’s Franks Hearing
The district court sustained several objections to
Wilburn’s questions to Detective Gambini concerning the
CI and the concerned citizen. Specifically, Wilburn in-
quired about: (1) the exact date of the controlled buy;
(2) whether the detective had previously worked with
the CI; (3) the exact amount of buy money used; and
(4) whether the concerned citizen stated that he had
personally witnessed drug transactions inside the
Charles Street residence. The district court found that the
answers to these questions would tend to reveal the
identity of the CI or were not relevant to whether the
6 No. 08-1541
warrant affidavit had material omissions. Wilburn con-
tends that if the district court had allowed the detective
to answer these questions, Wilburn would have been
able to show that the controlled buy never occurred. He
alleges that these evidentiary rulings deprived him of a
fair hearing, and asks us to remand for a new hearing
with instructions to require the detective to answer
these questions.
Both parties ask us to review for clear error. Clear error
is the proper standard of review if a party is challenging
a district court’s denial of a defendant’s request for a
Franks hearing. See Zambrella v. United States, 327 F.3d 634,
638 (7th Cir. 2003). This is not the case here. The district
court held a Franks hearing, and, on appeal, Wilburn
only argues that the district court erred in sustaining
certain evidentiary objections during that hearing. We
review evidentiary rulings made over a defendant’s
objections for abuse of discretion. See United States v.
Avila, 557 F.3d 809, 819 (7th Cir. 2009).
1. Questions Concerning the Confidential Infor-
mant
The government possesses a limited privilege to with-
hold the identity of a confidential informant from a
criminal defendant. Roviaro v. United States, 353 U.S. 53,
59-60 (1957). This privilege evaporates if a defendant
proves that the disclosure of the informant’s identity
“is relevant and helpful” to his defense “or is essential to
a fair determination of a cause.” Id. at 60-61; cf. United
States v. Jefferson, 252 F.3d 937, 940-41 (7th Cir. 2001) (noting
No. 08-1541 7
that we review a district court’s denial of a motion for
disclosure of a CI’s identity for abuse of discretion and
will affirm if any reasonable person could agree with the
district court’s decision). To determine whether the
government is required to disclose the identity of the
informant, we must balance “the public interest in pro-
tecting the flow of information against the individual’s
right to prepare his defense.” Roviaro, 353 U.S. at 62. In
doing so, we examine “the particular circumstances of
each case, taking into consideration the crime charged,
the possible defenses, the possible significance of the
informer’s testimony, and other relevant factors.” Id.In United States v. Harris, 531 F.3d 507 (7th Cir. 2008), a
factually analogous case, we were faced with a similar
legal question—whether the district court abused its
discretion by refusing to allow a defendant to uncover
the identity of a CI whose statements served as the
primary basis for acquiring a search warrant against the
defendant. In Harris, we noted that the nature of the
CI’s role was an important factor to consider when deter-
mining whether that informant’s identity should be
disclosed. Id. at 515 (citations omitted). We held that
when the confidential informant was a mere “tipster”—
someone whose only role was to provide the police with
the relevant information that served as the foundation
for obtaining a search warrant—rather than a “trans-
actional witness” who participated in the crime charged
against a defendant or witnessed the event in question,
disclosure would not be required. Id. (“In contrast, the CI
here played no part in the transaction charged against
Harris. Though the CI’s reports that Harris was selling
8 No. 08-1541
cocaine in the Goodlet residence and that there were
guns in the residence led to the acquisition of a search
warrant for the home, those activities were not part of
the charges against Harris, which were based on his
possession of crack cocaine on April 20, 2004.”). Given
that the CI in Harris was a “tipster” rather than a
transactional witness, we found that the district court
did not abuse its discretion in denying Harris’s motion
to disclose the CI’s identity. Id.Here, although the CI allegedly purchased crack from
“someone” in the upper apartment at the Charles Street
residence, his only function in Wilburn’s prosecution
was to provide information for obtaining the warrant.
Therefore, he is a “tipster” rather than a transactional
witness to the crimes charged (possession crimes). See
United States v. Bender, 5 F.3d 267, 270 (7th Cir. 1993). As
in Harris, “[a]lthough disclosure of the CI might have
been helpful . . . at the Franks hearing (rather than at
trial), [Wilburn] has not demonstrated that he possessed
a ‘genuine need of informant disclosure that outweighs
the public’s interest,’ ” Harris, 531 F.3d at 515 (citation
omitted), because, among other things, Wilburn was able
to attack the warrant affidavit through other means. He
called witnesses, cross-examined Detective Gambini, and
even took the stand to dispute the affidavit’s contents.
He did not, and does not, articulate how the answers to
the questions regarding the informant would have fur-
thered his efforts in discrediting the warrant affidavit.
Specifically, Wilburn failed to show how learning the
CI’s identity would have outweighed the government’s
No. 08-1541 9
interest in keeping his identity secret. Since Wilburn
did not give any genuine reason requiring the govern-
ment to divulge the CI’s identity, the district court was
within its discretion in sustaining any questions that
tended to reveal it. See id. at 516.
Now that we have established that the district court
was within its discretion in shielding the CI’s identity, our
next inquiry must be whether the questions at issue
would have tended to reveal the CI’s identity. Wilburn
asserts that the district court erred in forbidding him
from pursuing three areas of inquiry: (1) the date of the
controlled buy; (2) the amount of money used in the
controlled buy; and (3) whether Detective Gambini had a
prior relationship with the CI. The first two areas clearly
would tend to reveal the identity of the CI. If Wilburn
learned either the date of the controlled buy, or the
amount of money used in it, he could search his memory
and recall to whom he had sold drugs on that day and/or
for that amount. At minimum, this information would
have helped Wilburn narrow the list of likely candidates
to a few select individuals. So, it was proper for the
district court to prevent these lines of inquiry.
However, we cannot see how learning whether Detective
Gambini had worked with the CI before the Charles Street
controlled buy would have tended to reveal the CI’s
identity. Certainly, had Wilburn continued with that line
of questioning and inquired into the previous testimony of,
or previous controlled buys performed by, the CI, the
informant’s identity might have been tipped. That one
question alone, however, appears insufficient to shed any
10 No. 08-1541
light on the informant’s identity. Further, knowing
whether Detective Gambini worked with the informant
in any prior cases would have aided the court in assessing
the credibility of the CI, given that the detective himself
never vouched for it. This said, the error made in ex-
cluding this singular question is harmless in light of the
other evidence in the affidavit. Detective Gambini testified
that he searched the CI, watched the CI enter the building,
waited less than two minutes for the CI to leave the
building, and searched the CI again, this time finding
drugs. This was the only information contained in the
affidavit regarding the CI. We fail to see how knowing
the past relationship between the detective and the CI
would have shown that the detective omitted material
information from his affidavit which would have
caused the magistrate not to issue the warrant. In sum,
the district court’s evidentiary rulings on Wilburn’s
questions to Detective Gambini regarding the CI were
either within the court’s discretion or did not have a
material affect on the outcome of the proceeding, and
therefore they did not deprive Wilburn of a fair Franks
hearing.
2. The “Concerned Citizen’s” Phone Call
The district court also sustained the government’s
objections to Wilburn’s inquires into whether the con-
cerned citizen told Detective Gambini whether he or she
personally witnessed any drug transactions in the Charles
Street residence. The district court ruled that the answers
to these questions would not be relevant because the
No. 08-1541 11
warrant affidavit did not state or imply that the con-
cerned citizen personally witnessed any such transactions.
As we have discussed, evidentiary rulings are usually
left to the sound discretion of the trial court. See United
States v. Millbrook, 553 F.3d 1057, 1062 (7th Cir. 2009). The
district court has “broad discretion to assess the
relevancy of proffered evidence,” and we will reverse a
district court’s evidentiary ruling only where there has
been a clear abuse of that discretion. United States v.
Fuesting, 845 F.2d 664, 673 (7th Cir. 1988) (citations omit-
ted); see also Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)
(finding that district court can impose reasonable limits
on testimony that is only “marginally relevant”).
As the trial court aptly noted, whether the detective
knew if the tipster personally witnessed any drug deals
or entered Wilburn’s residence is of little import since
the affidavit did not include these facts. Wilburn does not
make clear how this information would have caused
the magistrate to reject the warrant application. The
tipster merely got the ball rolling with his or her phone
call, which led to police surveillance and eventually the
controlled buy. If the tipster had personally witnessed
drug transactions inside the building, the evidence
against Wilburn would have been stronger, but the lack
of this information does not amount to a material
omission from the warrant affidavit because the
affidavit assumes no personal knowledge on the part of
the tipster, and the magistrate issued the warrant in
spite of its absence. So, the district court did not abuse
its discretion in sustaining the government’s objections
to this line of questioning.
12 No. 08-1541
B. The Warrant Was Supported by Probable Cause
Although Wilburn only asks that we remand this
matter for another Franks hearing with instructions re-
quiring the district court to allow him to inquire about the
CI and tipster, it is worth noting that Harris, 531 F.3d
507, also supports the district court’s finding that
probable cause supported the warrant. Cf. United States
v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008) (holding that
great deference must be afforded to the decision of
the judge issuing the search warrant). In Harris, we
upheld the district court’s decision not to suppress a
warrant after it held a Franks hearing where the only
evidence in support of the warrant was: (1) a hotline
tipster’s phone call; (2) a detective’s surveillance report;
and (3) a CI’s allegations that the defendant sold drugs.
Harris, 531 F.3d at 512-14. In this case, the government
presented similar evidence plus the evidence regarding
the controlled buy. So, here, we again conclude that the
district court was correct in finding that adequate
probable cause supported the warrant.
III. CONCLUSION
For the foregoing reasons, we A FFIRM the decision of
the district court.
9-14-09