United States v. Nicholas Jones ( 2023 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1816
___________________________
United States of America
Plaintiff - Appellee
v.
Nicholas Dwayne Jones
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa
____________
Submitted: March 15, 2023
Filed: July 24, 2023
____________
Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
____________
GRASZ, Circuit Judge.
A jury found Nicholas Dwayne Jones guilty of conspiracy to distribute
cocaine, possession of a firearm in furtherance of a drug trafficking crime, and
unlawful possession of a firearm as a felon. On appeal, Jones argues the district
court1 erred by denying various pretrial motions as well as his motion for judgment
of acquittal. He also argues the government violated his rights under the Fifth
Amendment’s due process clause and the Sixth Amendment’s confrontation clause.
We affirm.
I. Background
The Mid-Iowa Narcotics Enforcement (“MINE”) Task Force conducted four
controlled buys of narcotics from Jamie Ellis with the help of a paid confidential
informant (“CI”), the first of which occurred on March 10, 2020. The MINE Task
Force equipped the CI with a recording device and surveilled the interactions
between the CI and Ellis. Although Ellis was the initial target of the investigation,
events that transpired during the controlled buys led the MINE Task Force to suspect
Jones and his wife Nashia Jones were involved in illegal drug activity, and they
became the primary targets of the investigation.
A. Search Warrant Affidavit and Search
Based on information gathered from the controlled buys and associated
investigation, Adam Jacobs, a Deputy Sheriff with the Dallas County Sheriff’s
Office assigned to the MINE Task Force as a detective, sought a search warrant for
Jones, Nashia, their residence, and two vehicles. Detective Jacobs’s affidavit in
support of the search warrant stated he had “received information from a [CI] who
stated that a female named Nashia Jones and a male named Nicholas Jones were
involved in the sale and distribution of cocaine in the Des Moines Metro Area.”
Detective Jacobs’s affidavit then went on to describe in detail the controlled buys on
March 18, March 31, and April 29, 2020.
1
The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.
-2-
Detective Jacobs stated that during a controlled buy that took place on March
18, the CI arrived at the buy location and made contact with Ellis; 2 Ellis then made
contact with someone else; later, detectives observed Jones and Nashia arrive in a
red Dodge Challenger; Nashia briefly went inside the buy location; after Nashia
returned to the vehicle, Jones and Nashia left the buy location; the CI stated that she
obtained the agreed-upon amount of cocaine from Ellis only after Ellis had met with
Nashia; and the MINE Task Force surveilled Jones and Nashia returning to their
residence. Detective Jacobs detailed a similar series of events during the next
controlled buy, but this time Nashia arrived alone in a “silver Chevrolet Avalanche.”
As for the controlled buy on April 29, Detective Jacobs again relayed similar events
to March 18 with a slight exception: surveillance showed Jones and Nashia were at
the buy location a short time before the CI arrived.
In conjunction with these observations, the affidavit included specific details
about the controlled buys. For example, in relation to the March 18 buy, Detective
Jacobs stated: “The confidential informant stated after arriving at the predetermined
buy location he/she met with [Ellis]. The confidential informant then made contact
with [Jones] and Nashia. A short time later the confidential informant stated [Ellis]
stated, ‘She is here.’”
Detective Jacobs also stated that, based on his training and experience, he
knew “drug users and dealers of controlled substances keep tools associated with
their illegal activity at their residence, in outbuildings on the same property lot, on
their persons, and in the vehicles they own or operate.” The affidavit also included
an attachment detailing reasons the CI was considered reliable, including that the
informant had supplied reliable information in the past that had helped supply the
basis for a search warrant and that led to the making of an arrest.
2
Detective Jacobs did not include Ellis’s name in the search warrant affidavit,
referring to him only as an “unwitting informant.” Detective Jacobs also did not
provide the specific dates of the controlled buys, instead using approximate date
ranges. For simplicity, we refer to Ellis by name and the specific dates of the
controlled buys as supported by the trial record.
-3-
After obtaining the search warrant, Detective Jacobs and a team searched
Jones’s residence on May 4, 2020. A team member testified that after the police
knocked on the front door and announced their presence and the search warrant, he
saw a male—who he identified at trial as Jones—and a female in a window above
the front door. The team member testified that the room where he saw the pair was
the “master bedroom.” During the search, officers seized approximately $154,000
in cash, handwritten notes believed to detail the amounts and prices of narcotics
purchases, scales, several firearms, and ammunition, as well as marijuana and a
marijuana grinder. One member of the search team also testified specifically about
the two firearms he found in the bedroom.
B. Pretrial Motions and Trial Evidence
A grand jury indicted Jones on three criminal charges: (1) conspiracy to
distribute cocaine, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 846; (2) possession of
a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i); and
(3) possession of a firearm as a prohibited person, 18 U.S.C. §§ 922(g)(1) and (g)(3),
and 924(a)(2). While the case proceeded toward trial, Jones filed several
unsuccessful motions to prevent the government from introducing certain evidence.
Relevant to this appeal are Jones’s motion to suppress evidence, motions in limine,
and renewed motion to suppress.
Jones filed a motion to suppress the evidence seized during the May 4 search,
arguing the search warrant failed to establish probable cause and was based on false
information. However, based on its review of the evidence supporting the affidavit,
the district court found that probable cause supported the search of Jones’s residence.
Jones later filed a renewed motion to suppress and a request for a Franks3 hearing.
3
See Franks v. Delaware, 438 U.S. 154, 155–56 (1978) (holding, “where the
defendant makes a substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by the affiant
in the warrant affidavit, and if the allegedly false statement is necessary to the finding
-4-
In this motion, Jones took issue with specific statements Detective Jacobs made in
the affidavit. Again, the district court denied the motion. During the suppression
hearing, however, the district court identified four specific inaccuracies with which
it was “concerned and frustrated.” These included:
1. Detective Jacobs’s statement that he had received information from a CI
that Jones and Nashia were involved in the sale and distribution of cocaine.
The government conceded this statement was inaccurate.
2. The allegation that Ellis said “She is here,” in reference to Nashia’s arrival
at the controlled-buy location. The audio recordings showed this was
inaccurate.
3. The affidavit described Nashia’s Chevrolet Avalanche as silver. The
vehicle was actually tan.
4. The affidavit stated the CI made contact with Jones and Nashia. The
government conceded this statement was inaccurate because the CI only
had contact with Ellis, not Jones or Nashia.
Despite the inaccuracies, the district court did not grant Jones’s motion
because it concluded that, even if the statements were excluded, there was still
probable cause to support the search. The district court relied on the affidavit’s
recitation of how Jones and Nashia would arrive at the controlled-buy location while
the CI was waiting for drugs, and the CI would complete the purchase immediately
afterwards. Thus, the district court determined a full Franks hearing was not
warranted.
Beyond the motion to suppress, Jones filed several motions in limine. The
first was to prevent the government from introducing Jones’s prior felony records.
In particular, Jones took issue with admitting a 2011 Iowa conviction for possessing
a controlled substance with intent to deliver. The second and third motions in limine
of probable cause, the Fourth Amendment requires that a hearing be held at the
defendant’s request”).
-5-
were aimed at preventing the government from using statements by the CI or Ellis
in the audio and video recordings. All these motions were denied.
At trial, the jury heard evidence about events associated with the controlled
buys, including clips of the recordings between the CI and Ellis, and MINE Task
Force detective testimony about surveillance. For example, Detective Jacobs
testified that Jones became a person of interest during the first controlled buy on
March 10. Detective Jacobs testified that when the CI arrived at Ellis’s house to
purchase the drugs, Ellis did not have the drugs. Ellis made a phone call and, shortly
thereafter, a red Dodge Challenger arrived. MINE Task Force detective Alicia
Nuvolini testified she saw a woman get out of the passenger side of the Challenger,
go inside the house for a short time, and then return to the car. The CI completed
the buy after the Challenger’s arrival. At that time, MINE Task Force investigators
did not know the identities of the individuals in the Challenger. But they later
identified Jones as the vehicle’s owner and Nashia as the passenger who entered the
house.
MINE Task Force detectives testified that during the three subsequent
controlled buys, investigators surveilled both Ellis’s residence and Jones’s
residence. Viewing the evidence in the light most favorable to the jury’s verdict,
MINE Task Force surveillance showed Ellis was only selling drugs to the CI after
either Jones and Nashia together or just Nashia stopped at the controlled-buy
location. Other relevant evidence presented to the jury is discussed within the
analysis below.
II. Analysis
We address the issues raised by Jones in the following order: (A) the denial
of his motions to suppress and for a Franks hearing; (B) the denial of his motion in
limine to prevent admission of Jones’s 2011 state conviction; (C) the denial of his
motion for judgment of acquittal; and (D) Jones’s constitutional arguments.
-6-
A. Motions to Suppress and Franks Motion
On appeal, Jones argues the district court erred by denying his motions to
suppress and his motion for a Franks hearing. He reiterates his argument that the
district court should have granted his motions because the warrant was not supported
by probable cause. “Reviewing the denial of a motion to suppress, this court reviews
‘legal conclusions de novo and factual findings for clear error.’” United States v.
Morris, 915 F.3d 552, 555 (8th Cir. 2019) (quoting United States v. Woods, 747 F.3d
552, 555 (8th Cir. 2014)). “Reversal of a decision to deny a motion to suppress is
warranted only if the district court’s decision is unsupported by substantial evidence,
based on an erroneous interpretation of applicable law, or, based on the entire record,
it is clear a mistake was made.” United States v. Johnson, 848 F.3d 872, 876 (8th
Cir. 2017) (internal quotation marks omitted). “We review the district court’s refusal
to grant a Franks hearing for abuse of discretion.” United States v. Patterson, 68
F.4th 402, 414 (8th Cir. 2023).
The Fourth Amendment states, “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV. “Probable
cause to issue a search warrant exists if, in light of the totality of the circumstances,
there is ‘a fair probability that contraband or evidence of a crime will be found in a
particular place.’” Z.J. ex rel. Jones v. Kan. City Bd. of Police Comm’rs, 931 F.3d
672, 686 (8th Cir. 2019) (quoting United States v. Shockley, 816 F.3d 1058, 1061
(8th Cir. 2016)). As we have said, “[t]here must be evidence of a nexus between the
contraband and the place to be searched” to support a search warrant application.
Johnson, 848 F.3d at 878 (alteration in original) (quoting United States v. Colbert,
828 F.3d 718, 726 (8th Cir. 2016)). “Factors to consider in determining if a nexus
exists include ‘the nature of the crime and the reasonable, logical likelihood of
finding useful evidence.’” Id. (quoting same).
If a defendant asserts a search warrant was invalid because of false statements
in the supporting affidavit, he may be entitled to a Franks hearing. See Patterson,
-7-
68 F.4th at 414. But first, he must “satisf[y] two criteria: (1) ‘a substantial
preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant’ in the supporting
affidavit, and (2) ‘the allegedly false statement is necessary to the finding of probable
cause.’” Id. (quoting Franks, 438 U.S. at 155–56).
The issue in this case comes down to whether the statements the district court
identified as inaccurate were necessary to the finding of probable cause. We
understand the heart of Jones’s argument to be that when the false statements in the
affidavit are disregarded, there was no longer a nexus between Jones’s residence and
the alleged contraband. Although we share the district court’s concern and
frustration regarding the “inaccuracies,” we agree with its conclusion that the
statements were not necessary to the finding of probable cause and a nexus between
Jones’s residence and the contraband.
With the exception of the tan/silver vehicle mix-up, the inaccurate statements
generally relate to whether the CI had personal contact with Jones or Nashia, and
whether Ellis confirmed to the CI the pair’s arrival. Without these statements the
affidavit still contained information about the timing of the CI’s arrival at the
controlled-buy location, Jones and Nashia’s arrival (and once just Nashia) at the
same location, and the CI’s purchase of drugs after Jones or Nashia arrived. Jones
and Nashia were also surveilled returning to their residence after visiting the
controlled-buy location. These allegations, along with the statements of the affiant
that it is common for drug dealers to keep drugs or other evidence of drug
transactions at their residence, is sufficient to support a common sense inference
there was a “fair probability” law enforcement would find “contraband or evidence
of a crime” at Jones’s residence. Z.J., 931 F.3d at 686; cf. United States v. Keele,
589 F.3d 940, 944 (8th Cir. 2009) (concluding evidence of illegal drug activity “was
linked to” the defendant’s “residence through the experienced opinion of [an agent]
that drug manufacturers often keep contraband and proceeds at their personal
residences”). Thus, the district court did not abuse its discretion by denying Jones’s
motion for a Franks hearing.
-8-
Beyond the issue of the inaccurate statements, Jones argues the search warrant
was still not supported by probable cause. Jones claims the facts establishing
probable cause were based on unreliable informants and hearsay. This argument is
without merit. First, “[t]he statements of a reliable confidential informant are
themselves sufficient to support probable cause for a search warrant.” United States
v. Wright, 145 F.3d 972, 975 (8th Cir. 1998). The affiant included an attachment
that detailed why the CI was reliable, and Jones presents nothing beyond the
conclusory allegation that the CI was not reliable. Nor is there a rule excluding
hearsay from the probable cause analysis. See Illinois v. Gates, 462 U.S. 213, 243–
45 (1983). Thus, we find this argument unpersuasive.
For these reasons, we see no reason to conclude the district court’s denial of
the motion to suppress was unsupported by substantial evidence or was based on any
other reversible error. See Johnson, 848 F.3d at 876.
B. Motion in Limine
On appeal, Jones argues the district court erred when it admitted, under
Federal Rule of Evidence 404(b), evidence of his 2011 conviction for possessing a
controlled substance with intent to deliver. “We review the admission of evidence
under Rule 404(b) for abuse of discretion.” United States v. Riepe, 858 F.3d 552,
559 (8th Cir. 2017).
Rule 404(b)(1) states: “Evidence of any other crime, wrong, or act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” For example, courts
should not admit evidence of past convictions that serve only to prove a defendant
had a propensity to commit criminal acts. See Riepe, 858 F.3d at 560 (“This Court
has consistently construed Rule 404(b) as a rule of inclusion, precluding only
evidence that is relevant solely to the defendant’s character.” (quoting United States
v. Aranda, 963 F.2d 211, 215 (8th Cir. 1992)). This, Jones argues, is the precise
-9-
problem with admitting the 2011 Iowa conviction—it served only to prove whether
or not he had a propensity to commit criminal acts.
The government responds that the felony conviction was admissible for two
reasons. First, it was admissible to establish two elements of the felon in possession
of a firearm charge—he was convicted of a felony and he knew of such conviction.
Second, it was admissible under Rule 404(b)(2), which permits prior-bad-acts
evidence to be used “for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” We have held that, to be admissible under Rule 404(b):
The evidence must be (1) relevant to a material issue raised at trial,
(2) similar in kind and not overly remote in time to the crime charged,
(3) supported by sufficient evidence to support a jury finding that the
defendant committed the other act, and (4) of probative value not
substantially outweighed by its prejudicial effect.
United States v. Monds, 945 F.3d 1049, 1052 (8th Cir. 2019).
After carefully considering these factors, we conclude the district court did
not abuse its discretion in admitting this evidence. Jones’s prior conviction was both
relevant to the elements of the felon in possession of a firearm charge, as well as
“relevant to the material issue of [Jones’s] state of mind.” United States v. Davis,
867 F.3d 1021, 1029 (8th Cir. 2017). Indeed, “[i]t is settled in this circuit that a prior
conviction for distributing drugs, and even the possession of user-quantities of a
controlled substance, are relevant under Rule 404(b) to show knowledge and intent
to commit a current charge of conspiracy to distribute drugs.” Id. (quoting United
States v. Horton, 756 F.3d 569, 579 (8th Cir. 2014)).
C. Sufficiency of the Evidence
Jones filed a motion for judgment of acquittal. “We review de novo
challenges to the sufficiency of the evidence, viewing ‘the evidence in the light most
-10-
favorable to the guilty verdict’ and ‘granting all reasonable inferences that are
supported by that evidence.’” United States v. Garbacz, 33 F.4th 459, 466 (8th Cir.
2022) (quoting United States v. Johnson, 745 F.3d 866, 869 (8th Cir. 2014)). We
will reverse “only if no reasonable jury could have found the defendant guilty
beyond a reasonable doubt.” United States v. Lussier, 844 F.3d 1019, 1023 (8th Cir.
2017).
First, Jones argues there was not sufficient evidence for conspiracy to
distribute. “To convict an individual of conspiracy to distribute a controlled
substance under 21 U.S.C. § 846, the Government must prove (1) a conspiracy to
distribute [the controlled substance] existed; (2) the defendant knew about the
conspiracy; and (3) the defendant knowingly became a part of the conspiracy.”
United States v. Lewis, 976 F.3d 787, 794 (8th Cir. 2020) (quoting United States v.
Bradshaw, 955 F.3d 699, 705 (8th Cir. 2020)). Viewing the evidence in the light
most favorable to the jury verdict, there was a reasonable inference from the facts
and circumstances that there was a conspiracy between Ellis and Jones to distribute
cocaine of which Jones knowingly became a part. See United States v. Slagg, 651
F.3d 832, 840 (8th Cir. 2011) (“An agreement to join a conspiracy ‘need not be
explicit but may be inferred from the facts and circumstances of the case.’” (quoting
United States v. Rodriguez-Mendez, 336 F.3d 692, 695 (8th Cir. 2003)). On three
different occasions, the MINE Task Force surveilled Jones making a stop at Ellis’s
residence before Ellis completed a drug sale transaction with the CI. Once, it appears
that Ellis made a phone call to Jones while the CI was present. Furthermore, the
search of Jones’s residence produced significant evidence of drug distribution: more
than $150,000 cash, firearms, ammunition, scales, notes reflecting drug transactions,
and other drug paraphernalia.
Second, Jones argues there was insufficient evidence for the unlawful
possession of a firearm charge. In particular, he says there was no evidence he
possessed the firearms because the firearms belonged to Nashia. In advancing this
argument, however, Jones ignores the evidence suggesting he constructively
possessed the guns. See United States v. Garrett, 648 F.3d 618, 622 (8th Cir. 2011)
-11-
(stating possession can be either actual or constructive). “Constructive possession
exists when a person ‘has dominion and control over the firearm itself or over the
premises in which the firearm [is] located.’” United States v. Whitehead, 995 F.3d
624, 627 (8th Cir. 2021) (alteration in original) (quoting United States v. Ellis, 817
F.3d 570, 576 (8th Cir. 2016)). Law enforcement found two firearms in Jones’s
bedroom: a 45-caliber handgun was between the mattress and the box-spring and an
“AK-style rifle” was “under the bed, beneath where the handgun and the rifle
magazines were located.” The firearms were located on the west side of the bed, the
same side where Jones was found. In addition, one agent testified that the east side
of the bedroom had items that were more consistent with a female’s use including
jewelry boxes. This evidence was sufficient for a reasonable jury to find Jones
constructively possessed the firearms.
Lastly, Jones argues there was insufficient evidence to support the forfeiture
of the cash seized by law enforcement during the search of his residence. This court
reviews the district court’s factual findings for clear error, and we review de novo
the conclusion of whether the facts make the seized currency subject to forfeiture.
United States v. Dodge Caravan Grand SE/Sport Van, 387 F.3d 758, 761 (8th Cir.
2004). Jones argues there was no substantial connection between the seized
currency and the drug offense because there was insufficient evidence that he was a
part of a conspiracy—but we’ve already resolved that issue against him. Then he
says in a conclusory fashion that the evidence found at Jones’s home was not
sufficient to establish a nexus. Viewing the evidence in the light most favorable to
the jury verdict, it showed Jones had a reported income of $21,463 in 2018, had not
filed taxes in 2019, that he conspired with Ellis to distribute drugs, stacks of cash
were found hidden in his home, and an expert testified drug-dealers generally avoid
banks and instead store their money in their home, a stash location, or with a trusted
person. Therefore, Jones’s argument is meritless.
-12-
D. Constitutional Rights
Jones also presents several arguments that his constitutional rights were
violated during the trial. We address them each in turn, but conclude they are
without merit.
Jones argues the government violated his due process rights when it disclosed
certain evidence shortly before his then-scheduled August 2021 trial. Jones styles
this as a violation of his rights under Brady v. Maryland, 373 U.S. 83 (1963). We
discern no Brady violation because Jones has not identified on appeal any evidence
he was unable to use at trial, which ultimately took place in December 2021. See
United States v. Jeanpierre, 636 F.3d 416, 422 (8th Cir. 2011) (providing, “due
process is satisfied if the information is furnished before it is too late for the
defendant to use it at trial” (quoting United States v. Almendares, 397 F.3d 653, 664
(8th Cir. 2005)).
Next, Jones argues the government violated his rights under the Confrontation
Clause of the Sixth Amendment when the government indicated before trial that the
CI would testify, but ultimately did not. Because the CI did not otherwise testify,
we understand his argument to hinge on the admission of the recordings of the CI’s
interactions with Ellis during the controlled buys. Assuming this argument is
properly preserved for appeal, we conclude it fails because the CI’s statements in the
recordings were not testimonial. See United States v. White, 962 F.3d 1052, 1055
(8th Cir. 2020) (providing the limitations of the Confrontation Clause “appl[y] only
to statements that are testimonial”). Indeed, Jones has not argued on appeal that
these statements were testimonial. Instead, he focuses on what he perceives as the
government’s lackluster effort to secure the CI’s in-person testimony. But there is
no rule the government must call every witness it identified before trial. Moreover,
if the CI had some crucial evidence that could have helped Jones, nothing prevented
Jones from trying to secure the testimony.
-13-
Lastly, Jones argues that the government violated his due process rights by
not laying a proper foundation for the controlled-buy recordings because there was
no evidence the CI consented to the recordings. For this reason, he argues the
recordings were merely evidence of a warrantless intrusion on the CI and Ellis—i.e.,
the recordings violated their Fourth Amendment rights. These arguments were not
raised below; therefore, they would be reviewed for plain error. See United States
v. Diaz-Ortiz, 927 F.3d 1028, 1030 (8th Cir. 2019). However, Jones does not have
standing to make this argument because it asserts only the Fourth Amendment rights
of others and not himself. See United States v. Davis, 943 F.3d 1129, 1132 (8th Cir.
2019) (citing Alderman v. United States, 394 U.S. 165, 174 (1969)). 4
III. Conclusion
The judgment of the district court is affirmed.
______________________________
4
While his appeal was pending, Jones sent a letter alerting the court to the fact
he wanted his sentence challenged on the basis that he had erroneously been
subjected to the career offender enhancement. “It is Eighth Circuit policy not to
address issues raised by a defendant in pro se filings with this Court when he is
represented by counsel.” United States v. Shaw, 965 F.3d 921, 929 n.4 (8th Cir.
2020) (quoting United States v. Carr, 895 F.3d 1083, 1090 (8th Cir. 2018). Thus,
we decline to consider this additional issue raised by Jones.
-14-