United States v. Michael Polnett ( 2013 )

FILED
NOT FOR PUBLICATION JUL 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30238
Plaintiff - Appellee, D.C. No. 3:11-cr-05080-RBL-1
v.
MEMORANDUM*
MICHAEL JERMAINE POLNETT,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted July 12, 2013
Seattle, Washington
Before: KLEINFELD, M. SMITH, and N.R. SMITH, Circuit Judges.
Michael Polnett challenges his conviction for selling oxycodone and
illegally possessing a gun and ammunition. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Polnett argues that the warrant to search his apartment was issued without
probable cause and the evidence found in his apartment should have been
suppressed. The probable cause affidavit stated that the police watched Polnett
leave an apartment, number 3, and meet a confidential informant in a parking lot.
The informant got into Polnett’s car, and they drove around while Polnett sold him
oxycodone. Police then followed Polnett back to the apartment and watched him
go back inside apartment number 3. The affidavit described how the officer had
seen Polnett’s Mercedes parked in the designated parking spot for apartment
number 3 “on numerous occasions at all times of the day and night.” Based on
these facts, there was a fair probability that apartment number 3 was Polnett’s, and
that it contained either contraband or evidence of Polnett’s crimes. United States
v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007). The district court did not err in
denying Polnett’s motion to suppress.
Polnett claims that probable cause was lacking because the officer who
signed the affidavit lied to the court when he declared that Detective Hickman
“observed Mike come out of the apartment.” In fact, Detective Hickman could not
actually see the door to apartment number 3 from where he was watching. Rather,
Detective Hickman testified that he could see the “area of Apartment Number 3,”
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as well as the door to apartment number 4, and the stairs. Detective Hickman
testified that from his vantage point, he did not see Polnett come down the stairs, or
come out of the door to apartment number 4, so he assumed that Polnett came out
of apartment number 3. Probable cause does not require proof beyond a reasonable
doubt. We hold that Detective Hickman’s testimony explaining his conclusion that
Polnett came out of apartment number 3 did not defeat probable cause. Kelley,
482 F.3d at 1050 (“[W]e do not ‘flyspeck’ the affidavit supporting a search warrant
through de novo review.”).
Polnett argues that he was entitled to a Franks hearing. The affidavit was
clear that police searched the informant before and after the buys, and the affidavit
was based on the officers’ observations, not the informant’s credibility. Therefore,
failure to disclose impeaching facts about the informant’s credibility was
immaterial, and the district court did not err in denying Polnett’s request for a
Franks hearing. United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir.
2002).
Polnett argues that he was denied his right to a fair trial when the judge
asked a venireman what verdict he reached when he served as a juror on two
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unrelated criminal cases, and the venireman responded “Guilty in both cases.”
Polnett did not object to this question during voir dire, so we review for plain error.
United States v. Mitchell, 502 F.3d 931, 949 n.1 (9th Cir. 2007). Error, if any, was
not “clear or obvious.” United States v. Gonzalez-Aparicio, 663 F.3d 419, 428
(9th Cir. 2011); see also United States v. Guzman, 450 F.3d 627 (6th Cir. 2006).
Polnett claims that he received ineffective assistance of counsel because his
counsel only listened to portions of recorded telephone conversations and did not
give Polnett copies of the recorded conversations or incriminating text messages
Polnett had sent. We reject this claim as premature because the record has not
been sufficiently developed for us to effectively review his counsel’s performance
or what evidence Polnett did or did not receive. United States v. Moreland, 622
F.3d 1147, 1157 (9th Cir. 2010).
AFFIRMED.
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