United States v. Dewayne Wright

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-2869
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United States of America, *
*
Appellee, *
* Appeal from the United
States
v. * District Court for the
* District of Nebraska.
Dewayne Wright, *
*
Appellant. *
___________
Submitted: November 18, 1997
Filed: May 29, 1998
___________
Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.
___________
BEAM, Circuit Judge.
Dewayne Wright was tried and convicted of being a
felon in possession of a firearm in violation of 18
U.S.C. § 922(g). He appeals, challenging (1) the
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district court's denial of his motion to suppress, (2)
the court's failure to compel disclosure of the identity
of the confidential informant, (3) certain evidentiary
rulings, and (4) his sentence of 120 months'
imprisonment. We affirm.
1
The Honorable William G. Cambridge, Chief United States District Judge for
the District of Nebraska.
I. BACKGROUND
On April 10, 1996, Officer Adam Kyle of the Omaha
Police Department received information from a
confidential informant regarding a purchase of crack
cocaine that had allegedly taken place in an apartment
located at 2214 Florence Boulevard. The informant, who
had proved reliable in the past, reported that the
occupant of the apartment, known to him as "Wayne," had
indicated that he would have more crack available for
sale later that evening. Based on this information, Kyle
submitted an affidavit in support of a search warrant
seeking crack cocaine, drug money, and items of venue
from the subject apartment. A county court judge issued
the warrant.
When they searched the apartment that night, officers
found a loaded .38 caliber handgun on top of a television
set, next to a plate of crack cocaine crumbs. Although
the search warrant did not mention firearms specifically,
officers seized the gun because they believed that it was
related to the ongoing drug investigation. In addition,
police ran a record check before leaving the apartment
and learned that the occupant of the apartment, who
turned out to be Dewayne Wright, was a convicted felon.
They were, of course, aware of statutes making it illegal
for a felon to possess a firearm. Wright was arrested
and charged with possession of crack cocaine with intent
to deliver, in violation of state law.
Thereafter, Special Agent Carlton M. Tarver of the
Bureau of Alcohol, Tobacco, and Firearms learned of the
arrest and charged Wright with violating 18 U.S.C. §
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922(g), which prohibits possession of a firearm by a
convicted felon. Wright moved in limine to exclude all
evidence discovered in the apartment search, as well as
any statements he subsequently made to police, arguing
that the warrant was not supported by probable cause. He
also moved to compel disclosure of the identity of the
government's confidential informant. The district court
denied both motions, and Wright was convicted after a
jury trial. The court, applying an enhancement under
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section 2K2.1(b)(5) or 2K2.1(c)(1) of the sentencing
guidelines for possessing the gun in connection with
another offense, determined Wright's offense level to be
30 and sentenced him to 120 months' imprisonment. See
U.S. Sentencing Guidelines Manual §§ 2K2.1(b)(5), (c)(1)
(1997). Wright now appeals the denial of his motion to
suppress and his motions to disclose the confidential
informant, the district court's decision to admit
evidence of the crack cocaine found in the apartment, and
the court's application of the sentencing enhancement.
II. DISCUSSION
A. Motion to Suppress
Wright argues that the affidavit submitted by Officer
Kyle did not contain facts establishing the informant's
reliability or basis of knowledge, and that the affidavit
was therefore insufficient to constitute probable cause
to support the search warrant. Thus, he claims that all
evidence discovered in the search, as well as all
evidence subsequently discovered flowing from the search,
was inadmissible. See Wong Sun v. United States, 371
U.S. 471, 484 (1963).
We review an issuing judge's determination of
probable cause for clear error. See United States v.
Mahler, No. 96-3955, 1998 WL 145910, at *2 (8th Cir.
Apr. 1, 1998). The Supreme Court has recognized that,
because of the Constitution's "strong preference for
searches conducted pursuant to a warrant," an issuing
judge's "determination of probable cause should be paid
great deference by reviewing courts." Illinois v. Gates,
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462 U.S. 213, 236 (1983) (citation omitted).
Accordingly, if we are satisfied that the issuing judge
had a substantial basis to conclude that the search would
uncover evidence of criminal activity, we will find that
the warrant was valid and that the search was conducted
in accordance with the standards of the Fourth Amendment.
See id.
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In order to determine the sufficiency of an affidavit
to support probable cause, we consider the totality of
the circumstances. See id. at 230-37; United States v.
Hyten, 5 F.3d 1154, 1156 (8th Cir. 1993). In this case,
the affidavit explained that a reliable informant had
witnessed a purchase of crack cocaine at the subject
apartment, and that he had heard the occupant state that
he would have more crack for sale later that evening.
The affidavit included the informant's physical
description of the occupant, as well as the informant's
knowledge of the location of the crack cocaine on top of
the television set. Furthermore, the affidavit stated
that the informant was not on parole or probation, that
he was reliable, and that he had proved his reliability
in the past by making controlled purchases under the
direct supervision of Kyle and other officers of the
Omaha Police Department.
The statements of a reliable confidential informant
are themselves sufficient to support probable cause for
a search warrant. See United States v. Pressley, 978
F.2d 1026, 1027 (8th Cir. 1992) (citing McCray v.
Illinois, 386 U.S. 300 (1967)). The reliability of a
confidential informant can be established if the person
has a history of providing law enforcement officials with
truthful information. See United States v. Williams, 10
F.3d 590, 593 (8th Cir. 1993). The affidavit submitted
by Kyle stated, "the [confidential informant] has proven
his/her reliability in the past by making controlled
purchase[s] of crack cocaine under the direct supervision
of affiant officers." Under the totality of the
circumstances, this information adequately established
the informant's track record and hence, his reliability.
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The judge therefore had a substantial basis to conclude
that the search would uncover evidence of a crime. See
Gates, 462 U.S. at 236. We find no clear error in the
determination of probable cause to issue the warrant.
Accordingly, we affirm the district court's ruling that
suppression of the evidence in this case was not
warranted.
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B. Confidential Informant
Wright argues that the district court erred in not
requiring the government to disclose the identity of the
confidential informant. We review the court's decision
for an abuse of discretion. See United States v.
Fairchild, 122 F.3d 605, 609 (8th Cir. 1997). In a
motion to compel disclosure of a confidential informant,
the defendant bears the burden of demonstrating a need
for disclosure. See United States v. Moore, 129 F.3d
989, 992 (8th Cir. 1997) (citing Roviaro v. United
States, 353 U.S. 53, 59 (1957)). The court must weigh
the defendant's right to information against the
government's privilege to withhold the identity of a
confidential informant, see id., and disclosure should
not be ordered unless it is deemed "vital to a fair
trial," United States v. Bourbon, 819 F.2d 856, 860 (8th
Cir. 1987).
Although the informant in this case made a controlled
purchase of crack cocaine in Wright's apartment, Wright
was not convicted of a drug offense; he was convicted of
being a felon in possession of a firearm. The weapons
charge upon which Wright was convicted was based on the
fact that, in the course of executing the search warrant,
officers found a firearm in Wright's possession and
obtained Wright's admission that he possessed the firearm
because of the risks inherent in dealing crack cocaine.
Under these circumstances, the informant could not offer
any evidence, exculpatory or otherwise, bearing on the
offense of which Wright was convicted. Wright has
therefore not satisfied his burden to show that
disclosure was vital to the fairness of his trial. We
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find no abuse of discretion in the district court's
denial of Wright's pre-trial motion to disclose the
identity of the confidential informant.
Additionally, Wright claims that, because he was
subject to an enhancement of his sentence under section
2K2.1(b)(5) or 2K2.1(c)(1) for possessing the firearm in
connection with another offense, the district court
should have ordered disclosure at least for the purpose
of determining the propriety of an enhancement. We
disagree. The court found that Wright had used the gun
in connection with the offenses of
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distribution and possession with intent to distribute
crack cocaine. Again, that finding was based on Wright's
admission that he possessed the weapon to protect against
the inherent risks of dealing in crack cocaine. Any
information the confidential informant might have offered
would have had no effect on the court's conclusion in
this respect. We therefore affirm the denial of Wright's
renewed motion to disclose the confidential informant at
sentencing as well.
C. Evidence
Wright also asserts that the district court erred in
allowing the government to introduce evidence of crack
cocaine found during the search of his apartment. While
we do not believe that the district court abused its
discretion in admitting the evidence, see, e.g., United
States v. Smith, 49 F.3d 475, 478 (8th Cir. 1995)
(finding no abuse of discretion in the district court's
admission of drug evidence "closely and integrally
related to" the central issue of whether the defendant
possessed the firearm), we find that it was harmless
error in any event, in light of the overwhelming other
evidence of guilt. See United States v. Hafiz, 129 F.3d
1011, 1012 (8th Cir. 1997).
D. Sentencing
Finally, Wright submits that mere possession of a firearm near narcotics cannot
constitute possession "in connection with" another offense to qualify for a sentence
enhancement under section 2K2.1(b)(5) or 2K2.1(c)(1), and that his enhanced sentence
of 120 months' imprisonment should therefore be vacated. Without further discussion,
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we point out that the district court did not apply the enhancement to Wright's conduct
based merely on evidence of proximity of the firearm to narcotics. Rather, the court
relied on Wright's admission that he possessed the gun in connection with narcotics
trafficking. We find no error in the application of the section 2K2.1(b)(5) or section
2K2.1(c)(1) enhancement to a defendant who admits that he possessed the firearm in
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connection with another offense. Accordingly, we affirm the 120-month sentence
imposed by the district court.
We have considered the other arguments advanced by
Wright and we find them to be without merit.
III. CONCLUSION
For the foregoing reasons, we affirm Wright's
conviction and sentence.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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