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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the appeal of Stephen Wilson's criminal conviction. The court upheld both Wilson's conviction and his 60-month prison sentence. It found that the search warrant used to obtain evidence, though it contained some false statements, established probable cause even after correcting errors. It also found that the district court did not err in refusing to reduce Wilson's sentence under the sentencing guidelines.

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    Filed: Patrick Fisher

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    26 views7 pages
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the appeal of Stephen Wilson's criminal conviction. The court upheld both Wilson's conviction and his 60-month prison sentence. It found that the search warrant used to obtain evidence, though it contained some false statements, established probable cause even after correcting errors. It also found that the district court did not err in refusing to reduce Wilson's sentence under the sentencing guidelines.

    Original Description:

    Filed: 1998-08-12 Precedential Status: Non-Precedential Docket: 97-5201

    Original Title

    United States v. Wilson, 10th Cir. (1998)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the appeal of Stephen Wilson's criminal conviction. The court upheld both Wilson's conviction and his 60-month prison sentence. It found that the search warrant used to obtain evidence, though it contained some false statements, established probable cause even after correcting errors. It also found that the district court did not err in refusing to reduce Wilson's sentence under the sentencing guidelines.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    26 views7 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding the appeal of Stephen Wilson's criminal conviction. The court upheld both Wilson's conviction and his 60-month prison sentence. It found that the search warrant used to obtain evidence, though it contained some false statements, established probable cause even after correcting errors. It also found that the district court did not err in refusing to reduce Wilson's sentence under the sentencing guidelines.

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    of 7

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    AUG 12 1998

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.

    No. 97-5201
    (D.C. No. 96-CR-114-K)

    STEPHEN W. WILSON,

    (N.D. Okla.)

    Defendant - Appellant.

    ORDER AND JUDGMENT *


    Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

    After examining the briefs and the appellate record, this panel has
    determined unanimously to grant the parties request for a decision on the briefs
    without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case
    is therefore ordered submitted without oral argument.
    Defendant-Appellant, Mr. Stephen Wilson, was charged with conspiracy to
    manufacture marijuana; manufacturing and possession with the intent to distribute
    marijuana; maintenance of a facility to facilitate manufacture and distribution of
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    *

    marijuana; criminal forfeiture; aiding and abetting; and possession of false


    identification documents. Defendant filed a Motion to Suppress evidence
    obtained in three separate searches, alleging that the evidence was seized in
    violation of his Fourth Amendment rights. Defendants motion was granted in
    part and denied in part. See R., Vol. I, Doc. 38 at 18. Defendant then entered
    into a plea agreement which provided that he plead guilty to the manufacture of
    marijuana by production, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B),
    and aiding and abetting, in violation of 18 U.S.C. 2. Also pursuant to the plea
    agreement, the other charges against Defendant were dismissed. See R., Vol. I,
    Doc. 65: Appellees Br. at 2. The district court sentenced Defendant to sixty
    months imprisonment.
    Defendant appeals the district courts denial of his motion to suppress
    evidence seized pursuant to a search warrant. 1 He contends that the warrant was
    obtained through the use of an affidavit which contained false and misleading
    statements. Defendant argues that the court erred in concluding that the warrant
    contained probable cause to search after several false and misleading statements
    Because we find Appellants Pro-Se Supplemental Brief redundant and
    unnecessary, we deny both his Motion for Leave to File a Pro-Se Supplemental Brief and
    his Motion for Leave to File Corrections in his Supplemental Brief. We have reviewed
    Appellants Motion for Substitution of Counsel Due to Ineffective Assistance and find it
    to be without merit. Because we have considered and disposed of the issue Appellant
    complains his counsel has not raised, we deny Appellants Motion for Substitution of
    Counsel.
    1

    -2-

    were redacted from the affidavit. See Appellants Br. at 1. Defendant also
    appeals the district courts refusal to apply U.S. Sentencing Guideline [U.S.S.G.]
    5C1.2 to his sentence even though the presentence report indicated that
    Defendant met the criteria for this adjustment. See R., Vol. II at 12-13.
    We review the district courts determination that a defendant is not eligible
    for a sentence reduction pursuant to section 5C1.2 for clear error. See United
    States v. Roman-Zarate, 115 F.3d 778, 784 (10th Cir. 1997); United States v.
    Acosta-Olivas, 71 F.3d 375, 378 n.3 (10th Cir. 1995); United States v. Adu, 82
    F.3d 119, 124 (6th Cir. 1996). We believe that the district courts
    determination that a defendant is not eligible for the reduction permitted by
    sec[tion] 5C1.2 ought to be governed by the clearly erroneous standard. The
    courts determination . . . will often depend on credibility determinations that
    cannot be replicated with the same accuracy on appeal. Acosta-Olivas, 71 F.3d
    at 378 n.3 (quoting United States v. Rodriguez, 69 F.3d 136, 144 (7th Cir. 1995)).
    The district courts decision in this case was based on Defendants credibility.
    See R., Vol. I, Doc. 65 at 5 (The Court finds the defendant did not provide
    truthful information concerning the offense to the Government before the time of
    the sentencing hearing.). The courts determination that Defendant was not
    volunteering the complete truth about his acts is supported by evidence in the
    record. See id., Vol. I, Doc. 63 at Ex. B (Defendants statement avowing that all
    -3-

    of the marijuana found was intended for personal use for himself, his brother, and
    his father; and that the false documentation found in his possession was to obtain
    rental property); Vol. VIII at 7 (Defendant stipulates to quantity of 800 plants).
    We hold that the decision to refuse Defendant this adjustment to his sentence was
    not clearly erroneous. See United States v. White, 119 F.3d 70, 74 (1st Cir.
    1997); United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997); Adu, 82 F.3d
    at 124-25.
    We must review [a] magistrates finding of probable cause to issue [a]
    search warrant with great deference. United States v. Orr, 864 F.2d 1505, 1508
    (10th Cir. 1988) (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)). We do
    not review a magistrates determination of probable cause de novo; we decide
    whether the evidence viewed as a whole provided a substantial basis for the
    Magistrates finding. United States v. Richardson, 86 F.3d 1537, 1545 (10th
    Cir.), cert. denied, ____ U.S. ____, 117 S. Ct. 588 (1996) (internal quotations
    omitted); see also Gates, 462 U.S. at 236-37; United States v. Mills, 29 F.3d 545,
    547 (10th Cir. 1994). The substantial basis test is satisfied if there is a fair
    probability that evidence of a crime will be found during the search. United
    States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986); see also Gates, 462 U.S. at
    236. When reviewing the denial of a motion to suppress, we view the evidence in
    the light most favorable to the government. See United States v. Villa-Chaparro,
    -4-

    115 F.3d 797, 800-01 (10th Cir.), cert. denied, ___ U.S. ___ , 118 S. Ct. 326
    (1997); United States v. Anderson, 114 F.3d 1059, 1063 (10th Cir. 1997).
    Defendant contends that after the false statements were redacted from the
    affidavit supporting the warrant and the affidavits omissions of fact were
    corrected there was insufficient evidence of probable cause to issue the warrant.
    If a defendant establishes that false statements included in an affidavit supporting
    a search warrant were made knowingly or with reckless disregard for the truth,
    and that the false statement was necessary to the finding of probable cause, the
    evidence seized during the resultant search must be excluded to the same extent
    that exclusion is warranted when probable cause is lacking on the face of the
    affidavit. See United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997)
    (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). Additionally, this
    court has held that the standards of deliberate falsehood and reckless
    disregard set forth in Franks apply to material omissions, as well as affirmative
    falsehoods. Kennedy, 131 F.3d at 1376 (quoting Stewart v. Donges, 915 F.2d
    572, 582 (10th Cir. 1990)). However, to be granted a motion to suppress pursuant
    to the holding in Franks, the defendant must prove that the affidavit at issue
    cannot support a finding of probable cause without the allegedly false
    information. United States v. Valencia, 24 F.3d 1106, 1109 (9th Cir. 1994); see
    United States v. Morehead, 959 F.2d 1489, 1498 (10th Cir. 1992); Stewart, 915
    -5-

    F.2d at 582.
    We agree with the district court that the corrected affidavit was sufficient
    for the magistrate judge to find probable cause to issue a search warrant. See R.,
    Vol. I, Doc. 38 at 2-10. The affiants statement that during an aerial flyover he
    viewed marijuana plants on land where Defendant resided and the other
    statements in the affidavit that Defendant exhibited behavior consistent with those
    involved in the production of marijuana established a fair probability that a crime
    was being committed and support a finding of probable cause. See United States
    v. Emmons, 24 F.3d 1210, 1215 (10th Cir. 1994) (holding that discovery of large
    quantities of marijuana on the defendants property was enough to support finding
    of probable cause); Morehead, 959 F.2d at 1498 (holding that officers
    observations of marijuana plants in the trailer and shop building adjacent to the
    [defendants] residence provided a substantial basis for the conclusion that there
    was a fair probability that evidence of a crime would be found); Mason v. United
    States, 719 F.2d 1485, 1488 (10th Cir. 1983) (holding that report of suspicious
    activity, defendants acting nervously, and the discovery of drug paraphernalia in
    the defendants rooms established probable cause); United States v. Ramos, 923
    F.2d 1346, 1351 (9th Cir. 1991) (Probable cause to justify a search warrant
    exists when there is a sufficient showing that incriminating items are located on
    the property to which entry is sought.).
    -6-

    Defendants claim that the warrant was issued without probable cause
    because it failed to state that his common-law wife was the owner of the real
    property to be searched is not valid. The district court noted that attachments to
    the warrant included the county records noting the owner of the property. See R.,
    Vol. I, Doc. 38 at 7; see also id., Doc. 7 at Ex. 1. Therefore, any omission of
    this information in the affidavit supporting the warrant or the warrant itself is
    immaterial because the issuing magistrate judge had that information at the time
    that he signed the warrant. 2
    We find no error in the district courts conclusions of law or fact.
    Therefore, Defendants conviction and sentence are AFFIRMED.
    Entered for the Court

    Monroe G. McKay
    Circuit Judge

    We also note that the warrant satisfied Oklahoma law. See 22 Okla. Stat. 1223;
    Bauwens v. State, 657 P.2d 176, 178 (Okla. Crim. App. 1983); Doyle v. State, 320 P.2d
    727, 729 (Okla. Crim. App. 1958); Cook v. State, 132 P.2d 349, 350-51 (Okla. Crim.
    App. 1942).
    2

    -7-

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