                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3889
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Randy Scott Skarda

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the District of North Dakota - Bismarck
                                   ____________

                          Submitted: November 14, 2016
                            Filed: December 22, 2016
                                 ____________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                          ____________

BEAM, Circuit Judge.

      Randy Scott Skarda appeals his convictions for distribution of
methamphetamine, conspiracy to distribute methamphetamine, distribution of
cocaine, and possession of a firearm by a drug user, arguing that the district court1

      1
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
erred in denying his motion to suppress and his motion for a new trial. For the
reasons discussed below, we affirm.

I.    BACKGROUND

       Lynn Starr was arrested at her home in Ryder, North Dakota, on October 7,
2013, for drug trafficking offenses. During a search of her home, police found
marijuana, methamphetamine, scales, plastic bags, and a cell phone. FBI Special
Agent Coulter interviewed Starr and reviewed the list of contacts in her cell phone.
Starr identified Skarda, who was listed in her cell phone, as one of her long-time
methamphetamine suppliers. She was unable to provide Skarda's address but gave
a description of the property. She described Skarda's residence as a farmstead or
homestead with multiple buildings, a large, metal quonset-type building next to the
residence, and equipment on the property. The residence was a one bedroom metal
structure with water and electricity. She also noted that the home was undergoing
construction. Specifically, Skarda had poured a foundation, built walls, and was
beginning to insulate the walls and complete woodwork. Starr acknowledged that the
property was possibly Skarda's parents' homestead.

      Based on Starr's testimony, Coulter applied for a search warrant for property
in Keene, North Dakota, associated with Skarda. The warrant application listed the
premises as "10952 32nd Street Northwest, Keene, North Dakota" (the 10952
address). The physical address came from North Dakota Department of
Transportation records, which listed the 10952 address as Skarda's residence. The
affidavit accompanying the application also contained testimony from a confidential
source (CS-5), who stated that he or she purchased methamphetamine from both
Skarda and Starr. CS-5 purchased methamphetamine from Skarda at Skarda's home,
where he kept the methamphetamine in a quonset on his property. Magistrate Judge
Klein signed the search warrant for the 10952 address at 4:15 p.m. on October 7,
2013.

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       Before executing the warrant, police officers gathered to brief the operation.
McKenzie County Deputy Sheriff Johansen, who lived near Skarda's residence and
knew the area, noticed that the address on the search warrant was not Skarda's
residence and notified Coulter. Johansen then contacted the McKenzie County
dispatch and retrieved the correct address for Skarda, which was 10841 28th Street
Northwest, Keene, North Dakota (the 10841 address). Johansen and FBI Special
Agent Bennett then went to the 10841 address to ensure the property matched Starr's
description. Bennett identified a metal structure, equipment on the property, and a
residence under construction. Bureau of Indian Affairs Special Agent White viewed
the 10841 address on Google Earth, noting a residence under construction and a
quonset, which also confirmed that Starr's testimony was describing the 10841
address. Following this verification, at 6:02 p.m. on October 7, 2013, Coulter called
the law clerk for another magistrate judge who was able to connect him to Magistrate
Judge Klein at approximately 6:16 p.m. After Magistrate Judge Klein placed Coulter
under oath, Coulter explained that the address on the search warrant was incorrect and
told her that the correct address was 10841 28th Street Northwest. He explained that
the 10952 address came from public records that he mistakenly believed to be correct
when he submitted the warrant application. However, local police officers familiar
with Keene noticed the mistake. Magistrate Judge Klein instructed Coulter to write
in the correct address and initial the changes.

      Police officers executed the search warrant at the 10841 address at 6:58 p.m.
on October 7, 2013. They found drugs, drug-related items, cash, and firearms. In the
quonset they found a firearm, ammunition, 138 grams of marijuana, small amounts
of cocaine and methamphetamine, a glass smoking device, hypodermic needles and
syringes, and plastic bags. In the house they found numerous firearms, $85,000 in
cash, and a red bag containing methamphetamine and a glass smoking device that
belonged to Skarda's girlfriend, Tana Boots. While the search was ongoing, Skarda
and Boots arrived at the residence. Shots were fired, and Skarda was injured. Law

                                         -3-
enforcement then searched Skarda's vehicle and found a firearm, approximately
$21,000 in cash, and Boots' cellular phone. A copy of the search warrant with
Coulter's handwritten and initialed changes was left at the residence.

       On October 10, 2013, Magistrate Judge Klein issued a supplemental search
warrant reciting the events that occurred on October 7 regarding the incorrect address
and handwritten changes on the search warrant. However, she inadvertently stated
that the change request was made on October 8. On October 25, 2013, the
government filed a Rule 36 motion to correct the supplemental search warrant so that
it correctly noted the date Coulter requested the change. Magistrate Judge Klein
granted the motion. On March 27, 2014, Skarda was charged with distribution of
methamphetamine, conspiracy to distribute methamphetamine, distribution of
cocaine, possession of a short-barreled rifle, and possession of a firearm by a drug
user. Prior to trial, Skarda filed a motion to suppress, arguing that the search of his
property on October 7, 2013, was illegal because the warrant was not supported by
probable cause. Skarda also objected to Magistrate Judge Klein's failure to record the
telephone conversation with Coulter, arguing that it violated Rules 41 and 4.1 of the
Federal Rules of Criminal Procedure. The district court denied the motion holding
that "the premises to be searched were described with sufficient particularity and
adequate probable cause existed to support the issuance of the search warrant." The
district court further held that although Magistrate Judge Klein violated Rule 41,
suppression was not the appropriate remedy. Finally, the district court held that "even
if probable cause did not exist to issue the warrant in this case, the 'good faith
exception' to the exclusionary rule . . . would save the evidence seized from being
suppressed."

       At trial, Starr testified that she had been purchasing methamphetamine weekly
from Skarda for nine to ten months prior to her arrest. Several purchases occurred at
Skarda’s home, and the three ounces of methamphetamine found when she was
arrested in October 2013 came from Skarda. Shelly Suelzle, who was arrested in

                                         -4-
October 2013 for possession of methamphetamine, cocaine, and marijuana, testified
that she obtained methamphetamine and cocaine from Skarda at her home in North
Dakota. Frank Black testified that he purchased methamphetamine from Skarda at
Skarda's residence from 2012 to 2014. He also stated that a week before trial, while
gambling at a casino in North Dakota, Skarda sat down next to him, cursed at him,
and told him that he should have kept his "F'ing mouth shut." As Black was leaving
the casino, Skarda remarked, "You better go home." The district court allowed
Black's testimony regarding the casino encounter as evidence of conscious guilt,
despite Skarda's objection. Starr's sons, Anthony and Blue Sky Starr, also
participated in the distribution of methamphetamine. Blue Sky went with Starr to
meet Skarda at Skarda's residence on at least two occasions. Thus, Blue Sky was able
to identify Skarda's residence from photographs admitted at trial.

       The jury found Skarda guilty of all counts except possession of a short-barreled
rifle. Skarda then filed a motion for judgment of acquittal or new trial on the basis
that the district court erred by admitting Black's testimony about the casino encounter.
The motion was denied, and Skarda was sentenced to 120 months for each count,
with the sentences running concurrently. Skarda now appeals, arguing that the
district court erred in denying his motion to suppress because (1) changing the
address on the search warrant violated Rule 41 and Rule 4.1 of the Federal Rules of
Criminal Procedure; (2) the warrant was not based on any particularized probable
cause; and (3) the good faith exception did not save the illegal search. Skarda also
argues that the district court erred in denying his motion for a new trial because
allowing Black's testimony was an abuse of discretion.

II.   DISCUSSION

      A.     Motion to Suppress

       "When reviewing a district court's denial of a suppression motion, we review
for clear error the district court's factual findings and review de novo whether the

                                          -5-
Fourth Amendment was violated." United States v. Welch, 811 F.3d 275, 279 (8th
Cir.) (quoting United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007)), cert. denied,
136 S. Ct. 2476 (2016).

             1.     Rule 41 and Rule 4.1 of the Federal Rules of Criminal
                    Procedure

       Skarda argues that changing the address on the search warrant violated Rule
41 and Rule 4.1 of the Federal Rules of Criminal Procedure and further invalidated
the search warrant. Rule 41(d)(3) states, "In accordance with Rule 4.1, a magistrate
judge may issue a warrant based on information communicated by telephone or other
reliable electronic means." Rule 4.1(b) lists the procedures for issuing a warrant by
telephone or other electronic means. "The judge must place under oath–and may
examine–the applicant and any person on whose testimony the application is based."
Fed. R. Crim. P. 4.1(b)(1). Where the applicant only verifies information contained
in an affidavit, the judge need only "acknowledge the attestation in writing on the
affidavit." Id. 4.1(b)(2)(A). However, where the judge allows additional testimony
or exhibits, he or she must:

      (i) have the testimony recorded verbatim by an electronic recording
      device, by a court reporter, or in writing; (ii) have any recording or
      reporter's notes transcribed, have the transcription certified as accurate,
      and file it; (iii) sign any other written record, certify its accuracy, and
      file it; and (iv) make sure that the exhibits are filed.

Id. 4.1(b)(2)(B).

      Because the phone conversation between Coulter and Magistrate Judge Klein
was not recorded, it violated Rule 4.1. However, as the district court correctly held,
suppressing the evidence was not the correct remedy. A violation of Rule 41 warrants
exclusion only when (1) the violation is of constitutional magnitude; (2) the

                                         -6-
defendant is prejudiced in that the search would not have taken place or would not
have been as intrusive; or (3) there is evidence of an intentional and deliberate or
reckless disregard for the rule. United States v. Freeman, 897 F.2d 346, 350 (8th Cir.
1990).

       First, the violation was not one of constitutional magnitude. "The Warrant
Clause of the Fourth Amendment requires that warrants (1) be issued by a neutral and
detached magistrate, (2) contain a 'particular[] descri[ption of] the place to be
searched, and the persons or things to be seized,' and (3) be based 'upon probable
cause, supported by Oath or affirmation.'" United States v. Clyburn, 24 F.3d 613, 617
(4th Cir. 1994) (quoting U.S. Const. amend. IV). There is no requirement that oral
testimony in support of the warrant be recorded. Id. Similarly, "the Fourth
Amendment does not require the issuing judge to record sworn supplementary oral
testimony." United States v. Cote, 569 F.3d 391, 392-93 (8th Cir. 2009). Magistrate
Judge Klein, a neutral magistrate, placed Coulter under oath before he provided
information about the incorrect address on the search warrant. The constitutional
requirements for the search warrant were met, and thus, there was no violation of
constitutional magnitude.

      Second, Skarda was not prejudiced by the violation. Skarda claims that he was
prejudiced because due to the lack of recording, there is no opportunity for
meaningful review. However, there was meaningful review at the suppression
hearing, and the entire record gives ample information for review by this court.
Moreover, evidence will not be suppressed for a violation of Rule 41 unless the
search would not have taken place or would have been less intrusive had the rule been
followed. Freeman, 897 F.2d at 350. Here, there is no evidence that the search would
not have occurred or would have been conducted differently had the phone call been
recorded.




                                         -7-
       Third, there is no evidence of an intentional and deliberate or reckless disregard
for the rule. As the district court noted, "recording the conversation would have been
very difficult under the circumstances." The phone call occurred after normal court
hours, and both parties were using cell phones. Thus, the failure to record the
conversation appears to have been inadvertent, not intentional. Additionally, "the
exclusionary rule is designed to deter police misconduct rather than to punish the
errors of judges and magistrates." United States v. Leon, 468 U.S. 897, 916 (1984).
According to Rule 4.1, any oversight in recording the telephone conversation is
attributed to Magistrate Judge Klein, not Coulter. It was her duty to record the
conversation. Fed. R. Crim. P. 4.1. Thus, "on the facts of this case, exclusion is an
inapt remedy." United States v. Chaar, 137 F.3d 359, 362 (6th Cir. 1998). As such,
even though the telephone call between Coulter and Magistrate Judge Klein and the
resulting change in address on the search warrant violated Rule 41 and Rule 4.1, the
violation does not warrant suppression of the evidence.

             2.     Probable Cause

       Skarda also argues that the search warrant was invalid and the search illegal
because the warrant was not based on particularized probable cause. According to
Skarda, even after the warrant was corrected following the telephone call to
Magistrate Judge Klein, there was only probable cause to search the property at the
10952 address, not the 10841 address. We review the probable cause determination
de novo. United States v. Gonzalez, 781 F.3d 422, 427 (8th Cir.), cert. denied, 136
S. Ct. 139 (2015). However, we grant "great deference" to the initial determination
that there was probable cause for the search. United States v. Smith, 581 F.3d 692,
694 (8th Cir. 2009). We will affirm the district court's denial of a motion to suppress
"unless the decision is unsupported by substantial evidence, is based on an erroneous
view of the applicable law, or in light of the entire record, we are left with a firm and
definite conviction that a mistake has been made." United States v. Puckett, 466 F.3d



                                          -8-
626, 629 (8th Cir. 2006) (quoting United States v. Vanhorn, 296 F.3d 713, 717 (8th
Cir. 2002)).

       A magistrate judge may issue a search warrant "upon a showing of probable
cause to believe that the legitimate object of a search is located in a particular place."
Steagald v. United States, 451 U.S. 204, 213 (1981). A showing of probable cause
requires "evidence of a nexus between the contraband and the place to be searched."
United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000). The court must make a
"common-sense decision" based on the totality of the circumstances set forth in the
affidavit as to whether "there is a fair probability that contraband or evidence of a
crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983).

       Here, law enforcement found methamphetamine on Starr that she purchased
from Skarda. Starr also had Skarda's phone number in her cell phone. CS-5
corroborated Starr's testimony about Skarda's drug dealing and stated that he or she
had also purchased methamphetamine from Skarda. Starr gave a physical description
of Skarda's residence, noting that it might possibly be Skarda's parents' homestead but
emphasizing that Skarda lived there. She stated that the residence was a one-bedroom
metal structure with water and electricity running to it that was currently under
construction. She also noted that there was a large quonset metal structure next to the
home, as well as equipment on the property. CS-5 substantiated Starr's physical
description of Skarda's residence, noting that Skarda kept methamphetamine in the
quonset on his farm property. The original address on the warrant was incorrect
because the Department of Transportation records for Skarda were incorrect. The
mistake was realized prior to the execution of the warrant, Johansen obtained the
correct address from dispatch, the new address was verified, and the warrant was
corrected. Thus, the affidavit established a clear nexus between drug dealing and
Skarda's residence, such that the mere address change had no effect on the validity
of the warrant.



                                           -9-
       Skarda further argues that the change in address interfered with the sufficiency
of the description of the place to be searched.

      The test for determining the sufficiency of the description of the place
      to be searched is whether the place to be searched is described with
      sufficient particularity as to enable the executing officer to locate and
      identify the premises with reasonable effort, and whether there is any
      reasonable probability that another premise might be mistakenly
      searched.

United States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979). As discussed above, the
physical description provided by Starr and CS-5 sufficiently described the 10841
address so that officers could locate Skarda's residence. After learning of the
incorrect address, Johansen and Bennett visited the property and were able to confirm
that the 10841 address was the correct address based on the descriptions given by
Starr and CS-5. White was also able to identify the 10841 address via Google Earth
and confirm that it matched the description previously provided. Thus, the first prong
of the test is met. Skarda next argues that Starr's description is insufficient because
it would fit 99.99% of all rural farmsteads in North Dakota and thus fails the second
prong of the test. This argument disregards Starr's testimony that Skarda's residence
was under construction. Specifically, she testified that a foundation had been poured,
new walls had been constructed, and insulation and woodwork were beginning. This
distinguishes Skarda's residence from most other rural farmsteads in North Dakota.
The second prong is met. Thus, the description was sufficient, and the district court
properly determined that probable cause existed to search the property located at the
10841 address.2



      2
       Although the good faith exception to the exclusionary rule would likely save
the evidence from being suppressed, because we hold that adequate probable cause
existed and the search warrant sufficiently described the property to be searched, we
need not address this argument.

                                         -10-
      B.     Motion for a New Trial

      Skarda's motion for a new trial was based on the district court's decision to
allow evidence that Skarda sought to and did intimidate witness Black as seemingly
evidenced by Black's early exit from the casino. At trial, Black testified that a week
before trial Skarda approached him at a casino, cursed at him, and made threatening
statements. The district court held that Skarda's encounter with Black at the casino
was "indicative of some consciousness of guilt." The district court then conducted
an analysis under Rule 403 of the Federal Rules of Evidence and held that the
probative value of the evidence was not outweighed by unfair prejudice. Skarda
argues that this was in error.

        We review the district court's admission of evidence of witness intimidation for
an abuse of discretion. United States v. Zierke, 618 F.3d 755, 759 (8th Cir. 2010).
It is well established in the Eighth Circuit that threats against witnesses are "generally
admissible against a criminal defendant to show consciousness of guilt of the crime
charged." Id. (quoting United States v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir.
1994)). Moreover, the evidence "is considered 'direct evidence of the crime charged'
and is not subject to a Rule 404(b) analysis." United States v. Castleman, 795 F.3d
904, 915 (8th Cir. 2015) (quoting Zierke, 618 F.3d at 759), cert. denied, 136 S. Ct.
912 (2016).

       Skarda relied on United States v. Weir, 575 F.2d 668 (8th Cir. 1978), where the
district court erred by allowing evidence that the defendant attempted to kill an
informant and threatened to kill a witness and FBI agent. Id. at 669. The testimony
was admitted at trial to explain how the witness identified the defendant. Id. at 670.
This court reversed, holding that identification testimony "could have been offered
into evidence, by appropriate questions, without going into the objectionable 'other
crimes' [or attempted murder] evidence." Id. at 671. The court reversed the
conviction, held that the evidence "was substantially outweighed by the danger of

                                          -11-
unfair prejudice," and noted "that it should have been excluded under Fed. R. Evid.
403." Id. at 670. Weir, however, is easily distinguished. In Weir the district court
admitted the disputed testimony as evidence of "other crimes" to show the identity of
the defendant under Rule 404(b). Here, the testimony was admitted as evidence of
Skarda's consciousness of his own guilt.

       Moreover, since Weir, this court has consistently held that evidence of threats
against witnesses are generally admissible, even if prejudicial. See Castleman, 795
F.3d at 915; Zierke, 618 F.3d at 759; DeAngelo, 13 F.3d at 1232. Rule 403 of the
Federal Rules of Evidence only excludes evidence that is "unfair[ly] prejudic[ial]."
"[E]vidence is not unfairly prejudicial merely because it tends to prove a defendant's
guilt." Zierke, 618 F.3d at 759 (quoting United States v. Boesen, 541 F.3d 838, 849
(8th Cir. 2008)). Contrary to Skarda's argument, the government did not argue or
imply that the jury should convict Skarda because of his bad character. Rather,
Black's testimony was used to show Skarda was guilty of the charged crime.
Additionally, the testimony was not excessively emotional or inflammatory. Thus,
the district court did not abuse its discretion by admitting the testimony.

III.   CONCLUSION

       The judgment of the district court is affirmed.
                      ______________________________




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