                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 07a0444p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                       X
                                   Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                        -
                                                        -
                                                        -
                                                               No. 06-2279
            v.
                                                        ,
                                                         >
 DANIEL LEE STUART,                                     -
                                 Defendant-Appellant. N

                          Appeal from the United States District Court
                         for the Eastern District of Michigan at Detroit.
                        No. 04-80439—George C. Steeh, District Judge.
                                   Argued: October 23, 2007
                             Decided and Filed: November 7, 2007
                 Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.
                                      _________________
                                           COUNSEL
ARGUED: Liisa R. Speaker, SPEAKER LAW FIRM, PLLC, Lansing, Michigan, for Appellant.
Kevin M. Mulcahy, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Liisa R. Speaker, SPEAKER LAW FIRM, PLLC, Lansing, Michigan, Ina R. O’Briant,
East Lansing, Michigan, for Appellant. Kevin Mulcahy, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee.
                                      _________________
                                          OPINION
                                      _________________
        SUTTON, Circuit Judge. A jury convicted Daniel Lee Stuart of violating several drug-
trafficking and firearm-possession laws. On appeal, Stuart argues that his rights to effective
assistance of counsel, a trial by jury, a Franks hearing and due process were violated. Because we
decline to review Stuart’s ineffective assistance claim on direct appeal and because his other
arguments are unconvincing, we affirm.
                                                I.
        On March 25, 2003, a Michigan police officer stopped Richard Hale for speeding, discovered
a gallon-sized bag of marijuana in his car and arrested him. Soon after the arrest, Hale spoke with
Officer Lou Costley, a member of the Jackson Narcotics Enforcement Team. As a three-time prior
offender, Hale knew that another conviction could mandate a life sentence, and as a result he
cooperated with the police in order to “save [his] own freedom.” JA 277. Hale told Costley that he

                                                1
No. 06-2279           United States v. Stuart                                                   Page 2


had purchased the seized marijuana from Daniel Stuart, that he had purchased marijuana from Stuart
on a regular basis and that he had seen an additional ten pounds of marijuana in Stuart’s residence.
       Costley sought a warrant to search Stuart’s residence. In the affidavit accompanying the
warrant application, he described the facts surrounding the traffic stop and Hale’s incriminating
statements about Stuart. Costley added that Stuart previously had been investigated for marijuana
possession. A judge approved the warrant that same day—March 25th. When the narcotics team
searched Stuart’s house, they seized roughly four pounds of marijuana, two digital scales, body
armor and a small arsenal of firearms that included a revolving cylinder shotgun (a “street
sweeper”), two assault rifles and five other shotguns or rifles.
         A federal indictment charged Stuart with (1) possession of marijuana with intent to
distribute, see 21 U.S.C. § 841(a)(1); (2) possession of a firearm in furtherance of a drug-trafficking
crime, see 18 U.S.C. § 924(c)(1)(A); (3) maintenance of drug-involved premises, see 21 U.S.C.
§ 856(a)(1); (4) possession of an unregistered firearm, see 26 U.S.C. § 5861(d); and (5) possession
of a firearm by an illegal drug user, see 18 U.S.C. § 922(g)(3).
        Stuart sought to suppress the evidence against him based on an alleged discrepancy between
the date of the search and the date of the warrant. Relying on a difference between the date of the
warrant (March 25, 2003, JA 57) and the date of the incident report (which bore a “Date & Time”
of March 23, 2003, JA 60), Stuart argued that the warrant “was issued [two] days after the actual
search took place.” JA 57. Claiming that a “major conspiracy” was afoot, JA 170, Stuart accused
government officials of forging documents in order to cover up the fact that the search occurred
before the officers had a warrant. As evidence, Stuart offered to submit an affidavit of Mary Jo
Marr—his girlfriend—stating that the search occurred on Sunday, March 23. The police, he added,
orchestrated this conspiracy to get Stuart “off the street” because “he had a lot of incriminating
evidence about” various officers’ “drug trafficking in Jackson.” JA 191. In response, the
government explained that the discrepancy over the date of the search stemmed from a computer
mistake and provided several documents—five officer activity logs, a towing report, a condemnation
document, dispatch logs, canine search documentation, fingerprint records and a booking
report—showing that the search occurred on Tuesday, March 25.
        After listening to all of this, the court determined that it did not need “to hear testimony in
order to resolve the motion based on the credibility of the competing versions,” because “the theory
of the movant in this case is so bizarre, it has to be beyond belief.” JA 188. The court also told the
defense that “unless you [are] able to produce something more than that close friend of the
defendant’s who says that she remembers that it was the 23rd that he was arrested . . . I don’t believe
that you have created a sufficient question of fact concerning that issue . . . . If in the meantime you
developed some more compelling evidence . . . then I will certainly entertain that.” JA 189–90.
        Nearly one month later, the court granted Charles Fleck’s motion to withdraw as defense
counsel and permitted Stuart, with new counsel, to file an additional motion for a hearing under
Franks v. Delaware, 438 U.S. 154 (1978), to challenge the truthfulness of Costley’s statements in
the underlying search-warrant affidavit. Stuart attached an affidavit of Terrance Wheeler, who said
that Costley previously had offered him “immediate release from detainment with no further
actions . . . if [he] would say that [he] had purchased marijuana from Daniel Stuart.” JA 98. The
court denied the motion, finding probable cause and noting that Wheeler’s affidavit did nothing to
establish that Costley asked Wheeler “falsely or recklessly [to] implicate” Stuart. JA 32.
       At a separate pretrial hearing, the government told the court that Stuart had listed two
witnesses, Anthony Marr and Mary Jo Marr, who might testify about the date of the search in a
manner that “contradict[s] what the police officers testified to . . . and what other witnesses testify
to.” JA 211. The government told the court that the witnesses “should be advised they need to seek
No. 06-2279           United States v. Stuart                                                    Page 3


counsel because they may be setting themselves up for jeopardy.” Id. The court declined to give
such a caution “given the chilling effect that such a warning might have for them to testify.” JA 212.
        At the end of the prosecution’s case, Stuart proposed this jury instruction: “In order to return
a guilty verdict, all twelve of you must agree that the defendant committed the crime on the same
date, either March 23, 2003 or March 25, 2003.” JA 157. The court refused to submit the
instruction because “the validity of the warrant and the search . . . [is a] question for the Court to
decide.” JA 350.
                                                   II.
         Stuart raises four arguments on appeal: (1) his original counsel was ineffective in failing to
investigate his theory about the date of the search; (2) the court violated his Fifth and Sixth
Amendment rights when it refused to submit the dispute over the date of the search to the jury;
(3) the court improperly denied him a Franks hearing; and (4) the court violated his due process
right to present his theory of the case when the prosecution intimidated his witnesses with perjury
threats.
                                                   A.
         “As a general rule, this Court will not review claims of ineffective assistance of counsel for
the first time on direct appeal [unless] the record is adequately developed . . . .” United States v.
Hall, 200 F.3d 962, 965 (6th Cir. 2000). Stuart offers no good reason for departing from this general
rule here, and accordingly Stuart must pursue these claims, if he pursues them at all, through a
motion under 28 U.S.C. § 2255.
                                                   B.
       Stuart next argues that the court violated his rights under the Fifth and Sixth Amendments
when it refused to submit the dispute over the date of the search to a jury. The court should have
adopted his proposed jury instruction, he says, because the timing of the search was a factual
question and because “questions of fact[] are to be determined by the jury and matters of law are
properly determined by the court.” Br. at 10.
        Even if we accept Stuart’s argument that he presented enough evidence to create a legitimate
factual dispute over the date of the search, that does not make the question one for the jury. The
application of the exclusionary rule generally presents “question[s] of fact and law for the court and
not for the jury.” Steele v. United States, 267 U.S. 505, 511 (1925) (holding that a probable-cause
determination need not be submitted to a jury). As with most evidentiary rulings, see Fed. R. Evid.
104(a); United States v. Nickerson, 606 F.2d 156, 158 (6th Cir. 1979), courts rather than juries must
ultimately decide whether a Fourth Amendment claim requires the suppression of evidence, see
Steele, 267 U.S. at 511; United States v. Lang, 8 F.3d 268, 271 (5th Cir. 1993) (reversing based upon
the court’s failure to determine conclusively whether cocaine was in plain view).
          Stuart responds that he wanted the jury to determine a factual question at the “heart
of . . . [his] constitutional rights,” not the admissibility of evidence. Reply Br. at 1. But the date of
the search was relevant only to the propriety of applying the exclusionary rule, not for any other
reason. Once the court upheld the validity of the search, all that was left for the jury to decide was
whether the government proved the elements of the charges beyond a reasonable doubt. None of
the charged crimes required the jury to agree upon the date of the search or even the date that the
crime occurred. The jurors needed to agree only that, as charged in the indictment, “[o]n or about
March 25, 2003,” Stuart possessed the marijuana with the requisite distributive intent, possessed the
relevant guns and maintained a drug-involved premises. JA 17–19 (emphasis added).
No. 06-2279           United States v. Stuart                                                    Page 4


         Stuart says that Haynes v. Washington, 373 U.S. 503 (1963), is to the contrary, and that it
requires all factual questions bearing on constitutional issues to go to the jury. That is not true. A
jury determination of a factual issue “may be entitled to some weight” in some circumstances,
Haynes acknowledged, id. at 515, but it never said that a defendant’s right to a jury trial requires all
factual questions bearing on the validity of a search to go to a jury. At stake in Haynes was not the
validity of a search but the validity of admitting an involuntary confession at trial. Id. at 514–15.
After the Court determined that “the bounds of due process ha[d] been exceeded” by the admission
of the involuntary confession, it rejected the State’s argument that this conclusion was “foreclosed”
because the “jury may have reached a different result on this issue,” id. at 515, when it was asked
to decide the voluntariness of the confession under a later-abandoned state-law procedure that
treated the issue as one of fact, id. at 506–07 & n.5. In reaching this conclusion, Haynes observed
that the courts “cannot be precluded by the verdict of a jury from determining” the ultimate
constitutional question. Id. at 515–16. Haynes, in short, is a case that identified due process
problems with submitting the constitutionality of a confession to a jury, not with submitting it to a
judge.
        Any doubt about the meaning of Haynes was put to rest one year later by Jackson v. Denno,
378 U.S. 368 (1964), which invalidated a New York procedure that sent the voluntariness of a
confession to the jury unless “in no circumstances could the confession be deemed voluntary.” Id.
at 377. The Court rejected this procedure because of the “danger that matters pertaining to the
defendant’s guilt will infect the jury’s findings of fact bearing on voluntariness.” Id. at 383. Far
from requiring juries to decide such questions, the Court held that trial judges must make a “clear-
cut determination of the voluntariness of the confession, including the resolution of disputed facts
upon which the voluntariness issue may depend.” Id. at 391. Whether Haynes and Jackson still
allow a jury to consider factual issues bearing on constitutional questions after the judge has ruled
on the question is a matter we need not decide; for present purposes, it suffices to say that the two
cases do not require courts to allow juries to second guess those decisions or decide them in the first
instance.
         It is worth emphasizing the reach of Stuart’s rule: He is not saying that courts may present
juries with factual questions bearing on the constitutional admissibility of evidence obtained during
a criminal investigation; he is saying that they must do so. Not only does that position lack a single
precedent to support it, but it also would transform criminal trials. Courts hoping to follow this rule
would face a series of awkward choices in deciding how to comply with it. They could hold a jury
trial before the (real) jury trial to determine what evidence would be admissible against the
defendant. Or they could submit the constitutional evidentiary issues to the same jury that decides
guilt or innocence. The former response would compel two criminal trials in the place of one and
frequently would require witnesses to testify on two different occasions. And the latter would
preclude the parties (including the defendant) from knowing what evidence would be admissible
until after each party had closed its evidence and the case had gone to the jury—a cure that surely
makes the disease worth living with.
        It gets worse. Any hope of complying with Stuart’s jury-instruction method in a single
proceeding—the remedy Stuart seems to prefer—would require the jury to determine the evidence
it was allowed to consider after it heard the evidence it might or might not be allowed to consider.
In any trial in which the jury found the defendant guilty after resolving the constitutional fact dispute
in the defendant’s favor, the court would face serious cause for a mistrial. Cf. Haynes, 373 U.S. at
518–19 (remanding the case “for a jury to decide on a new trial free of constitutional infirmity”);
Jackson, 378 U.S. at 388 (noting that, once admitted, evidence becomes “solidly implanted in the
jury’s mind”). In the final analysis, Stuart’s rule has no more precedential support than it does
common-sense support, and accordingly we reject the argument.
No. 06-2279           United States v. Stuart                                                    Page 5


                                                   C.
        In contending that the district court should have granted a Franks hearing, Stuart fails to
come to grips with the fact that he did not make a threshold showing that the warrant affidavit
contained deliberately or recklessly false information. Franks no doubt gives defendants the right
to challenge the propriety of a previously issued warrant. But “[i]n order to obtain a hearing, the
defendant must make a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included in the affidavit.” United States
v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002). Warrant affidavits carry with them “a presumption
of validity,” and “the challenger’s attack must be more than conclusory” and must allege “deliberate
falsity or reckless disregard [on the part] of the affiant, not of any nongovernmental informant.”
Franks, 438 U.S. at 171 (emphasis added).
        In addressing this issue, we need not take sides on the division in the courts of appeals over
whether a district court’s Franks ruling receives clear error or de novo review. See Stewart, 306
F.3d at 304. In Stewart, we identified the conflict in the courts but determined that “the more
exacting [de novo] standard of review is satisfied . . . and it is unnecessary for us to further discuss
the issue.” Id. (internal quotation marks omitted and alterations in original). We take the same path
here. Stuart has made no showing that any of the information in the affidavit was deliberately false
or submitted with reckless disregard for its truth, and as a result his claim cannot satisfy either
standard.
        In his warrant affidavit, Costley described his expertise in narcotics trafficking, his
knowledge of previous narcotics investigations involving Stuart, the details behind Hale’s arrest and
Hale’s statements about Stuart’s drug dealing. Stuart has done nothing to show that Costley—the
affiant—made any deliberately false or reckless claims in the affidavit. Each of Hale’s allegations
was set forth with the qualifier, “Your Affiant was informed by Hale . . . .” JA 86–89. Stuart points
only to evidence that one of Hale’s statements to the police may have been misleading, and he has
provided no evidence that the statements were not true, let alone that Hale never made them to
Costley. Although Hale equivocated at trial regarding whether he actually saw ten pounds of
marijuana, he confirmed that he did indeed tell the police he saw “seven to ten” additional pounds.
JA 282. Stuart thus has not established a cognizable claim of falsity “of the affiant,” as Franks
requires. 438 U.S. at 171.
          Stuart alternatively argues that Costley recklessly credited Hale’s statements because Hale
snitched in order to “save [his] own freedom.” JA 277. An arrested informant in Hale’s position,
it is true, may have “a motivation to implicate and pass the blame to another,” Hill v. Hofbauer, 337
F.3d 706, 717 (6th Cir. 2003), and the use of such statements at trial may pose hearsay problems
when offered by the non-declarant, see United States v. Trujillo, 376 F.3d 593, 611 (6th Cir. 2004).
But Stuart is wrong to suggest that an officer may never rely on post-arrest statements in
investigating a crime or in seeking a warrant. Although Trujillo held that the arrested declarants in
that case had “a motive to lie, regarding the source of the marijuana, in order to get lenient
treatment” and thus their earlier statements could not be admitted under the hearsay exception for
prior consistent statements, see Fed. R. Evid. 801(d)(1)(B); Trujillo, 376 F.3d at 611, it also held that
the presence of the same post-arrest statements in a search-warrant affidavit did not establish “a
strong showing” of falsity sufficient to require a Franks hearing, id. at 604.
        In this case, Officer Costley used Hale’s post-arrest statements to support a warrant
application. Hale knew that he faced a potential life sentence as a fourth-time offender, and Costley
could fairly use his statements on the theory that Hale would not aid his cause by leading the police
down a false trail. On this record, Costley was not unduly reckless when he included Hale’s
statements in the affidavit, especially since Hale merely identified his source for the marijuana and
did not attempt to shift blame away from himself or excuse his own possession.
No. 06-2279           United States v. Stuart                                                   Page 6


        The last piece of evidence offered to impugn the affidavit’s reliability was Terrance
Wheeler’s sworn statement that Costley previously tried to elicit testimony from him incriminating
Stuart. But if Stuart was a suspect, why wouldn’t Costley ask others for information about him?
Thus, while Wheeler’s affidavit offers the unremarkable fact that Costley asked him, as opposed to
just Hale, for incriminating information about Stuart’s drug dealing, it does not show that Costley
pursued this lead recklessly or with any malicious intent, which is what is required to obtain a
Franks hearing. Stewart, 306 F.3d at 304.
                                                  D.
        Stuart finally objects that the prosecutor’s references to perjury charges caused him and his
witnesses Mary Jo Marr and Anthony Marr not to testify, thereby denying him due process.
Defendants indeed have a due process right to present witnesses to establish a defense, Washington
v. Texas, 388 U.S. 14, 19 (1967), and this right precludes prosecutors and judges from improperly
threatening witnesses with perjury prosecution, Webb v. Texas, 409 U.S. 95, 97–98 (1972). “Webb,
however, does not stand for the proposition that merely warning a witness of the consequences of
perjury demands reversal.” United States v. Pierce, 62 F.3d 818, 832 (6th Cir. 1995). To the
contrary, “the government has an obligation to warn unrepresented witnesses of [that] risk.” Id. To
establish a claim of witness intimidation, as a result, defendants must present “government conduct
which amounts to substantial interference with a witness’s free and unhampered determination to
testify” and must prove that any inappropriate conduct was not harmless. United States v. Foster,
128 F.3d 949, 953 (6th Cir. 1997). Stuart has not met this burden.
         Stuart claimed at sentencing that he would have testified but for the government’s perjury
threats, yet the record shows that no such threats occurred and that Stuart’s decision not to testify
was his own. The judge warned Stuart about the risks of testifying, including “the possibility
that . . . obstruct[ing] justice . . . [c]ould add to his offense scores in the determination of his
guideline range,” but the court made clear that an enhanced sentence was a “more likely risk than
perjury prosecution.” JA 354. The judge did not “want to have the record indicate that [Stuart was]
being openly threatened with perjury prosecution if he [took] the stand to testify,” and the
government agreed that it wanted Stuart to “make his own decision” and was “not threatening him
with anything.” JA 355–56.
         “You understand,” the court asked Stuart, “that the decision to testify or not to testify is
entirely your own?” JA 358. And Stuart responded, “Yes, your[] Honor.” Id. The prosecution
again “want[ed] the record to reflect that we’re not threatening the defendant with anything. His
decision to testify is his own, and we have no stake in that case.” JA 359. When Stuart expressed
confusion, the court explained, “the only real potential risk that you would take on if you testify, and
if it’s concluded that you lied in your testimony . . . is that your sentence could be increased under
the guideline calculation.” Id. Stuart responded, “I understand,” and reiterated his decision not to
testify. JA 360. Where, as here, the government did not threaten Stuart with perjury and the court
repeatedly told Stuart that the only material risk he ran was an enhanced sentence due to obstruction
of justice, he cannot show that the court or the government improperly interfered with his decision
to testify.
        As to Anthony and Mary Jo Marr, neither the government nor the judge made any statements
regarding perjury charges to them. At a plea-cutoff hearing, the government told the court that the
witnesses “should be advised they need to seek counsel because they may be setting themselves up
for jeopardy” by testifying that the date of the search was Sunday, March 23. JA 211. But this
statement was intentionally made outside the presence of these witnesses in order to fulfill the
prosecution’s recognized “duty,” JA 353, and the court declined to caution the witnesses “given the
chilling effect that such a warning might have for them to testify,” JA 212. Stuart’s counsel even
admitted that the prosecution never directly threatened these witnesses, stating that she herself
No. 06-2279           United States v. Stuart                                                 Page 7


relayed that the government “would prosecute [them] for perjury.” JA 353. On this record, as the
district court correctly concluded, no misconduct occurred.
        Even if there had been misconduct, it bears adding, it could not have affected the outcome
of the trial. Keep in mind that these witnesses would have testified only about the date of the
search—which, as we have explained, had no bearing on the question of guilt. The court considered
their potential testimony at the suppression hearing and ruled the search constitutional. Stuart thus
had nothing more to gain from their testimony at trial.
                                                III.
       For these reasons, we affirm.
