                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1036n.06

                                             No. 11-1021

                           UNITED STATES COURT OF APPEALS
                                                                                           FILED
                                                                                       Sep 27, 2012
                                FOR THE SIXTH CIRCUIT
                                                                                 DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                          )
                                                   )
               Plaintiff - Appellee,               )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
v.                                                 )    EASTERN DISTRICT OF MICHIGAN
                                                   )
WAYNE WILSON, JR.,                                 )                    OPINION
                                                   )
               Defendant - Appellant.              )



       Before: SUHRHEINRICH, STRANCH, and DONALD, Circuit Judges.


       JANE B. STRANCH, Circuit Judge. Wayne Wilson, Jr. appeals his conviction on drug

charges. He contends that a police officer’s testimony during trial differed materially from the

officer’s affidavit that was used to support a search warrant. Wilson argues that: (1) the district

court abused its discretion in denying his motion for a mistrial; (2) the court abused its discretion by

failing to hold a hearing during trial to allow him to challenge the search warrant affidavit under

Franks v. Delaware, 438 U.S. 154 (1978); and (3) the court erred when it failed to address his

argument that the government violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to inform

him before trial of the officer’s changed testimony. Having considered these issues carefully, we

AFFIRM.
No. 11-1021
United States v. Wilson

                          I. FACTS AND PROCEDURAL HISTORY

       The trial evidence revealed that, on October 20, 2009, law enforcement officers, including

Flint Police Officer Karl Petrich, investigated citizen complaints of drug activity at 702 Thomson

Street, Apartments 3 and 5 in Flint, Michigan. Although the officers believed that Wilson resided

in Apartment 3, he was not found there. The police then moved to Apartment 5, where the tenant,

Rashouna Chandler, consented to a search.         Wilson had moved into Chandler’s apartment

approximately two to three months earlier. Officers seized cocaine, marijuana, Vicodin pills,

currency, a digital scale with cocaine residue on it, a loaded .25 caliber Raven semi-automatic

handgun with an obliterated serial number, ammunition, and a loaded 12-gauge shotgun. The

shotgun was found in a blanket box, referred to as a “chester box.”

       On November 19, Officer Petrich sent a confidential informant to 613 Thomson, Apartment

2, to purchase crack cocaine. After the controlled purchase, Petrich sought a search warrant for that

apartment. On November 20, a state prosecutor prepared the search warrant and affidavit based on

information provided by Petrich, who signed the affidavit under oath before a state district judge.

       The affidavit and search warrant described “the premises” to be searched as 613 Thomson

Street, Apartment 2. Petrich stated in the affidavit that he wanted to keep the confidential informant

anonymous and that he believed the informant was reliable and credible. The informant told Petrich

that quantities of cocaine were being sold from the premises. Petrich further averred that the

informant “went into the above described residence and remained there for a brief period of time”

and while the informant was on the premises, a subject left the residence and provided a quantity of

suspected cocaine to the informant in exchange for a quantity of prerecorded currency. Petrich

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United States v. Wilson

further averred that the confidential informant “was kept under continuous surveillance by your

affiant and fellow officers during the sequence of events . . . except for that limited period of time

while [the informant] was inside the above described premises.” Petrich also stated: “During the

controlled purchase, [the informant] was under constant surveillance by members of the Special

Operations Bureau, who observed a hand to hand transaction” between the informant and the

suspect.

       Based on this affidavit, the state district judge issued a search warrant for 613 Thomson

Apartment 2, and police officers executed the search warrant the same day. After an officer knocked

on the door, the police could hear “rumbling” in the apartment, but they received no response to the

knock. Fearing the destruction of evidence, the police forced the door open. The officers moved to

the back of the apartment where Wilson was “already laid out flat on the ground” on the floor a foot

from the bathroom. Officer Petrich recognized Wilson as the person who had provided cocaine to

the confidential informant the day before. Although the toilet had been flushed, police officers

recovered $15 in wet currency; a small rock of crack cocaine; a digital scale with white residue on

it; a Holy Koran and a State of Michigan bridge card with Wilson’s name on them; and an additional

$1,409 in currency. The officers found a key to the apartment in a pocket of the pants Wilson was

wearing. The police also found the same “chester box” that held the shotgun the police seized during

their previous consent search of 702 Thomson Apartment 5.

       Following the search at 613 Thomson Apartment 2, Officer Petrich completed a report for

his supervisors. With regard to the controlled drug purchase on the preceding day, Petrich stated that

the confidential informant knocked on the door of the apartment, a black male left the residence and

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United States v. Wilson

met with the informant, and a hand-to-hand exchange took place. The black male then returned to

the apartment.

       The federal grand jury returned a five-count superseding indictment against Wilson. In

counts one and two, Wilson was charged with possession with intent to distribute crack cocaine and

felon-in-possession of a firearm related to the consent search conducted at 702 Thomson Street

Apartment 5. In count three he was charged with distributing crack cocaine and in count four with

possession with intent to distribute crack cocaine from 613 Thomson Street Apartment 2. In count

five, he was charged with possession with intent to distribute crack cocaine on January 6, 2010, near

East Village Inn in Flint. During discovery, the government turned over to the defense the search

warrant and affidavit for 613 Thomson Street Apartment 2, as well as Officer Petrich’s report about

the execution of that search warrant.

       During trial, Officer Petrich testified inconsistently with his search warrant affidavit and

report. On direct examination he stated that the confidential informant knocked on the door at 613

Thomson Apartment 2 and the door was answered after a short period of time. Petrich then observed

the informant walk to the front yard. Shortly after that, the person Petrich later identified as Wilson

emerged from the apartment door. Wilson and the informant walked down the street approximately

300 feet to 702 Thomson where they stepped just inside the breezeway and conducted a hand-to-

hand drug transaction. Wilson and the informant then walked back down the street together. Wilson

returned to his apartment, and the confidential informant met up with Officer Petrich. After this

testimony, Officer Petrich explained how he procured and executed the search warrant for 613



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United States v. Wilson

Thomson Apartment 2. All of the evidence seized from that apartment was admitted into evidence.

Defense counsel did not object to this testimony or to the admission of the exhibits.

       On cross-examination, defense counsel probed how Officer Petrich could have observed

Wilson and the informant walk 300 feet from 613 to 702 Thomson. Petrich explained that he first

positioned himself 150 feet away, directly behind 613 on the opposite block, so that he could look

through the back yard to the side door of 613, where the informant knocked. He described 702

Thomson as almost ten houses away from 613 on the opposite side of the street. When Wilson came

out of the apartment at 613 and started walking with the informant, Officer Petrich followed them

up the street in his car. When the two men stopped at 702, Officer Petrich drove past 702, pulled

into a driveway on the opposite side of the street, and sat there. As he drove by 702 at ten to fifteen

miles per hour, he saw the hand-to-hand transaction take place in the breezeway. By the time Petrich

pulled into a driveway, the two men were already leaving the breezeway of 702, so they had no time

to enter that residence and come back out. He estimated Wilson and the informant stood in the

breezeway for fifteen seconds. Officer Petrich watched the two men walk back to 613 Thomson, and

then he rejoined the confidential informant.

       Defense counsel cross-examined Petrich about the differences between his trial testimony

and his search warrant affidavit and post-search report, although counsel focused more heavily on

the report than the affidavit. Petrich admitted that he swore to the truth of the affidavit. He also

admitted his report did not reveal that Wilson and the informant walked to 702 Thomson or that the

hand-to-hand transaction took place at 702. He denied that his report indicated the hand-to-hand

transaction took place in front of 613 Thomson. Officer Petrich conceded, however, that the only

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United States v. Wilson

premises described in the affidavit was 613 Thomson and that the affidavit stated the informant went

inside 613, but that was not true.

       On redirect examination, the prosecutor asked Officer Petrich only about his report. Petrich

testified that he deliberately excluded information about the walk from 613 to 702 Thomson to

obscure the identity of the confidential informant and protect the informant from retaliation. On re-

cross examination, Petrich denied that he deliberately falsified his report to his supervisors, but he

agreed that he deliberately withheld information. When defense counsel asked about the search

warrant affidavit, the district court sustained the prosecutor’s objection that the question was beyond

the scope of cross.

       The same day Officer Petrich testified, defense counsel filed a “Motion For Involuntary

Mistrial” asking the court to inquire whether the prosecutor knew prior to trial that Officer Petrich’s

testimony would be inconsistent with the documents provided to the defense during discovery. If

the prosecutor did know, defense counsel argued, the prosecutor had a duty to disclose the changed

testimony so that defense counsel could challenge the search warrant under Franks v. Delaware, 438

U.S. 154 (1978), and Brady v. Maryland, 373 U.S. 83 (1963). Defense counsel also argued that, if

the government decided not to prosecute Officer Petrich for making false statements, that decision

should have been disclosed to the defense as impeachment evidence under Giglio v. United States,

405 U.S. 150 (1972). Counsel also challenged the prosecutor’s gratuitous injection into the trial of

Wilson’s alleged dangerousness, a subject that could only have prejudiced him before the jury.

Defense counsel asked the court to sanction the government by declaring a mistrial and dismissing

the charges.

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No. 11-1021
United States v. Wilson

        During brief oral argument on the motion, the prosecutor explained that he learned of Officer

Petrich’s changed testimony during trial, and asked for time to provide a written response to the

motion. The court took the motion under advisement and finished the trial. After the jury returned

a verdict convicting Wilson, the government filed a written response to the motion for a mistrial,

reiterating that the prosecutor first learned of Officer Petrich’s changed testimony on the first day

of trial, after the jury had been sworn and excused for the day. The government argued that a

mistrial was not warranted.

        In a written Opinion and Order, the district court denied the motion. The court ruled that,

on redirect examination, the prosecutor simply allowed Officer Petrich to explain that he left

information out of his report to protect the informant’s identity. Further, the prosecutor did not elicit

any testimony about Wilson’s alleged dangerousness. The court also found that the prosecutor’s

actions did not amount to justification for lying, nor was the government’s conduct inconsistent with

due process obligations because the police report was not made under oath, and the prosecutor did

not ask about the search warrant affidavit. Finding that the government did not know about Officer

Petrich’s changed testimony until trial, the court declined to address Wilson’s arguments that were

predicated on the assumption that the government did have knowledge before trial. Finally, the court

ruled that Wilson was not deprived of fairness because the government provided the officer’s report

and affidavit to the defense before trial and defense counsel was able to use the documents to cross-

examine Petrich extensively.




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No. 11-1021
United States v. Wilson

                                          II. ANALYSIS

       Wilson divides his brief into three separate arguments, but because the issues are so

intertwined, we will consider the three issues together. Wilson contends that the district court should

have granted his motion for a mistrial because the government withheld material evidence in

violation of Brady v. Maryland and Federal Rule of Criminal Procedure 16(c), thereby surprising

him at trial. Because of the late disclosure of the change in Officer Petrich’s testimony, Wilson

argues that he was precluded from filing, pursuant to Franks v. Delaware, a pretrial motion to

suppress the evidence obtained pursuant to the search warrant for 613 Thomson Apartment 2. Had

a motion to suppress been filed, Wilson contends, the court might have suppressed the evidence

relating to the search, resulting in the dismissal of counts 3 and 4 of the indictment.

A. Standard of review

       We review the denial of a motion for a mistrial for an abuse of discretion. United States v.

Caver, 470 F.3d 220, 243 (6th Cir. 2006). We first determine whether the challenged testimony was

improper, and if so, whether it “was so clearly improper and prejudicial to the defendant[] that the

harm could not be erased by any instruction which the court might give.” United States v. Howard,

621 F.3d 433, 458–59 (6th Cir. 2010) (quoting United States v. Smith, 601 F.3d 530, 538 (6th Cir.

2010)), cert. denied, 131 S. Ct. 1623 (2011). In making this determination, we consider five factors:

“(1) whether the remark was unsolicited, (2) whether the government’s line of questioning was

reasonable; (3) whether the limiting instruction was immediate, clear, and forceful, (4) whether any

bad faith was evidenced by the government, and (5) whether the remark was only a small part of the



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No. 11-1021
United States v. Wilson

evidence against the defendant.” Id. at 459 (quoting Zuern v. Tate, 336 F.3d 478, 485 (6th Cir.

2003)).

B. Analysis of the three issues

          Rule 16(c) provides:

          Continuing Duty To Disclose. A party who discovers additional evidence or
          material before or during trial must promptly disclose its existence to the other party
          or the court if:

          (1) the evidence or material is subject to discovery or inspection under this rule; and

          (2) the other party previously requested, or the court ordered, its production.

          Because the government learned during trial that Officer Petrich’s testimony would not be

consistent with the search warrant affidavit he signed under oath or with his report, the government

violated Rule 16(c) by failing to disclose this development to the defense immediately. See United

States v. Hardy, 586 F.3d 1040, 1043 (6th Cir. 2009). Two of the Zuern factors favor Wilson’s

motion for a mistrial because the government solicited Officer Petrich’s trial testimony and the

government’s line of questioning was not reasonable where the defense was not given previous

notification of the changed testimony. The remaining three factors, however, favor the government.

Wilson did not contemporaneously object or seek other relief, he did not prove that the government

acted in bad faith, and the details concerning Wilson’s walk with the informant was only a small part

of the trial evidence presented against Wilson.

          Defense counsel did not ask to approach the bench when the changed testimony first came

to light. Had counsel objected and asked for a sidebar, the district court might have granted Wilson

a continuance to prepare to meet the changed testimony, or the court might have interrupted the trial

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No. 11-1021
United States v. Wilson

to allow Wilson an opportunity to make a motion to suppress and challenge the search warrant and

affidavit under Franks v. Delaware, 438 U.S. 154 (1978). See Fed. R. Crim. P. 16(d). If the district

court had found a violation under Rule 16(c), Brady, or Giglio, the court might have excluded the

evidence seized from 613 Thomson Apartment 2 as a sanction for the violation. But defense counsel

did not object, ask for a continuance or sanctions, or request a Franks hearing.

       Even if defense counsel had asked for a Franks hearing during trial, however, Wilson would

not have prevailed. To obtain a Franks hearing, the defendant must make a substantial preliminary

showing that the police officer included—knowingly and intentionally, or with reckless disregard

for the truth—in the warrant affidavit a false statement that was necessary to the finding of probable

cause. United States v. Poulsen, 655 F.3d 492, 504 (6th Cir. 2011), cert. denied, 132 S. Ct. 1772

(2012). A Franks hearing is warranted only “[i]f, when the alleged false statement is put aside, the

affidavit no longer provided the court with probable cause.” Id. at 504–05. We have “repeatedly

held that there is a higher bar for obtaining a Franks hearing on the basis of an allegedly material

omission as opposed to an allegedly false affirmative statement.” United States v. Fowler, 535 F.3d

408, 415 (6th Cir. 2008) (citing cases). When material omissions are at issue, “the defendant is

entitled to a hearing if and only if: (1) the defendant makes a substantial preliminary showing that

the affiant engaged in deliberate falsehood or reckless disregard for the truth in omitting information

from the affidavit, and (2) a finding of probable cause would not be supported by the affidavit if the

omitted material were considered to be a part of it.” Id. Therefore, the law requires both redaction

of false statements from the affidavit and consideration of material omitted from the affidavit in

order to determine whether there was probable cause for a search warrant.

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No. 11-1021
United States v. Wilson

       Although a Franks hearing was not held, direct examination and thorough cross-examination

provided a record of the false statements included in and the true statements omitted from the

affidavit. Officer Petrich admitted that his affidavit contained false statements that the confidential

informant went inside 613 Thomson Apartment 2 during the controlled purchase and that the

controlled purchase occurred on the premises. Petrich also conceded that the affidavit omitted the

information that Wilson and the informant walked from 613 to 702 Thomson to complete the drug

transaction. He denied, however, that he intended to mislead and states that he omitted the detail to

protect the identity of the informant.

       If we redact the admittedly false statements from the affidavit, see Poulsen, 655 F.3d at 504,

and consider the information omitted from the affidavit, see Fowler, 535 F.3d at 415, Wilson was

not entitled to a Franks hearing because the affidavit provided a sufficient nexus to cocaine

trafficking at 613 Thomson Apartment 2 to support probable cause for the search warrant. See

United States v. Moore, 661 F.3d 309, 312–14 (6th Cir. 2011). The informant knocked on the door

of 613 Thomson Apartment 2, Wilson emerged and walked with the informant down the street, and

Wilson handed the informant a quantity of crack cocaine in exchange for money, all while under the

surveillance of the police. The confidential informant had earlier informed Officer Petrich that

quantities of cocaine were being sold from 613 Thomson Apartment 2. Although the affidavit

should have explained why Officer Petrich thought the informant was credible and reliable, the

controlled purchase corroborated the informant’s knowledge about drug trafficking at 613 Thomson

and this was enough to show reliability. See Moore, 661 F.3d at 313; United States v. Thomas, 605

F.3d 300, 307 (6th Cir. 2010). The affidavit also included information that the informant was

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No. 11-1021
United States v. Wilson

searched by police before and after the purchase, and the informant did not possess any crack cocaine

other than the amount purchased from Wilson during the controlled buy at 702 Thomson and

promptly turned over to the police. The information about the controlled purchase was not stale

because Officer Petrich sought the search warrant the day after the sale. See id. at 312–13.

       The affidavit was thin. However, judged on the totality of the circumstances, it contained

sufficient information to establish a substantial basis upon which the state judge could conclude that

probable cause existed to search 613 Thomson Apartment 2. See Illinois v. Gates, 462 U.S. 213, 236

(1983); Thomas, 605 F.3d at 307–08 (affirming denial of suppression motion where affidavit offered

“relatively thin justification for probable cause”).

       We further conclude that a violation of Brady v. Maryland, 373 U.S. 83 (1963), did not

occur. The government should have notified the defense as soon as possible that Officer Petrich

would testify about Wilson’s walk with the informant to 702 Thomson. Although the government

could have been more prompt in making this disclosure, the information was provided during trial.

“If previously undisclosed evidence is disclosed during trial, no Brady violation occurs ‘unless the

defendant has been prejudiced by the delay in disclosure.’” United States v. Garner, 507 F.3d 399,

405 (6th Cir. 2007) (quoting United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986)). Wilson has

not shown prejudice resulting from the government’s delay. See United States v. Blood, 435 F.3d

612, 627 (6th Cir. 2006). His counsel effectively utilized the late-disclosed evidence to impeach

Officer Petrich during cross-examination by pointing out to the jury the differences between the trial

testimony and the search warrant affidavit and report. The district court should have addressed the



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No. 11-1021
United States v. Wilson

Brady issue directly. Despite this failure, we conclude that reversal is not necessary. Wilson did not

timely request a continuance when the district court could have addressed the issue.

                                       III. CONCLUSION

       For all of the reasons stated, we conclude that the district court did not abuse its discretion

in denying Wilson’s motion for a mistrial and in not sua sponte ordering a Franks hearing during

trial. Accordingly, we AFFIRM.




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No. 11-1021
United States v. Wilson

       BERNICE B. DONALD, concurring. I agree with the majority opinion that the district court

did not abuse its discretion in denying Wilson’s motion for a mistrial. I write separately because I

disagree with the conclusion that Wilson could not show a Franks or Brady violation.

       The relevant Franks inquiry, for purposes of this case, is whether Officer Petrich’s affidavit

would support a finding of probable cause to search 613 Thomson if the false statements were not

considered. See United States v. Poulsen, 655 F.3d 492, 504 (6th Cir. 2011) (“[i]f, when the alleged

false statement is put aside, the affidavit no longer provides the court with probable cause then a

Franks hearing is warranted.”). The false statements in Petrich’s affidavit were that the confidential

informant went into 613 Thomson, that a transaction between the informant and Wilson occurred

on the premises of 613 Thomson, and that the informant was kept under surveillance during the

events described in the affidavit except for the time he was inside 613 Thomson.1 After excising the

false statements, however, the only relevant information remaining in the affidavit is (1) that the

confidential informant told Petrich that cocaine was being sold from 613 Thomson; (2) that Petrich

thinks the confidential informant is reliable and credible; (3) that the confidential informant was

found with cocaine after meeting with Wilson; and (4) that officers observed a hand-to-hand

transaction between Wilson and the confidential informant. This information does not show a

substantial nexus between 613 Thomson and suspected evidence of drug trafficking because the false



       1
        The operative paragraph of Petrich’s affidavit reads: “That XX thereafter went into the
above described residence and remained there for a brief period of time. While XX was on the
premises, they were approached by a subject that exited said residence herein after [sic] referred to
as S1, and received a quantity of suspected cocaine form S1 in exchange for a quantity of
prerecorded currency while on the premises.”

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No. 11-1021
United States v. Wilson

statements were the only link to any activity occurring at 613 Thomson. Thus, I believe that Wilson

would likely have succeeded in a Franks challenge had he asserted one.

       The opinion asserts, however, that our inquiry should not end with redacting false statements

from the affidavit and concluding that the affidavit without these statements did not provide the court

with probable cause to issue the relevant warrant. The majority cites United States v. Fowler, 535

F.3d 408, 415 (6th Cir. 2008) for the proposition that, in addition to redaction of false statements

from the affidavit, material facts omitted from the affidavit must be read into the affidavit in order

to determine whether there was probable cause for a search warrant.

       I believe this is a misreading and misapplication of the holding in Fowler. Fowler involved

allegations that “ATF agents intentionally misled the magistrate by omitting from the affidavit any

acknowledgment of the fact the confidential informant was involved in ongoing criminal activity.”

535 F.3d at 415. The defendant thus attacked the veracity of the affidavit on the basis of what it left

out rather than false statements made.

       Wilson has no analogous claim of omission here. The defect of the affidavit is that it stated

that the controlled drug buy had occurred at the property to be searched when in fact it had occurred

elsewhere. As this court stated in a case cited to in Fowler, “[t]he affidavit is judged on the

adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been

added.” The majority’s position that information omitted from an affidavit must be read into the

affidavit in evaluating its adequacy is without support in the case law. Because the Wilson affidavit,

without its false statements, provided the magistrate with inadequate factual support for a finding

of probable cause, a Franks challenge would have been appropriate.

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No. 11-1021
United States v. Wilson

       Likewise, Wilson had a plausible argument under Brady. The majority opinion concludes

that the late disclosure of Petrich’s false statements did not prejudice Wilson. I disagree. The

government never “disclosed” this information to Wilson’s counsel. Instead, it placed Petrich on

the stand knowing that his testimony would materially differ from his previous statements describing

the controlled purchase. It is a different case if the government tells the defendant’s counsel the day

of the testimony that the witness’s original statements were incorrect as that scenario at least gives

defense counsel some forewarning and ability to prepare. When the false statements are disclosed

during the course of a witness’s testimony, the prejudice to the defendant is much greater.

       The majority opinion also concludes that during cross-examination Wilson’s counsel was

able to effectively impeach Petrich by highlighting the incorrect statements he made in the affidavit

and report. But the fundamental problem with Petrich’s misstatements is not that they affect his

credibility as a witness but, instead, that they impact the initial determination of probable cause to

search 613 Thomson. No amount of cross-examination could remedy this latter effect. The

undisclosed information was materially related to the Franks issue discussed above. It denied

Wilson the opportunity to challenge that information with a Franks-based motion to suppress prior

to Petrich’s testimony. It is plausible, then, that a Brady violation occurred; had the information

been disclosed to the defense, the result of the proceeding may have been different.

       While I disagree with the majority opinion’s determination that Wilson could not succeed

on a Franks or Brady challenge, I agree that the district court did not abuse its discretion in denying

Wilson’s motion for a mistrial. After Petrich’s testimony, Wilson’s counsel (1) did not object to

Petrich’s testimony or the introduction of the evidence seized from 613 Thomson; (2) did not seek

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No. 11-1021
United States v. Wilson

a continuance or sanctions; and (3) did not request a Franks hearing. While Wilson’s counsel did

file a motion for involuntary mistrial addressing the Government’s knowledge of the false

statements, the motion unnecessarily cabined the inquiry by asking whether the Government knew

of the false statements prior to trial rather than prior to Petrich’s testimony. Moreover, even though

the motion cites Franks and Brady, it only asked for a mistrial and dismissal of the charges; it did

not seek a Franks or Brady hearing or the opportunity to file a motion to suppress.

       We review the district court’s determination under the abuse of discretion standard.

Considering the manner by which Wilson’s counsel attempted to preserve or remedy the error of

Petrich’s misstatement, I concur that the district court did not abuse its discretion in denying the

motion for a mistrial.




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