                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            JUN 12 2000
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,
             Plaintiff - Appellee,                      No. 99-6009
 v.                                               (D.C. No. 98-CR-44-A)
 KEITH LAMAR ORANGE,                                    (W.D. Okla.)
             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before BALDOCK, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Defendant was convicted for his participation in an elaborate scheme

operated from prison to file fraudulent income tax returns seeking refunds in

violation of 18 U.S.C. §§ 286, 287, and 2(b). He was sentenced to concurrent



      *
       This order and judgment is not binding precedent, except under the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.
terms of seventy-eight months’ imprisonment and sixty months’ imprisonment.

He raises five arguments on appeal, challenging both his convictions and his

sentence.

      Defendant first contends that the district court erroneously denied his

motion to suppress co-conspirator testimony. He asserts that his co-conspirators

agreed to testify because they expected that, in return, the government would

assist them by dismissing certain counts and by seeking a downward departure in

their sentencing. Defendant alleges that the testimony was therefore secured in

violation of the law.

      Before trial Defendant moved to suppress the co-conspirator testimony

based on the panel decision in United States v. Singleton, 144 F.3d 1343 (10th

Cir. 1998) (vacated), which held that the government’s offer of leniency in

exchange for testimony violated 18 U.S.C. § 201(c)(2). That decision was

subsequently overturned en banc in United States v. Singleton, 165 F.3d 1297

(10th Cir.), cert. denied, ___ U.S. ___ (1999). Defendant also asserted a corollary

argument that United States Attorneys are bound by state ethical rules, one of

which is Rule 3.4(b) of the Oklahoma Rules of Professional Responsibility. That

rule provides that a lawyer shall not “offer an inducement to a witness that is

prohibited by law.” Okla. Stat. Ann. tit. 5, ch. 1, app. 3-A.

      In reviewing the denial of a motion to suppress, we review the district


                                         -2-
court’s findings of fact for clear error, and we review its legal conclusions de

novo. See United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999).

Whether the co-conspirator testimony admitted in this case was legally obtained is

a question of law which we review de novo. See United States v. Singleton, 165

F.3d at 1299.

      We observe that the federal statute making United States Attorneys subject

to state ethical rules did not become effective until after Defendant’s trial, see 28

U.S.C. § 530B, but we do not rely on that fact. Since the en banc decision in

Singleton, the inducements involved in this case clearly would not be prohibited

by law under 18 U.S.C. § 201(c)(2). Because Defendant has failed to demonstrate

the violation of § 201(c)(2) or any other law, there is no basis for holding that the

prosecution violated Rule 3.4(b). See United States v. Hill, 197 F.3d 436 (10th

Cir. 1999).

      In addition, admissibility of evidence in a federal criminal trial is not

controlled by state evidentiary rules. Under the en banc decision in Singleton and

Federal Rule of Evidence 402, the challenged testimony is plainly admissible.

See United States v. Lowery, 166 F.3d 1119, 1124-25 (11th Cir.), cert. denied,

___ U.S. ___, 120 S. Ct. 212 (1999). Nothing in 28 U.S.C. § 530B suggests that

Congress intended it to require exclusion of otherwise admissible evidence in

federal court even if such evidence has been obtained in violation of state


                                          -3-
professional conduct rules incorporated into the local rules of a federal district

court. See id.

      Defendant next challenges the district court’s refusal to suppress evidence

obtained from the home of his claimed common-law wife, Laura Banks, some of

which was seized pursuant to a search warrant and some pursuant to her consent.

Again, review of the district court’s factual findings on a motion to suppress is

under the clearly erroneous standard. See United States v. Hunnicutt, 135 F.3d

1345, 1348 (10th Cir. 1998). But the ultimate question of the reasonableness of a

search or seizure is a legal question subject to de novo review. See id.

      Defendant objected to the admission of certain evidence contained in sealed

boxes which Ms. Banks picked up from Defendant at prison for safekeeping until

his release. The district court held that Defendant had no standing to challenge

the search of Ms. Banks’ house where he did not live while he was in prison. It

further held that Defendant’s subjective expectation of privacy in the sealed boxes

was not objectively reasonable. The court noted his lack of control over his

papers and reasoned that “[n]othing prevented his boxes from being opened or his

letters from being shown to others, or simply discarded.” R., Vol. 1, Doc. 83 at 9.

We need not review the district court’s determination of these issues. Even if

Defendant had an objectively reasonable expectation of privacy in the sealed

boxes and standing to challenge the search of the house, we nevertheless conclude


                                          -4-
that evidence gathered in the search was admissible. In light of the valid search

warrant and Ms. Banks’ control over and consent to surrender the boxes, we

conclude that the court properly refused to suppress the challenged evidence. See

United States v. Leon, 468 U.S. 897, 913 (1984) (stating that evidence obtained

through execution of a search warrant by officers who reasonably rely on its

validity need not be excluded); Franks v. Delaware, 438 U.S. 154, 171 (1978)

(requiring that challenges be “more than conclusory,” noting a “presumption of

validity with respect to the affidavit supporting [a] search warrant,” and

determining that no evidentiary hearing is mandated unless an allegation of

deliberate falsehood or recklessness is made with specificity and accompanied by

an offer of proof); United States v. Matlock, 415 U.S. 164, 171 (1974) (holding

that prosecution may justify warrantless search by proof of voluntary consent

from third party possessing common control over property).

      Defendant’s third argument asserts that the district court erred in denying

his motion to reveal the identity of one or more confidential informants. We

review a district court’s denial of a motion to disclose the identity of a

confidential informant for an abuse of discretion. See United States v. Gordon,

173 F.3d 761, 767 (10th Cir.), cert. denied, ___ U.S. ___, 120 S. Ct. 205 (1999).

      We conclude that Defendant's challenge is without merit. The district court

properly “balanc[ed] the public interest in protecting the flow of information and


                                          -5-
the individual’s right to prepare his defense” as mandated by Roviaro v. United

States, 353 U.S. 53, 62 (1957). The court did not abuse its discretion.

      Defendant’s fourth argument is a jurisdictional challenge to two of the

counts with which he was charged. He argues that the government failed to prove

venue in the Western District of Oklahoma because at the time of the subject

offense he was incarcerated within the Eastern District of Oklahoma. To

determine whether venue lies in a particular district, we ask “whether, viewing

the evidence in the light most favorable to the Government and making all

reasonable inferences and credibility choices in favor of the finder of fact, the

Government proved by preponderance of direct or circumstantial evidence that the

crimes charged occurred within the district.” United States v. Rinke, 778 F.2d

581, 584 (10th Cir. 1985).

      Where a crime is “begun in one district and completed in another, or

committed in more than one district,” federal law permits prosecution “in any

district in which such offense was begun, continued, or completed.” 18 U.S.C.

§ 3237(a). We therefore conclude that Defendant's challenge is without merit.

The district court cited and relied on evidence plainly showing that relevant acts

took place within its jurisdiction. See United States v. Leahy, 82 F.3d 624 (5th

Cir. 1996) (interpreting 18 U.S.C. § 287 to mean that venue lies where false claim

is prepared, mailed, or presented).


                                         -6-
         Finally, Defendant claims that the court erred in enhancing his offense level

by four levels based on his role as a leader or organizer in the criminal activity

under United States Sentencing Guidelines § 3B1.1(a). We review a district

court’s conclusion that a defendant is a leader or organizer under the guidelines

for clear error. See United States v. Tagore, 158 F.3d 1124, 1130 (10th Cir.

1998).

         We reject Defendant’s challenge to the court’s sentencing determination

that he had a leadership role in the criminal conspiracy. The evidence clearly

supports the court’s finding that the conspiracy involved five or more persons and

that Defendant played a significant role in organizing the illegal activity and

controlling some of his co-conspirators, especially Ms. Banks. See U.S.S.G.

§ 3B1.1(a); United States v. Edwards, 69 F.3d 419, 439-40 (10th Cir. 1995).

         Defendant’s convictions and sentence are AFFIRMED.

                                                 Entered for the Court



                                                 Monroe G. McKay
                                                 Circuit Judge




                                           -7-
