                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 30 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 99-5018
                                                    (D.C. No. 97-CR-148-C)
    PHILLIP VARNELL,                                      (N.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before TACHA , KELLY , and BRISCOE , Circuit Judges.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Defendant Phillip Varnell entered a conditional guilty plea to conspiracy to

possess with intent to distribute marijuana, a violation of 21 U.S.C. §§ 846,

841(a)(1) and (b)(1)(B). He appeals the district court’s order denying his pretrial

motion to suppress the evidence found in a search of his residence on the ground

that the search warrant was not supported by probable cause. He also objects to

the prosecution’s proposed use of witnesses as violative of the federal gratuity

statute. We have jurisdiction under 28 U.S.C. §1291 and affirm.

       Defendant asserts that the affidavit in support of the search warrant does

not state that contraband was observed either on defendant’s person or at his

residence. Therefore, he argues, probable cause was lacking for a reasonable

belief that evidence of a crime would be found at his residence.

       Our review of the district court’s factual findings is for clear error.

See United States v. Myers , 106 F.3d 936, 939 (10th Cir. 1997). “[T]he

reasonableness of a search and seizure under the Fourth Amendment is a question

of law which we review de novo.”      Id. To determine whether there was a

substantial basis for a finding of probable cause we examine the totality of the

circumstances.   See Illinois v. Gates , 462 U.S. 213, 238 (1983). A reviewing

court should “‘determine whether there is substantial evidence in the record

supporting the magistrate’s decision to issue a warrant.’”    United States v.

Glover , 104 F.3d 1570, 1577 (10th Cir. 1997)     (quoting Massachusetts v. Upton ,


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466 U.S. 727, 728 (1984)). Great deference is paid to the magistrate’s

determination of probable cause.      See id.

       Here, the affiant, a Special Agent with the Drug Enforcement

Administration, began the affidavit with an account of his extensive experience in

drug detection. He then stated that drug dealers often maintain books and records

pertaining to the distribution of controlled substances, as well as large amounts of

currency, among other things, in their residences or businesses. “This court has

held that [a] magistrate is entitled to rely on the expert opinions of officers when

supporting factual information is supplied in the affidavit.”     Id. at 1578 (quotation

omitted).

       The affidavit described information related by a reliable confidential source

concerning defendant’s involvement in drug trafficking at his residence. On two

occasions, the confidential source observed an individual named Stegal emerge

from defendant’s residence carrying a one-pound block of frozen marijuana.         See

App., affidavit, paras. 3, 5. The confidential source also related conversations

with defendant regarding defendant’s drug trafficking business.       See id. paras. 6,

22, 23, 25, 26. Those conversations indicated that defendant was engaged in an

ongoing drug trafficking conspiracy. Accordingly, the totality of the evidence

contained in the affidavit supports the conclusion that there was a fair probability

evidence of an illegal drug conspiracy would be found at defendant’s residence.


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      For his second argument, defendant challenges the prosecution’s intent to

call as witnesses his co-defendants who were promised a reduced charge or

prosecutorial immunity if they testified against him. Relying solely on       United

States v. Singleton , 144 F.3d 1343 (10th Cir. 1998), he claims the prosecution

violated 18 U.S.C. § 201(c)(2).     Singleton , however, was reversed, and we are

bound by the en banc ruling that § 201 does not prohibit a prosecutor, acting as an

agent of the government, from making “a concession normally granted by the

government in exchange for testimony.”       See United States v. Singleton , 165 F.3d

1297, 1302 (10th Cir.) (en banc),    cert. denied , 119 S. Ct. 2371 (1999).

      The judgment of the district court is AFFIRMED.



                                                       Entered for the Court



                                                       Mary Beck Briscoe
                                                       Circuit Judge




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