                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3500
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * Southern District of Iowa.
                                         *
Steven Wayne Pruett,                     *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 10, 2007
                                 Filed: September 6, 2007
                                  ___________

Before MELLOY, BOWMAN, and GRUENDER, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       A jury convicted Steven Wayne Pruett on six criminal counts relating to the
possession and distribution of methamphetamine. Pruett appeals, contending that the
District Court1 erred by: (1) admitting evidence derived from a search of his residence,
(2) denying his motion to dismiss two counts allegedly filed in retaliation for his
refusal to plead guilty, (3) denying his motion for a judgment of acquittal on the
charge of conspiracy to distribute methamphetamine, (4) denying his motion for a new



      1
        The Honorable Ronald E. Longstaff, then Chief Judge of the United States
District Court for the Southern District of Iowa.
trial, and (5) submitting to the jury the charge of use of a firearm in furtherance of a
drug trafficking crime. We affirm.

                                           I.

       On September 25, 2004, Deputy Jess Aesoph of the Monona County, Iowa,
Sheriff's Department was told by a confidential informant (CI) that Pruett was in
possession of a large amount of methamphetamine and had attempted to sell some of
it to the CI the previous day. The CI stated that Pruett had been driving a blue
Chevrolet pickup truck at the time of the attempted sale. The CI gave Deputy Aesoph
directions for locating Pruett's residence on Ideal Avenue in Pisgah, Iowa.

       Deputy Aesoph was familiar with Pruett from a previous traffic incident in
which Pruett was driving a blue Chevrolet pickup truck. A vehicle records check
confirmed that a blue Chevrolet truck was registered to Pruett. Deputy Aesoph also
ran a check on Pruett's driver's license and discovered that two addresses were listed
for Pruett in Pisgah—one of them on Ideal Avenue. To ensure that he had Pruett's
correct residential address, Deputy Aesoph followed the directions given by the CI.
The directions led him to a house on Ideal Avenue where a blue Chevrolet pickup
truck was parked. Deputy Aesoph took photographs of the house and the truck.
Deputy Aesoph also spoke with officers from the Harrison County, Iowa,2 Sheriff's
Department who confirmed the location of Pruett's residence.

      On September 26, 2004, Deputy Aesoph applied for a warrant to search Pruett's
residence at 104 Ideal Avenue in Pisgah, Iowa. A state magistrate judge issued the
warrant, and Deputy Aesoph and Harrison County officers executed the warrant that
day. During the search, officers found two firearms, 9.65 grams of methamphetamine,
3.96 grams of marijuana, and a digital scale.


      2
       Pisgah is in Harrison County, which borders Monona County.

                                          -2-
       On June 22, 2005, a six-count indictment was filed in the Southern District of
Iowa charging Pruett with conspiracy to distribute methamphetamine (Count 1),
possession with intent to distribute methamphetamine (Count 2), possession of a
firearm in furtherance of a drug trafficking crime as charged in Counts 1 and 2 (Count
3), possession of a firearm by an unlawful user of a controlled substance (Count 4),
and two counts of distribution of methamphetamine to a person under twenty-one
years of age (Counts 5 and 6). Pruett was arrested on June 27, 2005. At the
arraignment, an Assistant United States Attorney informed Pruett's counsel that
additional charges were being investigated. On July 22, 2005, a superseding
indictment was filed, adding charges of distribution of methamphetamine (Count 7)
and use of a firearm in furtherance of a drug trafficking crime (Count 8).

       Pruett filed a motion to suppress evidence derived from the search of his
residence and a motion to dismiss Counts 7 and 8. The District Court denied both
motions, and the case proceeded to trial. On March 9, 2006, a jury found Pruett guilty
on Counts 1, 2, 4, 6, 7, and 8, and not guilty on Counts 3 and 5. After denying Pruett's
motion for a judgment of acquittal or a new trial, the District Court sentenced Pruett
to a term of 168 months' imprisonment.

                                          II.

       Pruett's first argument on appeal is that the District Court erred by failing to
suppress evidence obtained from the search of his residence. Pruett asserts that the
search warrant application failed to establish probable cause that evidence of a crime
would be found at his residence. The District Court declined to make a determination
as to probable cause, ruling instead that even assuming probable cause was lacking,
the good-faith exception to the Fourth Amendment exclusionary rule applied and the
evidence was admissible. See United States v. Leon, 468 U.S. 897, 921–22 (1984)
(establishing the good-faith exception). In reviewing a district court's denial of a



                                          -3-
suppression motion, we review factual findings for clear error and legal conclusions
de novo. United States v. Rodriguez, 484 F.3d 1006, 1010 (8th Cir. 2007).

       If the District Court was correct in concluding that the Leon good-faith
exception to the exclusionary rule applies, it is unnecessary for us to engage in a
probable-cause analysis. See Rodriguez 484 F.3d at 1011. We therefore choose to
begin by reviewing the District Court's application of the Leon exception. Under
Leon, "the Fourth Amendment exclusionary rule is not to be applied to exclude the
use of evidence obtained by officers acting in reasonable reliance on a detached and
neutral magistrate judge's determination of probable cause in the issuance of a search
warrant that is ultimately found to be invalid." United States v. Hessman, 369 F.3d
1016, 1020 (8th Cir. 2004) (internal quotations and citations omitted), cert. denied,
543 U.S. 1072 (2005). The Leon exception recognizes that "the exclusionary rule is
designed to deter police misconduct rather than to punish the errors of judges and
magistrates." Leon, 468 U.S. at 916. Thus, evidence seized in carrying out a search
warrant should not be suppressed on account of an absence of probable cause when
an officer's reliance on the warrant is objectively reasonable. Hessman, 369 F.3d at
1020. The Leon exception does not apply, however, in four circumstances: (1) when
"the issuing magistrate wholly abandoned his judicial role," (2) when the warrant is
"based on an affidavit 'so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable,'" (3) when the warrant is "so facially
deficient . . . that the executing officers cannot reasonably presume it to be valid," and
(4) when the issuing magistrate was misled by false information in an affidavit that
the affiant knowingly or recklessly included. Leon, 468 U.S. at 923 (citations
omitted). Pruett contends that these circumstances are present here, making the Leon
exception inapplicable and requiring the suppression of evidence obtained from the
search of his residence. After reviewing the actions of the magistrate and the police
officers in this case, we disagree and conclude that the Leon exception applies.




                                           -4-
                                          A.

       First, Pruett asserts that the magistrate who issued the warrant abandoned his
neutral and detached role by ratifying the uncorroborated statements of Deputy
Aesoph without performing a proper probable-cause analysis. In support of this
theory, Pruett points to the magistrate's mischaracterization of the CI as a "peace
officer" in the endorsement attached to the warrant and the magistrate's issuance of the
warrant despite "the facially obvious defects in the [warrant] Application."
Appellant's Am. Br. at 11. Pruett further contends that the magistrate did not follow
Iowa law requiring a magistrate issuing a search warrant to include an "abstract of
each witness' testimony" upon which the magistrate relied. Iowa Code § 808.3 (2005).



       Although the magistrate mistakenly identified the CI as a "peace officer" in the
endorsement of the warrant, it appears that at that point in the endorsement the
magistrate was describing the affiant and simply wrote the wrong word. This
conclusion is supported by the fact that the magistrate identified the CI as a
"concerned citizen" in the next section of the endorsement. While this mistake may
show carelessness, it does not demonstrate the abandonment of the magistrate's neutral
and detached role. Nor do the minor facial defects on the warrant application,
discussed below, suggest that the magistrate abandoned his judicial role. We further
give little credence to Pruett's argument, raised for the first time on appeal and thus
evaluated under the plain-error standard,3 that the magistrate violated state law in
issuing the warrant. While Iowa Code section 808.3 generally requires the magistrate




      3
       Arguments raised for the first time on appeal are reviewed for plain error.
United States v. Ruff, 472 F.3d 1044, 1047 (8th Cir.), cert. denied, 127 S. Ct. 2069
(2007).

                                          -5-
to include an abstract of a witness's testimony or a witness's affidavit,4 section 808.3
makes a specific exception when probable cause is based on information supplied by
a confidential informant: "[I]f the grounds for issuance are supplied by an informant,
the magistrate shall identify only the peace officer to whom the information was
given." Iowa Code § 808.3 (2005). Here, the warrant was issued in reliance on the
information provided by a CI to Deputy Aesoph, and Deputy Aesoph was properly
identified in the warrant. In short, we find "no indication that the magistrate was
biased or impartial, nor is there any evidence of a pattern of passive, automatic
issuance of warrants." United States v. Hallam, 407 F.3d 942, 946 (8th Cir. 2005).
We cannot conclude that the magistrate "wholly abandoned his judicial role." Leon,
468 U.S. at 923.

                                          B.

       Next, Pruett contends that the warrant application5 was so deficient that the
officers executing the warrant could not have had an objectively reasonable belief in
the existence of probable cause.6 See Leon, 468 U.S. at 923. Again, we disagree.
The affidavit submitted with the warrant application recounted that a CI advised
Deputy Aesoph that he had seen Pruett the previous day in possession of "a ball of
methamphetamine approximately the size of a tennis ball." Appellant's Am. App. at
4. According to the CI, Pruett was driving a blue 1997 Chevrolet pickup truck when


      4
       To the extent Deputy Aesoph was a witness, this requirement was met by the
inclusion of Deputy Aesoph's affidavit in the warrant application.
      5
       The warrant application was signed and sworn to by Deputy Aesoph. By
reference, it included an affidavit by Deputy Aesoph (Attachment A), an "informant
attachment" (Attachment B), and a list of property to be seized (Attachment C). See
Appellant's Am. App. at 3–6.
      6
      In this argument, Pruett seems to be addressing both the second and third
circumstances that prevent the application of the Leon exception.

                                          -6-
he stopped and attempted to distribute methamphetamine to the CI. The affidavit
included the license number of Pruett's truck and stated that the CI had given credible
information in the past that had led to two convictions. An attachment to the warrant
application further stated that the CI was a "concerned citizen with no reason to
fabricate the information." Id. at 5. The warrant application listed the correct address
of Pruett's residence as the property to be searched and described the residence as a
tan-colored home. A picture of the home was also attached to the application.

       Additional facts known to Deputy Aesoph but not included in the affidavit
further bolstered the officers' good-faith reliance on the validity of the search warrant.
See Rodriguez, 484 F.3d at 1011 ("When assessing the good faith of the officers, we
look to the totality of the circumstances, including any information known to the
officers, but not included in the affidavit."). Deputy Aesoph testified at the
suppression hearing that: (1) he performed a vehicle-records search and found that a
blue Chevrolet pickup truck was registered to Pruett; (2) he ran a search of Pruett's
driver's license and determined that Pruett was listed as residing on Ideal Avenue in
Pisgah; (3) he corroborated the CI's description and location of Pruett's residence by
driving to the residence based on the CI's directions; (4) he took pictures of the blue
truck at the residence; (5) he spoke to Harrison County personnel about Pruett prior
to applying for the warrant; and (6) he knew from personal experience that Pruett
drove a blue Chevrolet pickup truck.

       Pruett notes that the warrant application contained errors, including the
misspelling of his last name (as "Pruitt") and the incorrect location of his house
(stating that the house was on the west side, rather than the east side, of the street).
These minor clerical errors, however, do not undermine the reasonableness of the
officers' reliance on the validity of the warrant. See United States v. Thomas, 263
F.3d 805, 808–09 (8th Cir. 2001) (holding the Leon exception applicable where the
address on the warrant was different from the address in the affidavit), cert. denied,
534 U.S. 1146 (2002); United States v. Carlson, 697 F.2d 231, 238 (8th Cir. 1983)

                                           -7-
(ruling that unintentional mistake on the part of an officer applying for a search
warrant in and of itself will not render a warrant invalid). We note that the warrant
listed the correct street address for the residence to be searched and an attached picture
of the residence further ensured that officers executed the warrant at the correct
location.

       Pruett next asserts that the warrant application failed to establish a nexus
between his alleged criminal activity—the attempted distribution of methamphetamine
from his pickup truck—and his residence. It is true that the warrant application did
not specifically mention the presence of criminal activity at Pruett's residence, but we
nonetheless conclude that the executing officers did not act entirely without reason in
relying on the magistrate's determination that evidence of a crime would be found in
the residence. Although our Circuit has not adopted a per se rule that evidence of a
defendant's drug trafficking establishes an inference that further evidence of drug
trafficking will be found in the defendant's residence, we have held that in applying
the Leon exception, such evidence of a defendant's drug trafficking indicated that
officers acted reasonably in relying on a search warrant issued for the defendant's
residence. See United States v. Ross, 487 F.3d 1120, 1123 (8th Cir. 2007); see also
United States v. Marion, 238 F.3d 965, 969 (8th Cir. 2001) (holding that executing
officers reasonably relied on judge's determination that there was probable cause to
search motel room for evidence of drug activity even though search warrant affidavit
failed to mention a connection between motel room and criminal activity).

       In addition, Pruett attacks the warrant affidavit because it was based on the
uncorroborated statements of a confidential informant. We addressed a similar
situation in Hallam and concluded, as we do here, "that the affidavit, while scant, was
not so utterly lacking in facts as to render [the officers'] belief that it established
probable cause 'entirely unreasonable.'" 407 F.3d at 946. Considering the totality of
the circumstances, we conclude that it was objectively reasonable for the officers to
rely on the validity of the search warrant. See Leon, 468 U.S. at 922–23.

                                           -8-
                                          C.

        Finally, Pruett argues that even if the warrant was facially sufficient, the
evidence from the search should have been suppressed because Deputy Aesoph's
affidavit in support of the warrant included false facts and omitted material facts with
the intent to mislead the magistrate. See Franks v. Delaware, 438 U.S. 154, 155–56
(1978); Leon, 468 U.S. at 923. Pruett bases this argument on inconsistencies between
the trial testimony of Bradley Kuhlman, who was identified as the CI discussed in the
affidavit, and information Deputy Aesoph included in the affidavit. Specifically,
Kuhlman testified that he told Deputy Aesoph that he saw methamphetamine in
Pruett's house, not in Pruett's pickup truck. Moreover, the affidavit omitted any
mention of Kuhlman's criminal history, which included felony offenses.

       We have examined the trial transcript and warrant affidavit and have found no
indication that the affidavit included intentionally or recklessly false information.
While Kuhlman's recollection at trial of the details concerning his observation of
Pruett with methamphetamine differed from the description recounted by Deputy
Aesoph in the affidavit, the inconsistencies are understandable considering the length
of time between Kuhlman's statement and trial testimony. The trial was held
approximately one and one-half years after the warrant was sought. Moreover, with
regard to the key facts, Kuhlman's trial testimony was consistent with the statements
recounted by Deputy Aesoph: Kuhlman observed Pruett with a large amount of
methamphetamine, and Pruett attempted to sell some of the methamphetamine to
Kuhlman.

      Nor has Pruett demonstrated that Deputy Aesoph intentionally or recklessly
omitted information about Kuhlman's criminal history in an attempt to mislead the
magistrate. At the suppression hearing, Deputy Aesoph testified that he did not have
access to Kuhlman's criminal history at the time he completed the warrant application.
See United States v. Allen, 297 F.3d 790, 795 (8th Cir. 2002) (holding that omissions

                                          -9-
of informant's criminal history from warrant affidavit did not support suppression
where the affiant did not know the exact nature of the criminal history). Moreover,
we do not believe that the information would have changed the magistrate's probable-
cause analysis had it been included in the affidavit. Kuhlman's credibility was
supported by the fact that he had previously given Deputy Aesoph credible
information leading to two arrests and by the fact that Deputy Aesoph was able to
corroborate the information Kuhlman provided regarding Pruett's pickup truck and
residence. Cf. id.; United States v. LaMorie, 100 F.3d 547, 555 (8th Cir. 1996)
(stating that the details of an informant's criminal record were not material to
magistrate's credibility determination where magistrate was generally aware of the
informant's crimes and the informant's credibility was supported by other evidence).

      We reject Pruett's arguments that the circumstances of this case preclude the
application of the Leon exception. We agree with the District Court that the Leon
exception applies and affirm the District Court's denial of Pruett's motion to suppress
evidence.

                                          III.

       Pruett next argues that the District Court should have granted his motion to
dismiss the counts added in the superseding indictment on the basis of prosecutorial
vindictiveness. He claims that Counts 7 and 8 were filed in retaliation for his refusal
to plead guilty to the charges in the original indictment. In support of his argument,
Pruett notes that the superseding indictment was filed just five days after his attorney
informed the prosecutor that Pruett would not plead guilty and wished to proceed to
trial.

        While the government may take action to punish an individual for violating the
law, punishing an individual for exercising a constitutional right, such as the right to
trial, amounts to prosecutorial vindictiveness. United States v. Goodwin, 457 U.S.

                                         -10-
368, 372 (1982). The burden is on Pruett to prove prosecutorial vindictiveness. See
United States v. Campbell, 410 F.3d 456, 461 (8th Cir.), cert. denied, 126 S. Ct. 492
& 768 (2005). This burden is a heavy one because we recognize the broad discretion
that prosecutors have in enforcing criminal statutes. Id. Moreover, the burden is
especially heavy when the additional charges were brought prior to the start of trial,
as they were here. Goodwin, 457 U.S. at 381–82 ("At this stage of the proceedings,
the prosecutor's assessment of the proper extent of prosecution may not have
crystallized. . . . A prosecutor should remain free before trial to exercise the broad
discretion entrusted to him to determine the extent of the societal interest in
prosecution."). The Supreme Court has refused to recognize a presumption of
vindictiveness under the facts alleged by Pruett: "The possibility that a prosecutor
would respond to a defendant's pretrial demand for a jury trial by bringing charges not
in the public interest that could be explained only as a penalty imposed on the
defendant is so unlikely that a presumption of vindictiveness certainly is not
warranted." Id. at 384 (emphasis in original). Rather, to carry his burden, Pruett must
present objective evidence that the filing of the superseding indictment was motivated
by a desire to punish him for exercising a legal right. See id.; Campbell, 410 F.3d at
461.

      Pruett has presented no evidence that the government filed Counts 7 and 8 to
punish him for exercising his right to a jury trial on the counts in the original
indictment. And because no presumption of vindictiveness has arisen, there is nothing
to support Pruett's claim of vindictive prosecution. We affirm the District Court's
refusal to dismiss the superseding indictment on this ground.




                                         -11-
                                          IV.

       Pruett next asserts that the District Court erred in denying his post-trial motion
for a judgment of acquittal on Count 1. See Fed. R. Crim. P. 29(c). Count 1 charged
Pruett with conspiracy to distribute methamphetamine between January 2003 and
September 2004. According to Pruett, the evidence presented at trial was insufficient
to establish his participation in a conspiracy. We review de novo the denial of a
motion for a judgment of acquittal. United States v. Peters, 462 F.3d 953, 957 (8th
Cir. 2006). "We view the evidence in the light most favorable to the jury's verdict and
draw all reasonable inferences in the government's favor, upholding the conviction as
long as 'there is an interpretation of the evidence that would allow a reasonable-
minded jury to find the defendant[] guilty beyond a reasonable doubt.'" Id. (quoting
United States v. Vig, 167 F.3d 443, 447 (8th Cir.), cert. denied, 528 U.S. 859 (1999)).

       To convict Pruett of conspiracy, the government had to prove (1) that there was
an agreement to distribute drugs, (2) that Pruett had knowledge of the agreement, and
(3) that Pruett intentionally joined the conspiracy. See United States v. Jiminez, 487
F.3d 1140, 1146 (8th Cir. 2007); United States v. Smith, 487 F.3d 618, 620 (8th Cir.
2007). The agreement need not be formal or explicit, however. Smith, 487 F.3d at
620. Rather, "'the government need only establish a tacit understanding between the
parties, and this may be shown wholly through the circumstantial evidence.'" Jiminez,
487 F.3d at 1146 (quoting United States v. Cabrera, 116 F.3d 1243, 1245 (8th Cir.
1997)).

       Pruett admits that the evidence adduced at trial indicated that he purchased
small quantities of methamphetamine from a source known as "Alfredo" in Lincoln,
Nebraska. He argues, however, that the government produced no evidence indicating
that he entered into an agreement to distribute the methamphetamine. After carefully
reviewing the record in the light most favorable to the guilty verdict, we hold that a
reasonable-minded jury could have found Pruett guilty of conspiracy.

                                          -12-
       Pruett's contention that he purchased only small quantities of methamphetamine
from Alfredo is belied by witness testimony at trial. Tara Clemon testified that she
accompanied Pruett to Lincoln, Nebraska, in July 2004 to obtain methamphetamine
and that Pruett obtained approximately one ounce of methamphetamine in Lincoln
about once a week for four to six weeks during the summer of 2004. Both Clemon
and Alan Spencer testified that they had observed Pruett with approximately one
ounce of methamphetamine that Pruett indicated he had obtained from Alfredo. Lisa
Hall testified that she also accompanied Pruett to Lincoln to obtain methamphetamine.
The two went to an apartment complex in Lincoln, Pruett went inside, and after he
returned to the pickup truck, Hall found a package of methamphetamine in her purse;
Pruett took the package after the two returned to Iowa. Given Hall's description of the
size of the package, Special Agent Christopher Leighter estimated that it contained
between two ounces and one-quarter pound of methamphetamine. Leighter testified
that methamphetamine is commonly ingested in doses of one-quarter gram.7 As one
ounce equals approximately 28.35 grams, each ounce of methamphetamine purchased
by Pruett could have been divided into 113 individual doses. It was reasonable for the
jury to infer that the quantity of drugs Pruett purchased from Alfredo was purchased
for resale and not for personal use. See United States v. Schindler, 77 F.3d 245,
246–47 (8th Cir. 1996) (per curiam) ("Expert testimony established that a half-ounce
of methamphetamine was an amount associated with distribution, rather than personal
use."). Our Court has ruled that multiple purchases of resale quantities of drugs
support a conviction for conspiracy to distribute. United States v. Delpit, 94 F.3d
1134, 1152 (8th Cir. 1996).

        Pruett's conspiracy conviction is further supported by the trial testimony of a
number of witnesses who testified that Pruett distributed methamphetamine. Clemon
testified that she obtained from Pruett at least one gram of methamphetamine daily

      7
       Leighter stated, however, that heavy drug users often ingest more than one-
quarter gram per day. Several witnesses testified that they ingested 1.7 grams or more
of methamphetamine per day during the relevant time period.

                                         -13-
from about mid-June to mid-July 2004. Clemon also indicated that she had witnessed
Pruett giving methamphetamine to other people on five or six occasions. Spencer
testified that Pruett gave him between 1.75 grams and 3.5 grams of methamphetamine
on one occasion in July 2004 and smaller quantities of methamphetamine on six or
seven occasions between July and September 2004. Troy Garrison testified that he
purchased one-half ounce of methamphetamine from Pruett on one occasion around
August 2004. Perry Christensen stated that he purchased one-quarter ounce of
methamphetamine from Pruett on two occasions. Christensen further testified that he
purchased between 1.7 grams and 3.5 grams of the drug from Pruett over one hundred
times between spring or summer 2003 and August 2004. Kuhlman testified that he
purchased between one-half gram and 1.75 grams of methamphetamine from Pruett
several times from the winter of 2003/2004 until September 2004. Kuhlman also
witnessed Pruett sell methamphetamine to others, including on one occasion when
Pruett "fronted" (distributed the drugs but did not demand payment until a later date)
one-half ounce of the drug to a female. A number of witnesses testified that Pruett did
not manufacture methamphetamine—and no contrary evidence was presented on this
point—making it reasonable to infer that the methamphetamine Pruett sold was the
methamphetamine he obtained from Alfredo.

      Given the wealth of evidence showing both Pruett's purchases and sales of
methamphetamine, we conclude that a reasonable jury could have found him to be a
knowing member of a conspiracy to distribute the drug. See United States v.
Bordeaux, 436 F.3d 900, 903–04 (8th Cir. 2006) (upholding conspiracy conviction
where the record included testimony from witnesses who purchased
methamphetamine from the defendant, testimony from witnesses who sold
methamphetamine to the defendant, and testimony from a witness who observed the
presence of drugs after a "source" left the defendant's house). We affirm the District
Court's denial of Pruett's motion for a judgment of acquittal.




                                         -14-
                                           V.

        Pruett alleges that the District Court erred in denying his motion for a new trial
under Federal Rule of Criminal Procedure 33. Rule 33 provides that a court may grant
a new trial "if the interest of justice so requires." In deciding whether to grant a new
trial, a district court need not view the evidence in the light most favorable to the
verdict, but instead may weigh the evidence and evaluate the credibility of witnesses.
United States v. Walker, 393 F.3d 842, 847 (8th Cir.), cert. denied, 126 S. Ct. 463
(2005). A district court should exercise its authority to grant a new trial "'sparingly
and with caution.'" Id. at 848 (quoting United States v. Lincoln, 630 F.2d 1313, 1319
(8th Cir. 1980)). We review the "denial of a motion for a new trial for abuse of
discretion and will reverse only if the evidence weighs heavily enough against the
verdict that a miscarriage of justice may have occurred." Id. (internal quotations and
citation omitted).

       Pruett asserts that inadequacies in the search warrant and the alleged Franks
violation, as well as inadequate evidence to support the conspiracy conviction, require
a new trial. We disagree and conclude that there has been no miscarriage of justice
in this case. As discussed above, the evidence obtained from the search of Pruett's
residence was properly admitted under the Leon exception, and the differences
between Aesoph's affidavit and Kuhlman's testimony were not material, see United
States v. Packer, 730 F.2d 1151, 1156 (8th Cir. 1984) (ruling that newly discovered
evidence must be material to support a new trial). Moreover, after reading the trial
transcript, we conclude that the evidence was more than sufficient for the jury to have
found Pruett guilty of the crimes charged. See Walker, 393 F.3d at 848 (affirming
denial of new trial where the evidence supported the jury's verdict). We affirm the
District Court's denial of Pruett's motion for a new trial.




                                          -15-
                                         VI.

       Finally, Pruett challenges his conviction on Count 8 for using a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). This
count was based on Pruett's receipt of a firearm in exchange for methamphetamine.
Pruett argues that the term "uses" in § 924(c)(1) requires something more than mere
receipt of a firearm. Thus, according to Pruett, the District Court erred in submitting
Count 8 to the jury. As Pruett concedes, Eighth Circuit law precludes this argument.
In United States v. Cannon, we ruled that "a person can 'use' a firearm in violation of
§ 924(c) by 'receiving' the firearm in a drugs for weapon exchange." 88 F.3d 1495,
1509 (8th Cir. 1996). While Pruett directs us to a case currently before the Supreme
Court that addresses this issue, see Watson v. United States, 127 S. Ct. 1371 (2007),
Cannon nonetheless remains good law by which we are bound. We affirm the District
Court and uphold Pruett's conviction on Count 8.

                                         VII.

      For the foregoing reasons, the judgment of the District Court is affirmed.
                      ______________________________




                                         -16-
