                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 18 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-30416

             Plaintiff - Appellee,               D.C. No. 3:06-CR-00067-EJL-1

  v.
                                                 MEMORANDUM *
CAMERON SCOTT GRIFFIN,

             Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                      Argued and Submitted January 12, 2010
                               Seattle, Washington

Before: KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.

       Defendant-Appellant Cameron Scott Griffin (“Griffin”) appeals a conviction

for one count of conspiracy to possess methamphetamine with intent to distribute

in violation of 21 U.S.C. §§ 841(a)(1) and 846, as well as four counts of

distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1). The



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
parties are familiar with the facts of the case so we do not repeat them here. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

      First, we conclude that the district court did not err when it denied Griffin’s

motion to suppress evidence seized from an apartment above his sporting goods

store. The warrant described the place to be searched with sufficient particularity

because it “enable[d] law enforcement officers to locate and identify the premises

with reasonable effort” without “any reasonable probability . . . that the officers

[might have] mistakenly search[ed] another premise[s].” United States v. Mann,

389 F.3d 869, 876 (9th Cir. 2004), cert. denied, 544 U.S. 955 (2005) (citation and

internal quotation marks omitted).

      We also conclude that the magistrate judge—after reviewing the affidavit’s

description of Griffin’s use of the upstairs apartment immediately before he sold

82.5 grams of methamphetamine to a controlled informant—could easily make a

“practical, common-sense decision [that], given all the circumstances set forth in

the affidavit before him, there [was] a fair probability that contraband or evidence

of a crime [would] be found” in the apartment. Illinois v. Gates, 462 U.S. 213, 238

(1983). Probable cause therefore supported the search.

      Second, the district court correctly found that Detective Brian Denny did not

“‘knowingly and intentionally, or with reckless disregard for the truth’” make any


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“erroneous statements or omissions in an affidavit supporting a search warrant” for

Griffin’s home. United States v. Senchenko, 133 F.3d 1153, 1158 (9th Cir. 1998)

(quoting Franks v. Delaware, 438 U.S. 154, 155 (1978)).

      The only erroneous statement in the affidavit is Detective Denny’s

representation that a controlled informant arranged to purchase eight ounces of

methamphetamine from Griffin when in actuality he arranged to purchase six

ounces of methamphetamine. This statement was not made with reckless disregard

for the truth because Drug Enforcement Administration (“DEA”) Agent Rick

Taylor had informed Detective Denny that the arrangement was for eight ounces of

methamphetamine. In addition, this error is immaterial. See Franks, 438 U.S. at

156 (court’s second question is whether “with the affidavit’s false material set to

one side, the affidavit’s remaining content is insufficient to establish probable

cause”).

      Third, ample evidence supports the jury’s rejection of Griffin’s public

authority and entrapment by estoppel defenses. See United States v. Burrows, 36

F.3d 875, 882–83 (9th Cir. 1994) (public authority defense requires a defendant to

possess a reasonable belief that he was authorized to commit illegal acts and the

entrapment by estoppel defense requires a defendant to act in reasonable reliance

on an official representation as to the legality of his actions).


                                            3
      Any rational trier of fact could have found Griffin’s reliance on official

statements—or belief in official authorization—unreasonable when presented with

evidence that (1) Griffin signed a written confidential source agreement that

expired in February 2004, well before the 2006 deals for which he was charged, (2)

Griffin was used as a confidential informant for purchases of drugs, but was never

used as a confidential informant to make sales, (3) immediately prior to the

expiration of the agreement, DEA agents told Griffin he was no longer going to be

used as a confidential informant, (4) during Griffin’s tenure as a confidential

informant he was strictly searched and controlled during his controlled buys but

was never searched or controlled during his later sales for which he was charged,

(5) Griffin was repeatedly told he was no longer a confidential source and to avoid

drug traffickers, (6) there was a nine month period during which there was no

contact between Griffin and the DEA, and (7) when Griffin called DEA Agent

Jacob Gilliam on the day of the deal during which he was arrested, Agent Gilliam

told him “not to do any kind of drug negotiating.”

      Fourth, the district court did not err by using a model jury instruction on the

public authority defense. Griffin’s proposed addition—that a belief in an official

authorization may be reasonable “even if based on mistake”—has previously been




                                          4
rejected by this court. See United States v. Davis, 76 F.3d 311, 314 (9th

Cir. 1996).

      Finally, contrary to his argument on appeal, Griffin acknowledged receiving

pretrial a redacted DEA manual in a filing with the district court.

      AFFIRMED.




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