                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0050n.06

                                           No. 08-2437


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
UNITED STATES OF AMERICA,                                                         Jan 26, 2010
                                                                            LEONARD GREEN, Clerk
       Plaintiff-Appellee,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
WILLIAM ELIAS KHAMI,                                 EASTERN DISTRICT OF MICHIGAN

       Defendant-Appellant.

                                               /




BEFORE:        NORRIS, CLAY, and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. Defendant, William Elias Khami, appeals from his felon-in-

possession of a firearm conviction pursuant to 18 U.S.C. § 922(g)(1) resulting from a conditional

guilty plea that reserved his right to appeal two issues to this Court. Defendant first appeals the

denial of his motion to suppress the fruits of the search of his home, claiming that the underlying

search warrant was defective and that the search and seizure was in violation of his Fourth

Amendment rights. In addition, Defendant appeals the denial of a motion to dismiss his indictment

based on a challenge to the constitutionality of 18 U.S.C. § 922(g)(1) in light of recent Supreme

Court precedent interpreting the Second Amendment. For the reasons set forth below, we AFFIRM

the district court’s orders denying both motions.
                                            No. 08-2437

                                         BACKGROUND

       Two separate law enforcement ecstasy investigations were ongoing in August 2007 when

both investigations focused on law enforcement’s suspicions regarding activities taking place at

Defendant’s home at 19168 Havana Street, Detroit, Michigan. The investigation headed by

Immigration and Customs Enforcement (ICE) did not result in law enforcement seeking a search

warrant, but the government alleged in its theory of the criminal case, which is not before this Court,

that an ecstasy transaction occurred at the 19168 Havana Street location among Roni Shaba and four

others. The investigation that led to the search of Defendant’s home was led by CHIEF, a combined

task force of state, local, and federal law enforcement.

       The CHIEF investigation began surveilling two co-defendants, Kenzill Stanciel and Carlos

Willis, on August 28, 2007. CHIEF investigators observed Stanciel and Willis meet with co-

defendant Mario Harrell at a BP station where the three appeared to engage in a suspicious

transaction in which items were transferred from Stanciel’s and Willis’ vehicles to Harrell’s vehicle.

Willis and Stanciel were then observed following Harrell in tandem in their vehicles. Willis and

Stanciel were later apprehended during traffic stops, and approximately 9,500 ecstasy pills were

recovered from Stanciel’s vehicle. Willis then told investigators that the brown paper bag transferred

to Harrell contained money utilized to purchase the ecstasy recovered during the traffic stop.

According to Willis, the actual drug transaction took place near 19168 Havana Street, but not at that

location. Willis told CHIEF investigators that he saw “an Arab male” get into Harrell’s car at a

house near 19168 Havana Street and that he

       observed Harrell hand the bag containing the money to [an Arab male] in exchange
       for a brown paper bag which Willis had previously seen in [the Arab male]’s

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        possession. According to Willis, the brown paper bag was given to Stanciel and
        when arrested shortly thereafter, it was found in his possession, containing the 9,500
        pills of Ecstasy.

(Appellee’s Br. 4). Willis identified a photo of Defendant as the Arab male he linked to this drug

transaction. It was determined after indictment that Defendant was not the Arab male in question,

but that Roni Shaba was. Willis also identified, from a photo, Defendant’s residence as near the

location where the drug transaction occurred involving the Arab male.

        CHIEF investigators were unable to follow the car driven by Harrell, but they were able to

trace the car to Harrell and obtain his address: 19329 Riopelle Street, Detroit, Michigan. The

officers observed Harrell at that address and followed him to Defendant’s residence. They observed

Harrell and an individual matching Defendant’s description having a meeting. CHIEF investigators

did a utilities check to reveal that 19168 Havana Street was the residence of William Elias Khami

and then performed a Secretary of State search to obtain the photo of Defendant. The officers also

learned that Defendant had two prior drug felony convictions, including one for methamphetamine

delivery and manufacturing.

        During the interrogation of Willis, which involved two officers (one from CHIEF, one from

DEA) questioning him on separate occasions on August 28, 2007, Willis also described in detail the

house where the actual drug transaction began with the Arab male getting into Harrell’s vehicle.

That house was not the same house as Defendant’s residence, which Willis identified as near the

place where the Arab male – whom Willis identified from a photograph as Defendant – was picked

up to participate in the transaction.




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       The facts that Defendant alleges were left out of the supporting affidavit for the search

warrant are summarized in his brief as follows:

       Willis describes the house as South of 7 Mile Road; Mr. Khami’s house is North of
       7 Mile Road. Willis describes the house as a “two-family flat”; Mr. Khami’s home
       is a single-family dwelling. Willis describes the house as being “beige brick”; Mr.
       Khami’s house has white aluminum siding on it. Willis describes the house as being
       located “near the corner”; Mr. Khami’s house is in the middle of his block

(Appellant’s Br. at 16, punctuation modified).

       Defendant was indicted on September 13, 2007 (superseded by a corrected indictment on

January 31, 2008) on three counts in an indictment that included other defendants and four counts

total: Count I: conspiracy to possess with intent to distribute more than 9,500 pills of 3, 4

methylenedioxymethamphetamine (“Ecstasy”) in violation of 21 U.S.C. § 841(a)(1); Count III:

distribution of the same in violation of 21 U.S.C. § 841(a)(1); Count IV: being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). Counts I and III were dismissed as to Defendant

on March 12, 2008 on motion of the government.

       Defendant filed two motions, both of which were denied, that challenged the remaining count

of the indictment (Count IV). On December 11, 2007, Defendant filed a motion to suppress the

evidence (in particular the firearm) recovered in the search of his home, arguing that the search

warrant was without probable cause and that the affidavit supporting it left out material facts

intentionally to mislead the magistrate. A hearing on this motion was held on January 24, 2008, and

the motion was denied on May 12, 2008 after supplemental briefing. On January 16, 2008,

Defendant filed a motion to dismiss Count IV of the indictment arguing that the statute under which




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he was indicted is an unconstitutional infringement of his Second Amendment right to bear arms.

The district court denied this motion on March 10, 2008.

         Defendant pled guilty to Count IV of the indictment on June 3, 2008 with the benefit of a

conditional plea agreement that preserved his right to appeal the denial of both motions and also

noting the then pending Supreme Court decision in District of Columbia v. Heller, --- U.S. ---, 128

S.Ct. 2783 (2008). The district court sentenced Defendant to 51 months’ incarceration with three

years of supervised release to follow on October 24, 2008. Defendant then timely appealed to this

Court.

                                          DISCUSSION

I.       DEFENDANT’S MOTION TO SUPPRESS

         A.     Standard of Review

         This Court reviews the denial of a motion to suppress using a standard of review in which

factual findings of the district court are reviewed for clear error and questions of law are reviewed

de novo. United States v. Blair, 524 F.3d 740, 747 (6th Cir. 2008); United States v. Herndon, 393

F.3d 665, 667 (6th Cir. 2005). “When a district court has denied a motion to suppress, we consider

the evidence in the light most favorable to the government.” United States v. Long, 464 F.3d 569,

572 (6th Cir. 2006) (citing United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc)). The

district court’s denial of a Franks hearing is reviewed under the same standard of review as the

motion to suppress. United States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir. 2008) (citing United

States v. Graham, 275 F.3d 490, 505 (6th Cir. 2001)).




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       B.      The District Court Did Not Err in Denying the Motion to Suppress

       Defendant makes three arguments in support of his appeal: 1) that the search warrant was not

supported by probable cause on its face; 2) that the affidavit supporting the search warrant was

intentionally misleading in its material omission of facts which, if included, would have defeated the

finding of probable cause by the magistrate; and 3) that the officers are not entitled to the exception

to the exclusionary rule for good faith reliance on a facially valid warrant. On the first two theories,

the district court did not err in denying the motion to suppress evidence from the search of

Defendant’s home. The third theory, the good faith exception, need not be addressed given the

disposition of the other two.

       Defendant’s motion to suppress based on his first argument that the search warrant was not

supported by probable cause on its face is unavailing:

       To determine whether probable cause for a search exists, a judge issuing a warrant
       must “make a practical, common-sense decision whether, given all the circumstances
       set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’
       of persons supplying hearsay information, there is a fair probability that contraband
       or evidence of a crime will be found in a particular place.” The duty of a reviewing
       court is simply to ensure that the magistrate had a “substantial basis” for concluding
       that probable cause existed.

United States v. Gunter, 551 F.3d 472, 479 (6th Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213,

238-239 (1983)). Once the magistrate has determined that probable cause supports the issuing of

a search warrant, that determination is conclusive unless the evidence on the record compels a

different conclusion or it can be shown that the magistrate acted arbitrarily. See United States v.

Allen, 211 F.3d 970, 973 (6th Cir. 2000).




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        A search warrant affidavit must contain sufficient allegations to support the magistrate’s

finding that there is a nexus between the location to be searched and probable criminal activity.

United States v. Laughton, 409 F.3d 744, 749-50 (6th Cir. 2005); United States v. Carpenter, 360

F.3d 591, 594-95 (6th Cir. 2004) (en banc). The affidavit need not show sufficient allegations to

support a finding that criminal activity is actually occurring at that location, but must include

allegations sufficient to show a link between probable criminal activity and that specific location.

United States v. Jones, 159 F.3d 969, 974-75 (6th Cir. 1998).

        The search warrant affidavit in this case, which was fairly lengthy, consisted of the following

allegations. First, the CHIEF investigator alleged that in his lengthy experience in law enforcement

and in drug investigations, the articles sought in the search warrant are the kind of evidence usually

recovered from homes of people who are suspected of involvement in drug trafficking. The affidavit

then details the CHIEF surveillance of three vehicles believed to be involved in narcotics trafficking

which led to the recovery of 9,500 ecstasy pills in a traffic stop of two of the vehicles. The affidavit

then discusses using the license plate number of vehicle #3 to determine the registered address, and

law enforcement officers then going to that address and observing the black male previously seen

participating in the three-vehicle transaction. That male was followed to 19168 Havana Street where

he met with an Arab male who had come from inside the home. Then the affidavit discusses

information obtained from Willis, one of the defendants arrested in the traffic stop of the first two

vehicles which describes the drug transaction that occurred at an unknown house, and then alleges

that Willis identified Defendant as the Arab male involved in that transaction and identified 19168

Havana Street from photographs as near the location of the drug transaction. The affidavit concludes


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                                             No. 08-2437

with allegations that Defendant lists 19168 Havana Street as his address on his driver’s license and

that Defendant has two prior drug convictions.

        The allegations in the affidavit supporting the search warrant were sufficient to support an

independent determination by the magistrate that there was probable cause to search the home.

There was evidence from a named informant identifying Defendant from a photograph as involved

in the transaction. The independent observations of the CHIEF investigators also implicated

Defendant’s involvement and created a nexus to the house because those officers saw the driver of

the third vehicle (Harrell) go to Defendant’s house and meet with him shortly after the drug

transaction. While that surveillance alone would probably not be sufficient to establish probable

cause since there is no allegation that Defendant received any goods from Harrell in that meeting so

as to create suspicion regarding his involvement in the ecstasy ring, it does lend credibility to Willis’

identification of Defendant as the Arab male involved. Considering the totality of the circumstances,

this evidence was sufficient to establish a nexus between criminal activity and Defendant’s home.

Once that determination was made, the magistrate could rely upon the expertise of the officer

swearing the affidavit, assuming the officer could attest to sufficient experience in these kinds of

criminal investigations, to draw reasonable inferences as to what types of evidence might be

recovered in the home. See United States v. Williams, 544 F.3d 683, 687 (2008) (citing United

States v. Caicedo, 85 F.3d 1184, 1192-93 (6th Cir. 1996)).

        Defendant also argues that the officer was intentionally misleading by leaving out material

facts that would have defeated probable cause, and so the district court erred in not granting a Franks

hearing. In order to be entitled to a Franks hearing to establish material factual omissions from a


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                                            No. 08-2437

warrant, a defendant must show that his case is the “very rare case where the defendant makes a

strong preliminary showing that the affiant with an intention to mislead excluded critical information

from the affidavit, and the omission is critical to the finding of probable cause.” Mays v. City of

Dayton, 134 F.3d 809, 816 (6th Cir. 1998) (emphasis in original). This Circuit has repeatedly held

that the standard for obtaining a Franks hearing is higher for a claim of material omission than for

an allegedly false affirmative statement. United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008)

(citing United States v. Graham, 275 F.3d 490, 506 (6th Cir. 2001), United States v. Sawyers, 127

F. App’x 174, 183 (6th Cir. 2005)). This higher bar is in recognition of the fact that criminal

investigations are usually fast-paced and have many sources of information that may not all be

recognized as equally important to the officers involved, and so this Circuit has held that this higher

bar prevents “endless rounds of Franks hearings” based on “endless conjecture about investigative

leads, fragments of information, or other matter that might, if included, have redounded to

defendant’s benefit.” United States v. Martin, 920 F.2d 393, 398 (6th Cir. 1990). This higher

standard has not been met by Defendant’s allegations.

       Defendant’s allegations of intentional misleading of the magistrate are simply too conclusory

to constitute the substantial showing required by this Circuit. His relevant allegations amount to an

assertion that the search warrant was the result of overzealous law enforcement officers engaged in

interlocking investigations and that there were facts known to the swearing officer that were

intentionally not included. But there is no evidence that the two investigations were working in

tandem, nor is there evidence to support the allegation that the information was intentionally left out.

Defendant also relies heavily on the fact that Willis’ credibility was not specifically alleged in the


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warrant and that it was later determined that Defendant was incorrectly identified by Willis and was

not the Arab male involved in the ecstasy ring. But Defendant provides no evidence that law

enforcement knew Willis to be unreliable or that law enforcement doubted, or even should have

doubted at the time, the veracity of Willis’ identification of Defendant from the photograph.

Defendant also does not provide any evidence that the fact there were two simultaneous

investigations led to an intentional misleading of the magistrate. Therefore, Defendant has not met

his burden of proof by making a substantial showing that the facts omitted from the affidavit were

done so with an intention to mislead.

       Further, even if this Court reviews the warrant with the allegedly material facts that were

omitted, the inclusion of those facts would not tend to defeat probable cause. The affidavit already

notes that the house involved in the drug transaction was an unknown house and that Willis simply

indicated that 19168 Havana Street was near that house. Therefore, the additional descriptions of

the house where the drug transaction occurred would not defeat the theory of probable cause for

searching Defendant’s house, which was that Defendant met with Harrell (the driver of the third car)

shortly after the drug transaction that led to the recovery of 9,500 ecstasy pills, that 19168 Havana

Street is Defendant’s residence, that Willis identified Defendant as the Arab male involved in the

transaction, and that in the experience of the swearing officers, certain types of evidence are likely

to be found in the home of those linked to drug trafficking, especially when the meeting between

Harrell and Defendant took place at Defendant’s home.

       Because the warrant was supported by probable cause and Defendant had not made the proper

showing to warrant a Franks hearing, there is no need to reach the issue of whether the officers are


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entitled to the good faith exception of United States v. Leon, 468 U.S. 897 (1984). Gunter, 551 F.3d

at 482 (citing United States v. Miller, 314 F.3d 265, 271 (6th Cir. 2002) (good faith exception not

applicable when court finds warrant was based on probable cause)).

       The district court did not err in denying Defendant’s motion to suppress because the affidavit

was sufficient to establish probable cause. The district court also did not err in denying a Franks

hearing because Defendant did not make the necessary showing of an intent to mislead to support

a Franks hearing and even with the omitted facts the warrant still supported probable cause.

II.    DEFENDANT’S MOTION TO DISMISS COUNT IV OF THE INDICTMENT BASED
       ON THE ALLEGED UNCONSTITUTIONALITY OF 18 U.S.C. § 922(g)(1).

       A.      Standard of Review

       Defendant moved to dismiss Count IV of the indictment based on the alleged

unconstitutionality of 18 U.S.C. § 922(g)(1). The district court’s denial of a motion to dismiss an

indictment is reviewed de novo by this Court. United States v. Ali, 557 F.3d 715, 720 (6th Cir.

2009). Therefore, the district court’s findings of fact and conclusions of law are fully reviewable.

The district court’s ruling on the constitutionality of a federal statute is also reviewed de novo.

United States v. Rose, 522 F.3d 710, 716 (6th Cir. 2008).

       B.      The District Court Did Not Err in Denying the Motion to Dismiss Count IV

       The Supreme Court’s recent decision in District of Columbia v. Heller interpreted the Second

Amendment to guarantee an individual right to bear arms in some circumstances. 128 S.Ct. at 2797-

98. Defendant argues that this decision supports his challenge to the constitutionality of § 922(g)(1),

which this Court has previously held to be constitutional along with several other related provisions

regulating possession of firearms. See United States v. Napier, 233 F.3d 394, 403 (6th Cir. 2000)

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                                             No. 08-2437

(collecting pre-Heller cases from various circuits upholding the constitutionality of § 922(g)); see

also United States v. Waller, 218 F.3d 856, 857 (8th Cir. 2000) (holding that it is well-settled that

§ 922(g)(1) does not violate the Second Amendment).

        Several circuits, including the Sixth Circuit, have been presented with similar challenges to

the constitutionality of § 922(g)(1) in light of Heller. In each case, our sister Circuits have found that

the pronouncement in Heller that “nothing in [the] opinion should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by felons” is sufficient to dispose of the

claim that § 922(g)(1) is unconstitutional. 128 S.Ct. at 2816-17; see United States v. Stuckey, 317

F. App’x 48, 50 (2d Cir. 2009); United States v. Brunson, 292 F. App’x. 259, 261 (4th Cir. 2008);

United States v. Anderson, 559 F.3d 348, 352 (5th Cir. 2009); United States v. Irish, 285 F. App’x.

326, 327 (8th Cir. 2008); United States v. Smith, 329 F. App’x 109, 110-11 (9th Cir. 2009); United

States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009); United States v. Battle, 2009 WL 3065103,

*1-2 (11th Cir. 2009). Our Circuit’s prior decision on the constitutionality of § 922(g)(1) post-Heller

also quotes the dicta from Heller and then reviews the cases in which this Circuit had previously held

§ 922(g)(1) to be constitutional. United States v. Frazier, 314 F. App’x 801, 807 (6th Cir. 2008).




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                                            No. 08-2437

       Only two Circuits have published opinions on this specific issue since Heller.1 The Tenth

Circuit majority opinion simply relies on the dicta in Heller and cites the only other published

decision, which is from the Fifth Circuit. McCane, 573 F.3d at 1047. However, the concurrence in

the Tenth Circuit case expresses some concern that this dictum conflicts with the underlying theory

of Heller that longstanding firearm restrictions are not in conflict with the Second Amendment since

felon firearm restrictions may not be longstanding and also expresses concern that this dictum

needlessly constrains the development of Second Amendment doctrine, but the concurrence still

recognizes that Heller seems to foreclose the possibility that § 922(g)(1) is unconstitutional. Id. at

1047-50 (Tymkovich, J. concurring). The Fifth Circuit decision simply quotes the dictum from

Heller to dispose of the constitutional challenge to § 922(g)(1). Anderson, 559 F.3d at 352.

       “[This Court has] noted that [we] are obligated to follow Supreme Court dicta, particularly

when there is no substantial reason for disregarding it, such as age or subsequent statements

undermining its rationale.” United States v. Marlow, 278 F.3d 581, 588 n.7 (6th Cir. 2002) (citing

Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (“this court considers itself bound by

Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta

is recent and not enfeebled by later statements”); accord McCoy v. Mass. Inst. of Tech., 950 F.2d 13,



       1
         The Seventh Circuit recently published a decision regarding § 922(g)(9), which restricts
firearm ownership for people who have been convicted of a domestic violence misdemeanor,
indicating that simple reliance on the language in Heller about long-standing gun control statutes
would not be sufficient to justify the continued constitutionality of that statute. U.S. v. Skien, 587
F.3d 803 (7th Cir. 2009) (remanding for the district court to consider whether the statute passes
intermediate scrutiny and for the government to argue that position). However, since Heller is
directly on point in this case, whereas the rationale of § 922(g)(9) is not specifically referenced, it
is more fully dispositive of this issue.

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19 (1st Cir.1991) (“federal appellate courts are bound by the Supreme Court's considered dicta

almost as firmly as by the Court's outright holdings . . . ”)). The dicta in Heller carries significant

weight in our analysis, especially since Defendant appears to be raising a facial challenge to this

statute, which would require the Defendant to argue that the felon-in-possession statute is

unconstitutional as applied to all felons covered by the statute. See United States v. Salerno, 481

U.S. 739, 745 (1987) (in a facial challenge, “the challenger must establish that no set of

circumstances exists under which the Act would be valid.”). Even an as applied challenge would

be difficult for Defendant to mount since he was on electronic tether at the time of the search and

had two prior drug felony convictions, which suggests that Defendant likely is within the category

of felons to whom the rationale in Heller would clearly apply, and therefore for whom Congress can

constitutionally restrict the possession of firearms.

       Since Heller indicates that its holding does not bring into question the constitutionality of

§ 922(g)(1), and this Court has not been presented with any convincing argument that its dicta should

not be very persuasive in this case, the district court did not err in denying Defendant’s motion to

dismiss Count IV.

                                          CONCLUSION

       For the foregoing reasons set forth in this opinion, we AFFIRM the district court’s denial

of the motion to suppress and the motion to dismiss count IV of the indictment.




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