                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 21 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30082

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00363-JLR-1

  v.
                                                 MEMORANDUM*
MICHAEL PAUL GRADNEY,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Western District of Washington
                    James L. Robart, District Judge, Presiding

                             Submitted May 13, 2014**
                                Seattle, Washington

Before: O’SCANNLAIN, BERZON, and TALLMAN, Circuit Judges.

       Michael Paul Gradney appeals from his conviction following a jury trial of

possession and distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1),




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(b)(1)(C), as well as being a felon in possession of a firearm and ammunition in

violation of 18 U.S.C. §§ 922(g)(1), 924(e). We affirm.

      (1)    The warrant was not impermissibly based on stale information. The

affidavit filed with the warrant application contained information suggesting that

Gradney had engaged in crack cocaine distribution as early as November 2010, and

as recently as two nights before the warrant issued. There was thus evidence that

Gradney “was more than a one-time drug seller.” United States v. Pitts, 6 F.3d

1366, 1370 (9th Cir. 1993). Gradney’s “continuing pattern” of drug dealing,

including two nights before the warrant issued, provided evidence sufficiently

“closely related to the time of the issue of the warrant as to justify a finding of

probable cause at that time.” United States v. Lacy, 119 F.3d 742, 745–46 (9th Cir.

1997) (citations and quotation marks omitted).

      (2)    Nor did the district court err in concluding that there was sufficient

evidence to establish “a reasonable nexus between the activities supporting

probable cause and the locations to be searched.” United States v. Ocampo, 937

F.2d 485, 490 (9th Cir. 1991). The affidavit provided links between Gradney’s

alleged drug dealing and his girlfriend’s residence (“the Auburn house”) sufficient

to support a reasonable belief that evidence of drug dealing would be found in the

house.


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      First, in 2010, Gradney was arrested after being pulled over in a car

registered to the Auburn house. Police discovered in the car several grams of crack

cocaine packaged for sale. Second, Gradney arrived for each of the September

2011 controlled buys in a gold Cadillac. That Cadillac was seen parked outside the

Auburn house early in the morning and late at night almost every day for a month

before Gradney’s arrest. Third, two nights before the warrant issued, Gradney was

seen smoking a cigarette outside the Auburn house before getting into the Cadillac

to head off to five hours of suspected drug dealing.

      We allow magistrates to “draw reasonable inferences about where evidence

is likely to be kept, based on the nature of the evidence and the type of offense.”

United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986). Here, the

affidavit supported a search of the Auburn house for evidence of drug dealing.

      United States v. Grandberry, 730 F.3d 968 (9th Cir. 2013), is not to the

contrary. That case concerned whether Grandberry, a parolee, lived at the

residence searched, not whether he used it for drug dealing, id. at 970, and there

was evidence that he did not live there, id. at 978–82.

      (3)    The district court did not abuse its discretion in refusing to give

Gradney’s requested missing witness instruction. The identities of the confidential

informants (“CIs”) were disclosed to the defense prior to trial, and the government


                                          3
told the defense that it was unable to locate them. Although the government had a

pre-existing relationship with the CIs, the defense could have searched for them

after being informed of their identities and the fact that they were missing. The CIs

were not, therefore, “peculiarly within the power of the” government, a necessary

prerequisite to obtain a missing witness instruction. United States v. Leal-Del

Carmen, 697 F.3d 964, 974 (9th Cir. 2012); see also United States v. Noah, 475

F.2d 688, 691 (9th Cir. 1973). Nor was there evidence to suggest that the CIs’

testimony would have been favorable to Gradney, the other requirement for a

missing witness instruction. See Leal-Del Carmen, 697 F.3d at 974–75.

      AFFIRMED.




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