                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2295
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                 Ramelus D. Bradley

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
               for the Western District of Missouri - Jefferson City
                                 ____________

                           Submitted: February 14, 2019
                              Filed: May 13, 2019
                                 ____________

Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
                              ____________

BENTON, Circuit Judge.

       A jury convicted Ramelus Dejuan Bradley of possession with intent to
distribute cocaine and cocaine base, in violation of 28 U.S.C. §§ 841(a)(1),
841(b)(1)(C), 841(b)(1)(B), and 851; and being a felon in possession of a firearm, in
violation of 18 §§ U.S.C. 922(g)(1) and 924(a)(2). He appeals, arguing the district
court1 erred by denying his motions to suppress; for a Franks hearing, disclosure, and
production; and for acquittal. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
                                          I.

      Detective Brandon Weber applied for a warrant to put a GPS tracker on
Bradley’s truck. The supporting affidavit detailed a drug investigation, which
included a controlled drug buy:

      Within the past four days, at my direction and while under my direct
      surveillance, [Reliable Confidential Informant] #1 was provided money
      to purchase cocaine from Bradley in Boone County, Missouri. I
      watched RCI #1 and Bradley meet at an undisclosed [location] in Boone
      County. Bradley arrived at the meeting location driving a black, Ram,
      4-door pickup bearing Missouri Registration 4MV269. After the
      transaction RCI #1 gave me cocaine they stated had been sold to them
      by Bradley. RCI #1 positively identified Bradley from pictures that I
      provided. The cocaine field-tested positive.

Three other tipsters—two reliable cooperating citizens and a Crimestoppers
caller—connected Bradley to drug dealing, two of whom told police he kept drugs in
his truck. Weber swore that, within the past 24 hours, he saw another “short-term
transaction” involving Bradley that he believed was drug-related based on his training
and experience. The affidavit noted Bradley had prior convictions for drug
trafficking, distribution, and felony possession. A state judge issued the GPS warrant.




      1
       The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, adopting the reports and recommendations of the
Honorable Matt J. Whitworth, Chief United States Magistrate Judge for the Western
District of Missouri, and the Honorable Willie J. Epps, Jr., United States Magistrate
Judge for the Western District of Missouri.

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       Based on information from the GPS tracker and physical surveillance, police
obtained search warrants for Bradley’s truck and a residence in Boone County. When
police entered the residence, Bradley was in the living room. Officers recovered four
firearms. One was atop a table next to Bradley, one under the table, one atop a
television stand in the living room, and one in an upstairs bedroom. They also
recovered over $12,000 cash from a pair of men’s shorts in the living room. In a
Mirandized interview, Bradley accurately described the firearms’ locations and said
they belonged to Tiffany Smith, his girlfriend and the tenant there. The truck was
parked in front of the residence. In its console, police recovered around 151 grams
of cocaine, 28 grams of cocaine base, and a digital scale. He was indicted for
possession with intent to distribute cocaine, 28 grams or more of cocaine base, and
being a felon in possession of a firearm.

       Bradley moved to suppress “all physical evidence allegedly seized” and “any
statements attributed to him.” He challenged the GPS warrant’s probable cause.
After a suppression hearing, a magistrate judge recommended denying the motion,
reasoning that the controlled buy provided probable cause, the other information in
the affidavit supported it, and, even if probable cause were lacking, the good-faith
exception applied. United States v. Bradley, 2017 WL 2579169 (W.D. Mo. May 30,
2017). Adopting the report and recommendation, the district court denied the motion
to suppress. United States v. Bradley, 2017 WL 2579049 (W.D. Mo. June 14, 2017).

       Bradley then moved for a Franks hearing on the warrants and requested
disclosure of the confidential informant’s and tipsters’ identities and any benefits
given to them, and production of evidence about the controlled buy. A magistrate
judge recommended denying the motion, reasoning that Bradley failed to make “a
substantial preliminary showing” that Weber made any false or reckless statements,
as required under Franks v. Delaware, 438 U.S. 154, 155 (1978), and failed to show
that the confidential informant’s or tipsters’ testimony would be material to his case,
as required under United States v. Harrington, 951 F.2d 876, 877 (8th Cir. 1991).

                                         -3-
United States v. Bradley, 2017 WL 4533452 (W.D. Mo. Sept. 22, 2017). Adopting
the report and recommendation, the district court denied a Franks hearing, disclosure,
and production. United States v. Bradley, 2017 WL 4533447 (W.D. Mo. Oct. 10,
2017).

       At trial, the Government sought to introduce audio recordings of calls Bradley
made in county jail after his arrest. Bradley objected to statements like “he admits
that he would be good for a dope case, if anything.” The district court overruled his
objection. The court later denied a motion for acquittal based on the sufficiency of
the evidence. Deliberating for about a half hour, the jury convicted him on all three
counts. Bradley appeals, arguing the district court erred by denying his motions for
suppression; a Franks hearing, disclosure, and production; acquittal; and, by
admitting jail-call statements.

                                         II.

      On appeal from the denial of a motion to suppress, “this court reviews legal
conclusions de novo and factual findings for clear error.” United States v. Morris,
915 F.3d 552, 555 (8th Cir. 2019).

       Bradley argues the GPS warrant lacked probable cause. Placing a GPS device
on a vehicle is a Fourth Amendment search “requiring probable cause and a warrant.”
United States v. Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016), citing United States
v. Jones, 565 U.S. 400, 404 (2012). “Probable cause exists when, viewing the totality
of the circumstances, ‘there is a fair probability that contraband or evidence of a
crime will be found in a particular place.’” United States v. Reed, 921 F.3d 751, ___
(8th Cir. 2019), quoting Illinois v. Gates, 462 U.S. 213, 230, 238 (1983). This court
pays “great deference to the probable cause determinations of the issuing judge or
magistrate,” deciding “whether the issuing judge had a substantial basis for


                                         -4-
concluding that probable cause existed.” Faulkner, 826 F.3d at 1144. The GPS
warrant application had more than sufficient information to establish probable cause.

       Weber detailed a recent, supervised, controlled buy between Bradley and a
confidential informant. The affidavit noted that, “on numerous occasions,” the
informant “provided specific information as to the location, vehicles, and persons
involved in illegal drug transactions,” the information has never “proven unreliable,”
and past information resulted in drug-charge arrests in Boone County. An
“informant’s track record of providing trustworthy information” establishes
reliability. Id. Bradley’s speculation that the informant “could have been hiding the
controlled substance” before meeting him is not supported by any evidence. The
supervised, controlled buy is a substantial basis for the issuing judge to find probable
cause. See United States v. Hart, 544 F.3d 911, 914 (8th Cir. 2008) (holding reliable
informant’s tip and controlled buy established probable cause).

       The other information in the affidavit bolsters this conclusion. Multiple
sources connected Bradley and his truck to drug dealing. Weber established the tips’
reliability through: the controlled buy, see United States v. Brown, 499 F.3d 817,
821 (8th Cir. 2007); Bradley’s drug-related criminal history, see United States v.
Gabrio, 295 F.3d 880, 883 (8th Cir. 2002); the cooperating citizens’ history of
providing reliable drug-related information, see Hart, 544 F.3d at 914; and
verification of details about Bradley’s truck, see Faulkner, 826 F.3d at 1145.
Contrary to Bradley’s suggestion, the omission of any statement about sources’
criminal histories is not fatal to the warrant. See United States v. Williams, 477 F.3d
554, 559–60 (8th Cir. 2007) (omitting informant’s criminal history does not defeat
probable cause where the “informant’s information is at least partly corroborated” or
“the affiant establishes the information’s reliability through some other means”). He
argues that some tips were stale and vague, but they were recent and specific enough
based on the totality of the circumstances. See United States v. Salamasina, 615 F.3d


                                          -5-
925, 931 (8th Cir. 2010). Probable cause supported issuance of the warrant. See
Brown, 499 F.3d at 821.

     Since there is no basis to suppress, this court need not reach Bradley’s
arguments about the good-faith exception.

                                          III.

       According to Bradley, the district court should have granted a Franks hearing
and compelled disclosure of the confidential informant’s and tipsters’ identities and
any benefits they received, and production of evidence about the controlled buy. This
court reviews for abuse of discretion a refusal to grant a Franks hearing or compel
disclosure of a confidential informant’s identity. United States v. Hollis, 245 F.3d
671, 673 (8th Cir. 2001).

       To obtain a Franks hearing, a defendant must make “a substantial preliminary
showing” that an affidavit contains an intentional or reckless false statement or
omission necessary to the probable cause finding. United States v. Charles, 895 F.3d
560, 564 (8th Cir. 2018). This requirement “is not lightly met.” United States v.
Brackett, 846 F.3d 987, 993 (8th Cir. 2017), citing Franks, 438 U.S. at 171–72.
Bradley denies selling a controlled substance to a confidential informant. He offers
no proof for this conclusory denial. The district court thus did not abuse its discretion
in denying a Franks hearing. See United States v. Williams, 669 F.3d 903, 905 (8th
Cir. 2012) (“There is . . . a presumption of validity with respect to the affidavit
supporting the search warrant. To mandate an evidentiary hearing, the challenger’s
attack must be more than conclusory . . . . There must be allegations of deliberate
falsehood or of reckless disregard for the truth, and those allegations must be
accompanied by an offer of proof.”), quoting Franks, 438 U.S. at 171.




                                          -6-
       A defendant seeking identity disclosure “must establish beyond mere
speculation that the informant’s testimony will be material to the determination of the
case.” Harrington, 951 F.2d at 877. Bradley argues that disclosure should be
compelled where an informant provides information supporting a warrant, which
leads to criminal charges. However, he fails to explain how disclosure here would
be material to his defense or a fair trial. See id., citing Roviaro v. United States, 353
U.S. 53, 60–62 (1957). “[T]he identity of a ‘tipster’ whose observations formed the
basis for a search warrant but who is not a necessary witness to the facts is not subject
to compulsion.” Hollis, 245 F.3d at 674. Here, the confidential informant and
tipsters provided information that police used to obtain warrants, but they did not
witness, participate in, or provide evidence of Bradley’s charged crimes. Disclosure
was not required. See, e.g., Faulkner, 826 F.3d at 1147. The confidential
informant’s participation in an uncharged controlled buy does not change this
conclusion. See Harrington, 951 F.2d at 878 (identity of confidential informant not
subject to disclosure where informant made controlled buys, but “neither witnessed
nor participated in the search” leading to possession charges and “could not offer any
evidence bearing on the possession charges”). The district court did not abuse its
discretion in refusing to compel identity disclosure.

                                          IV.

       Bradley argues the district court erred in denying his motion for acquittal
because the evidence was insufficient. “This court reviews de novo the denial of a
motion for judgment of acquittal, viewing the evidence most favorably to the guilty
verdict, resolving all evidentiary conflicts in favor of the government, and accepting
all reasonable inferences from the evidence.” United States v. Morris, 817 F.3d
1116, 1119 (8th Cir. 2016).

      The sole issue is whether the Government proved Bradley had knowing
possession of the recovered firearms and drugs. “Proof of constructive possession is

                                          -7-
sufficient to prove the element of knowing possession . . . .” United States v. Ellis,
817 F.3d 570, 576 (8th Cir. 2016). “An individual has constructive possession of
contraband if he has ownership, dominion or control over the contraband itself, or
dominion over the premises in which the contraband is concealed.” United States v.
Jackson, 610 F.3d 1038, 1043 (8th Cir. 2010). Bradley argues that he was “simply
present at the scene where the contraband was found,” which is insufficient for a
possession conviction. See id.

       The evidence is more than sufficient to sustain his felon-in-possession
conviction. Bradley was the only adult in the residence when the firearms were
recovered. Three were in his immediate vicinity. He admitted knowing the other was
under a pillow in an upstairs bedroom. Tiffany Smith testified that although three of
the recovered guns were hers, they were in a closed box in a spare bedroom when she
left the morning the warrants were executed. The evidence supports a reasonable
inference that Bradley removed the firearms from the box and put them where police
found them—enough for constructive possession. See United States v. Grimes, 825
F.3d 899, 902 (8th Cir. 2016) (“Constructive possession requires knowledge of an
object, the ability to control it, and the intent to do so.”); United States v. Wells, 469
F.3d 716, 720 (8th Cir. 2006) (defendant had constructive possession of firearm when
he knew it was in the house, was willing to retrieve it, and another person retrieved
it on his instruction).

       On his possession-with-intent-to-distribute convictions, Bradley argues that
multiple people had access to the truck, and that the Government did not present
direct evidence of his presence in the truck before the search warrant was executed.
“Possession may be joint; it need not be exclusive.” United States v. Smart, 501 F.3d
862, 865 (8th Cir. 2007). The Government presented sufficient evidence of Bradley’s
dominion and control of the truck. Tiffany Smith testified he drove the truck to her
home the morning the warrants were executed. She also testified that the truck
belonged to Bradley and another woman, and the Government presented evidence

                                           -8-
that the truck was re-titled to Bradley alone days before the warrants were executed.
The jury was free to reject his theory that one of the other persons with access to the
truck exclusively possessed the drugs. See United States v. White, 816 F.3d 976, 986
(8th Cir. 2016). The evidence is sufficient to sustain the convictions. See Ellis, 817
F.3d at 576–77 (upholding possession conviction where reasonable jury could
conclude defendant had “dominion and control over his vehicle and thus knowingly
possessed the firearm recovered therefrom”).

                                          V.

       Bradley contends the district court should have excluded two statements he
made in a recorded, post-arrest jail call: “only thing that’s probably going to stick is
if they claim that somebody sold to me,” and “the only thing that they really got on
me . . . is . . . if somebody claims that they wore a wire . . . to do something.” He
claims the statements are improper prior-bad-acts evidence, see Fed. R. Evid. 404(b),
and substantially more prejudicial than probative, see Fed. R. Evid. 403. This court
reviews the admission of evidence for abuse of discretion, and “evidentiary rulings
are reversed only for a clear and prejudicial abuse of discretion.” Walker v. Kane,
885 F.3d 535, 538 (8th Cir. 2018).

         Bradley’s post-arrest statements express concern about the charges against him,
which is direct evidence of consciousness of guilt. The evidence is thus intrinsic to
his charged crimes, so Rule 404(b) does not apply. See United States v. Skarda, 845
F.3d 370, 377 (8th Cir. 2016) (holding that threat “show[ing] consciousness of guilt
. . . is considered direct evidence of the crime charged and is not subject to a Rule
404(b) analysis” (internal citations omitted)); United States v. Frost, 234 F.3d 1023,
1025 (8th Cir. 2000) (“Rule 404 is . . . inapplicable” to deposition testimony showing
“consciousness of guilt,” as the evidence “does not relate to ‘other acts,’ but rather
constitutes evidence intrinsic to the overall scheme.”). As for Rule 403, the evidence
may be prejudicial, but not unfairly so. See Skarda, 845 F.3d at 378 (“Evidence is

                                          -9-
not unfairly prejudicial merely because it tends to prove a defendant’s guilt.”). The
district court properly admitted the statements.

                                    *******

      The judgment is affirmed.
                     ______________________________




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