                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 16-3393
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                              GEORGE J. LAWRENCE, V,

                                                        Appellant
                                   ________________

                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                     (D.C. Criminal Action No. 3-13-cr-00041-001)
                       District Judge: Honorable Kim R. Gibson
                                  ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                   on May 24, 2017

               Before: HARDIMAN, ROTH and FISHER, Circuit Judges

                            (Opinion filed: September 6, 2017)


                                   ________________

                                       OPINION*
                                   ________________

ROTH, Circuit Judge



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
      In early 2013, a few months after serving a five-year sentence for selling crack

cocaine, George J. Lawrence began selling again. Police officers conducted a series of

controlled buys using confidential informants (CIs) and an undercover officer (UC).

Based on information obtained, the officers asked for and received a search warrant for

Lawrence’s house, where they found additional evidence of drug activities. The officers

subsequently arrested Lawrence.

      In the ensuing proceedings, Lawrence moved to dismiss the indictment on the

ground that law enforcement officers lied in testimony before the grand jury. He also

moved for a hearing pursuant to Franks v. Delaware1 on the basis that the affidavit of

probable cause contained false statements without which the warrant would not have

been supported by probable cause. The District Court denied both motions, and

Lawrence appeals their denial.2 We will affirm.3

                          I. Motion to Dismiss the Indictment

      Dismissal of an indictment can be proper when there has been prosecutorial

misconduct before the grand jury.4 Lawrence alleges that there was such prosecutorial

misconduct here because one of the law enforcement officers who investigated Lawrence

misled the grand jury about law enforcement’s observations of the controlled buy on


1
  438 U.S. 154 (1978).
2
  The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291.
3
  Lawrence also moved to suppress the evidence obtained from the search because the
search was conducted pursuant to an improperly issued search warrant. However,
because we hold that the warrant was properly issued, we need not separately address
suppression.
4
  See United States v. Soberon, 929 F.2d 935, 939 (3d Cir. 1991).
                                            2
April 16, 2013, which took place at the home of Paulette M. Alt. In describing the

incident, the agent said that Lawrence and Alt came into the kitchen where the UC and CI

were waiting. The agent also described Lawrence giving Alt crack cocaine, which Alt

then gave to the UC. However, the agent failed to mention that Lawrence and Alt left the

kitchen before Lawrence handed Alt the crack cocaine; Alt then came back to the kitchen

to give the crack cocaine to the UC.5 This omission may have led the grand jury to

believe that the UC or the CI personally witnessed Lawrence give crack cocaine to Alt.

       Even, however, if we assume that this omission was misleading, it is not sufficient

to dismiss the indictment. A court may not dismiss an indictment unless the alleged

prosecutorial misconduct was prejudicial, that is, unless “the violation substantially

influenced the grand jury’s decision to indict, or there is grave doubt that the decision to

indict was free from the substantial influence of such violations.”6 Whether there was

misconduct and whether the misconduct was prejudicial are factual findings,7 so we

review for clear error.8 The District Court found that no prosecutorial conduct here was



5
  The UC, Norman Young, wrote in his surveillance report:
         ALT makes contact with “G” [i.e., Lawrence]. “G” then wants to meet the
         money man. UC Young is asked by “G” if he is a cop. UC indicates
         NO. . . . ALT then walks back with “G” to front of house. Approximately
         1 minute later target “ALT” gives Young 12 bags of crack cocaine.
App. 202; see also App. 210-11.
6
  Soberon, 929 F.2d at 939-40 (quoting Bank of Nova Scotia v. United States, 487 U.S.
250, 256 (1988)) (internal quotation marks and ellipsis omitted).
7
  Id. at 939.
8
  “We ‘apply a mixed standard of review to a district court’s decision on a motion to
dismiss an indictment, exercising plenary review over legal conclusions and clear error
review over factual findings.’” United States v. Small, 793 F.3d 350, 352 (3d Cir. 2015)
(quoting United States v. Stock, 728 F.3d 287, 291 (3d Cir. 2013)).
                                              3
prejudicial,9 and we do not think there has been clear error. This detail was not

significant; although the undercover officer and confidential informant did not see

Lawrence hand Alt the crack cocaine, they had good reasons to believe that Lawrence

had done so. This was the third controlled buy from Lawrence, and Lawrence had used

an intermediary in each previous controlled buy. Alt had taken the money for the

purchase but had explained that she was waiting for “her man” before she could complete

the transaction. When Lawrence showed up, he met briefly with Alt before Alt handed

the crack cocaine to the undercover officer. Thus, at worst, the agent described a

reasonable inference based on what was actually observed. Moreover, there was

considerable additional evidence supporting a decision to indict. In these circumstances,

we do not think that the District Court clearly erred by not harboring grave doubts

regarding whether the grand jury would have indicted if the agent had been more precise

in his description of events.

       Lawrence also argues that the agent’s testimony before the grand jury regarding

Lawrence’s prior criminal history, while accurate, was irrelevant and prejudicial.

However, the grand jury is not constrained by the ordinary rules of evidence.10 Hence,

while irrelevant and prejudicial testimony about a defendant’s criminal history might be

excluded at trial,11 it need not be excluded in a grand jury proceeding. Thus, we will not

dismiss the indictment on this basis.



9
  App. 50-51.
10
   See Fed. R. Evid. 1101(d)(2).
11
   See Fed. R. Evid. 404(b).
                                             4
                            II. Motion for a Franks Hearing12

       Lawrence contends that the affidavit of probable cause for the search warrant for

Lawrence’s house also contains a misstatement. In describing the third controlled buy,

the affidavit said, “The UC officer witnessed LAWRENCE meet and supply the CRACK

for the deal to ALT.” Lawrence thus moved for a Franks hearing where he could

introduce evidence to demonstrate that affiant intentionally or recklessly made a false

statement in the affidavit. The District Court denied his motion, and we agree with its

decision. Among other things, any such misstatements must be material in order for a

Franks hearing to be required. That is, “if, when material that is the subject of the

alleged falsity or reckless disregard is set to one side, there remains sufficient content in

the warrant affidavit to support a finding of probable cause, no hearing is required.”13

Had the sentence that Lawrence challenges been corrected or even deleted from the

affidavit, the affidavit would have contained copious details supporting probable cause,

including the other information about the three controlled buys. Such a change would not

have affected the probable cause determination. Hence, the District Court did not err by

denying the Franks hearing.

       Lawrence argues that the affidavit was not supported by probable cause in any

event because there was no nexus between Lawrence’s drug dealing and his home. We

disagree. The affidavit contained information about Lawrence’s drug-trafficking

12
   We have not yet fully articulated a standard of review for denial of a motion for a
Franks hearing. See United States v. Pavulak, 700 F.3d 651, 665 (3d Cir. 2012). We
need not do so here because Lawrence’s claim would fail under any standard, including
de novo. See id. at 666.
13
   Franks v. Delaware, 438 U.S. 154, 171-72 (1978).
                                              5
activities, including the three controlled buys. It described interactions between

Lawrence and his drug associates at or near the house. It also noted that the business

address of Lawrence’s ostensibly legitimate construction business was Lawrence’s home

address, which increases the likelihood that laundered drug money or other evidence of

unlawful activities might be found at the house. The affiant, a detective with

considerable experience in drug crimes, said that he believed that evidence was likely to

be found at the house, a point which the magistrate could consider.14 Based on these

details and the others contained in the affidavit, the magistrate could have concluded

there was a fair probability that evidence of Lawrence’s drug crimes would be found at

the house.15

                                     III. Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.




14
   See United States v. Stearn, 597 F.3d 540, 559-60 (holding that, in determining
whether there is a nexus, one factor is “the conclusions of experienced officers ‘regarding
where evidence of a crime is likely to be found’”) (quoting United States v. Hodge, 246
F.3d 301, 307 (3d Cir. 2001)).
15
   A “fair probability” is sufficient for a magistrate to issue a warrant. See Illinois v.
Gates, 462 U.S. 213, 238 (1983).
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