                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2859
                                    ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Anthony Augustine Lucca,                *
                                        *
             Appellant.                 *
                                    __________

                              Submitted: March 11, 2004
                                 Filed: July 30, 2004
                                  ___________

Before MURPHY, SMITH, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Anthony Lucca pled guilty to two counts of possession with intent to distribute
methamphetamine and cocaine in violation of 21 U.S.C. § 841(a)(1). Prior to trial,
Lucca moved to suppress the evidence obtained from the execution of a warrant that
authorized the search of his residence, vehicles, and person. In connection with that
motion, Lucca requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978), in support of his claim that the warrant application included material false
statements. Lucca also moved to dismiss all counts brought under 21 U.S.C. § 841
on the ground that the statute was unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000). The district court,1 adopting the report and recommendation of
a magistrate judge,2 denied the motions, and Lucca entered a conditional plea of
guilty that reserved the right to appeal the denial of his motions. During the pendency
of this appeal, Lucca filed a motion to remand the case for a Franks hearing in light
of "newly discovered evidence" that he submitted on appeal. We deny the motion to
remand and affirm the judgment of the district court.

                                          I.

       Lucca claims that the affidavit in support of the search warrant for his
residence included intentional false statements that were necessary to the issuing
court's finding of probable cause. He argues that the alleged false statements are
revealed by considering the testimony of the affiant, Officer John Decker, concerning
the affidavit submitted in his case and an affidavit proffered in support of another
search warrant for the residence of one Jade Wegner.

       The Wegner warrant application, including an affidavit from Captain Robert
Byman of the Koochiching County Sheriff's Office, was submitted to a Minnesota
state court judge on May 5, 2002. On May 6, police executed the search warrant and
seized cocaine from Wegner's residence. Also on May 6, a Minnesota state court
judge approved a search warrant for the residence, vehicles, and person of Anthony
Lucca. The application for this warrant included an affidavit of Officer Decker of the
International Falls Police Department. The Lucca search warrant also was executed
on May 6, and police discovered cocaine, methamphetamine, marijuana, $16,121 in
U.S. currency, drug paraphernalia, and scales at Lucca's property.


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
      2
       The Honorable Raymond L. Erickson, United States Magistrate Judge for the
District of Minnesota.

                                         -2-
       Decker's affidavit in support of the Lucca warrant relied in part on information
from a "confidential reliable informant" ("CRI"). According to the affidavit, this CRI
previously had provided information to the police that resulted in several successful
searches, convictions, and controlled narcotics purchases. Decker stated in his
affidavit that within the last 72 hours, the CRI reported to him that Lucca was in
possession of cocaine, and that a cocaine transaction had transpired between Lucca
and Wegner. The affidavit also stated that the search of the Wegner residence
resulted in the discovery of cocaine. Decker further explained that an officer
conducting surveillance of Lucca on April 30 had witnessed Wegner visit Lucca's
residence for about 25 minutes, and observed other vehicles making short stops at the
residence during that time. The affidavit also recounted that Lucca had previous
arrests and convictions for controlled substance offenses, and that other sources and
CRIs had reported to Decker and other officers that Lucca was distributing controlled
substances. Finally, Decker stated that according to Captain Byman, a confidential
informant reported that Lucca was in possession of controlled substances in an ice
fishing house during the winter.

       Lucca zeroes in on Decker's testimony concerning what Lucca describes as a
major factual discrepancy between the Wegner and Lucca warrant affidavits. While
the Lucca affidavit featured the CRI's allegation that Wegner and Lucca engaged in
a drug transaction within 72 hours of May 6, the Wegner affidavit submitted on May
5 did not mention this important evidence. At a hearing on Lucca's motion to
suppress, Decker first testified that the CRI information was not included in the
Wegner affidavit because Decker did not receive the information until after Byman's
affidavit had been submitted to the court. When Decker was confronted with the fact
that the Wegner affidavit was not submitted until May 5, Decker explained that he
believed it had been submitted one week earlier. Decker then testified that he had
discussed the new CRI information with Captain Byman, and that Byman had decided
to leave it out of the Wegner affidavit.



                                         -3-
       Lucca argues that Decker's testimony at the hearing is incredible, because if he
really believed that the Wegner affidavit had been submitted in late April, then he
could not have spoken with Byman in early May about whether to include the new
CRI information in the Wegner affidavit. The district court concluded that Lucca's
attack on Decker's credibility was much ado about nothing. The district court (and
the magistrate judge) noted that Decker could have been mistaken about when the
Wegner affidavit was drafted and submitted to the court, because Decker was not
intimately involved in the preparation of that affidavit. Even if Decker believed that
Byman already had submitted the Wegner affidavit to the court in late April, the
district court thought it perfectly reasonable that Decker would share the new CRI
information with Byman in early May. Under this scenario, Byman could decide
whether to supplement his original affidavit or otherwise make use of the new
information concerning the target of his investigation. For these reasons, the court
rejected Lucca's contention that Decker's testimony was internally inconsistent.

       A Franks hearing is required when the defendant makes "a substantial
preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant affidavit,
and [ ] the allegedly false statement is necessary to the finding of probable cause[.]"
Franks, 438 U.S. at 155-56. This showing of deliberate or reckless falsehood is "not
lightly met." United States v. Wajda, 810 F.2d 754, 759 (8th Cir. 1987). In
particular, a defendant must "point out specifically the portion of the warrant affidavit
that is claimed to be false; and [the allegations] should be accompanied by a
statement of supporting reasons. Affidavits or sworn or otherwise reliable statements
of witnesses should be furnished, or their absence satisfactorily explained." Franks,
438 U.S. at 171. We review the district court's denial of a Franks hearing for an
abuse of discretion. United States v. Gabrio, 295 F.3d 880, 882 (8th Cir.), cert
denied, 537 U.S. 962 (2002).




                                          -4-
       We agree with the district court that Lucca did not mount a substantial
preliminary showing sufficient to justify a Franks hearing. Like the district court, we
do not believe that Decker's testimony at the suppression hearing is internally
inconsistent, or that it leads to an inference that Decker falsified the CRI information
included in the Lucca affidavit. That Decker said he believed the Wegner affidavit
was submitted to the court in late April does not render incredible Decker's testimony
that he nonetheless conveyed the new CRI information to Byman in early May, and
discussed with Byman whether the information should be included in the Wegner
affidavit. It was eminently reasonable for the district court to conclude that police
officers confer about new information that develops in an ongoing investigation. As
the magistrate judge noted in his report and recommendation, an ongoing
investigation may require changes to an initial warrant affidavit or the issuance of
more than one search warrant. Decker's confusion about the timing of the Wegner
affidavit may have muddied the waters, but Franks requires stronger proof than what
Lucca has pieced together to create a substantial preliminary showing of intentional
falsehoods.

                                           II.

       Lucca also filed a motion to remand the case for a Franks hearing in light of
"newly discovered evidence." He argues that three pieces of new evidence regarding
Officer Decker's credibility entitle him to a Franks hearing. This new information
includes: (1) findings of the International Falls Police Civil Service Commission
discharging Decker from the police department for taking evidence from the
department for personal use, making false statements to the police chief regarding his
whereabouts during a fire drill, and using a breath test device for personal use; (2) a
civil complaint filed by a private citizen, alleging "[u]pon information and belief" that
Decker provided "unreliable, exaggerated, or fabricated information" to a judge in
order to obtain a warrant to search her property; and (3) news articles regarding



                                          -5-
Decker's misconduct. The government contends that the new evidence would not
have resulted in a Franks hearing even if it had been available to the district court.

       We have never considered the standard for reviewing a motion to remand for
a Franks hearing based on newly discovered evidence. Both the government and
Lucca analogize the situation to a motion for new trial, which requires a movant to
show that the evidence is new, the failure to discover it was not due to lack of
diligence, and "the evidence is such that at a new trial it would likely produce a
different outcome." United States v. Smith, 62 F.3d 1073, 1078 (8th Cir. 1995).
According to the parties, when that standard is applied to the pending motion, we
must decide whether the newly discovered evidence would likely result in a Franks
hearing if considered by the district court.

       We have some doubt whether the parties focus on the correct "outcome" that
must be different before a remand is ordered. A Franks hearing is just a step along
the way to the ultimate goal of a motion to suppress, which is to have evidence
excluded, and the case dismissed. To focus on whether the district court would
permit a Franks hearing, rather than on whether the new evidence is likely to change
the overall outcome of the proceeding (i.e., the defendant's conviction and sentence),
may give insufficient weight to the interest in finality that motivates the rigorous
standard for granting a new trial. E.g., United States v. Stofsky, 527 F.2d 237, 243 (2d
Cir. 1975). Nonetheless, because the government concedes that we should examine
only whether the new evidence warrants a Franks hearing, and because we ultimately
conclude in this case that it does not, we refrain from further analysis of the
appropriate standard for such a remand motion.

      We conclude that the new evidence concerning Officer Decker, when
combined with the evidence presented in the district court, would not establish a
substantial preliminary showing of intentional or reckless falsehoods by Decker in the
Lucca warrant affidavit. While the information that Decker made a false statement

                                          -6-
to his police chief in an unrelated matter has some bearing on his credibility, it is not
sufficient standing alone to justify a Franks hearing on the Lucca warrant. See
United States v. Southard, 700 F.2d 1, 9-10 (1st Cir. 1983). Nor do we view this as
a case in which Decker's credibility in the search warrant affidavit was seriously
challenged, such that the district court made a borderline decision to deny a Franks
hearing. The district court's decision, rather, was based on a conceptual flaw in
Lucca's submission that Decker's testimony at the suppression hearing was
necessarily inconsistent.

        Viewed in that light, the new information about Decker's credibility and
character is not sufficient to warrant a remand. As with an informant whose
information is recounted in an affidavit, we believe that where the affiant's statement
are "at least partially corroborated, attacks upon credibility and reliability are not
crucial to the finding of probable cause." United States v. Humphreys, 982 F.2d 254,
258-59 (8th Cir. 1992) (stating principle in the context of informant reliability). Here,
Decker's statement that a CRI informed him of a drug deal between Lucca and
Wegner was at least partially corroborated by surveillance that observed automobile
traffic at Lucca's residence during a visit by Wegner in the previous week, and by the
seizure of cocaine from Wegner's residence. Lucca's involvement with controlled
substances also was bolstered by Captain Byman's information regarding Lucca's use
of drugs at an ice fishing house, and by general intelligence received from other
informants. After considering the totality of the evidence relating to the Lucca search
warrant, we are not persuaded that the new evidence concerning Decker's character
and credibility in unrelated matters would likely result in the ordering of a Franks
hearing upon remand. Accordingly, we conclude that the motion to remand should
be denied.




                                          -7-
                                            III.

       Lucca also contends that there was not probable cause to support the issuance
of the search warrant. As a reviewing court, we pay "great deference" to the probable
cause determinations of the issuing judge or magistrate, and our inquiry is limited to
discerning whether the issuing judge had a substantial basis for concluding that
probable cause existed. Illinois v. Gates, 462 U.S. 213, 236, 238 (1983). Even if the
affidavit were deemed deficient in hindsight, moreover, evidence would not be
suppressed if the police acted in good faith reliance on a search warrant issued by a
neutral and detached magistrate. United States v. Leon, 468 U.S. 897, 922-23 (1984).

       Lucca argues that because the affidavit did not provide the factual basis for the
CRI's knowledge regarding Lucca's alleged drug transaction with Wegner, the
warrant was not supported by the necessary probable cause. We disagree. When a
confidential informant provides information in support of a search warrant, the
issuing magistrate considers the informant's reliability and the basis of his knowledge.
Gates, 462 U.S. at 233. The totality of the circumstances analysis, however, does not
mandate that both factors be present before a warrant may issue. Instead, a strong
showing of one may compensate for a deficiency in the other. Id. For example, if an
"informant is known for the unusual reliability of his predictions of certain types of
criminal activities in a locality, his failure, in a particular case, to thoroughly set forth
the basis of his knowledge surely should not serve as an absolute bar to a finding of
probable cause . . . ." Id.; see also United States v. Anderson, 933 F.2d 612, 615 (8th
Cir. 1991). The information from a CRI is sufficiently reliable if it is corroborated
by other evidence, or if the informant has a history of providing reliable information.
United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993).

      In this case, the CRI's reliability was supported by his previous work with the
International Falls Police Department and the department's corroboration of his
information. The CRI had a track record of supplying reliable information, which

                                            -8-
resulted in three successful felony controlled substance convictions, five controlled
substances purchases, and four pending controlled substance convictions. See
Gabrio, 295 F.3d at 883 (the informant's provision of reliable information on at least
two occasions and return of stolen property were sufficient to establish reliability);
United States v. Wright, 145 F.3d 972, 975 (8th Cir. 1998) (informant's track record
of reliability was established by successful controlled purchases of crack cocaine).
In addition, as noted above, Decker's affidavit included corroborating information,
such as the observations of Wegner's visit to the Lucca residence, and the seizure of
cocaine from Wegner's residence. See United States v. Olson, 21 F.3d 847, 850 (8th
Cir. 1994) (CRI information was reliable where independent investigation of the task
force agents corroborated CRI information). We conclude that under the totality of
the circumstances, the issuing judge had a substantial basis for concluding that
probable cause existed.

                                         IV.

       Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Lucca also contends
that his convictions and sentence are unconstitutional, because they were based on
drug quantities that the government was not required to prove as an element of the
offense. Our circuit previously rejected this argument, United States v. Carter, 294
F.3d 978, 980-81 (8th Cir. 2002), but we must consider whether the Supreme Court's
decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), has breathed new life into
the claim. Blakely declared, in a case involving a sentencing proceeding in
Washington state, that "[w]hen a judge inflicts punishment that the jury's verdict
alone does not allow, the jury has not found all the facts which the law makes
essential to the punishment, and the judge exceeds his proper authority." Id. at 2537
(internal quotation and citation omitted).

       Whatever the ramifications of Blakely for the constitutionality of the United
States Sentencing Guidelines, we perceive no constitutional flaw in Lucca's sentence.

                                         -9-
Lucca was sentenced to a term of 120 months imprisonment, which is the mandatory
minimum term of imprisonment established by statute for a defendant who is
convicted of trafficking in excess of 500 grams of a mixture or substance containing
methamphetamine. 21 U.S.C. § 841(b)(1)(A). Blakely explained that a sentence may
be imposed by a judge if it is based solely on the "facts reflected in the jury verdict
or admitted by the defendant." 124 S. Ct. at 2537 (emphasis in original). The
indictment in this case alleged that Lucca possessed with intent to distribute in excess
of 500 grams of methamphetamine, and he admitted this fact as part of his guilty plea.
No additional finding was required by the district court to justify the sentence of
imprisonment that was imposed pursuant to § 841(b)(1)(A). Accordingly, Lucca's
sentence was consistent with the Sixth Amendment as interpreted by Blakely and
Apprendi.

                                 *       *       *

       For the foregoing reasons, the motion to remand is denied, and the judgment
of the district court is affirmed.
                          _____________________________




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