                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT                                  September 6, 2007

                                                                                 Charles R. Fulbruge III
                                       No. 06-41271                                      Clerk
                                     Summary Calendar


                              UNITED STATES OF AMERICA,

                                                                     Plaintiff-Appellee,

                                            versus

                               JEROME DEION CUTWRIGHT,


                                                                    Defendant-Appellant.

________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                       Case No. 9:05-CR-19-1
_________________________________________________________________


Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

PER CURIAM:*

               Jerome Cutwright appeals (1) the district court’s denial

of a motion to suppress evidence discovered during a search of his

residence and used subsequently to convict him at trial on two

counts of possession with intent to distribute cocaine and cocaine

base, see 21 U.S.C. § 841(a)(1); and (2) the district court’s

denial of his request that the government produce a confidential



       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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informant.     Finding no error of fact or law, we AFFIRM.

            On March 21, 2005, Deputy Bob Lowe of the San Augustine

County    Sheriff’s        Department         obtained         a        warrant    to   search

Cutwright’s     residence,        located         at   Route       5,    Box    6420,   in   San

Augustine,      Texas.          The     warrant        was     based        on    information

communicated to Deputy Lowe by a confidential informant who had

previously provided one of Lowe’s colleagues with reliable tips

about narcotics trafficking and other criminal offenses on at least

five occasions.        The confidential informant told Lowe that he had

seen a large amount of bagged cocaine at Cutwright’s residence and

that Cutwright had made a sale of cocaine in his presence.**

            Lowe     and    six     other     state      officers         traveled      to   the

residence and knocked and announced their presence but received no

response.     After gaining entry, they discovered Cutwright in the

rear bedroom and restrained him without incident.                              A search of the

house revealed: $3,010 in cash from a box in the bedroom; three



     **
      The relevant portion of the warrant affidavit reads:
     [Confidential Informant] advised affiant that, within the past twenty four [sic] (24)
     hours of the presentment of this affidavit to this Court, [Confidential Informant]
     had personally been to the residence of JEROME CUTWRIGHT, described herein
     as the suspected place and premises located at Rt. 5 Box 6420 in San Augustine
     County, Texas, and had personally observed JEROME CUTWRIGHT in
     possession of a quantity of cocaine that was possessed for the purpose of sale and
     distribution. [Confidential Informant] advised that [Confidential Informant]
     observed JEROME CUTWRIGHT in possession of two (2) plastic bags wrapped
     with grey tape, weighing approximately two (2) kilos apiece, which contained
     cocaine. [Confidential Informant] further stated that while [Confidential Informant]
     was at said residence, [Confidential Informant] observed JEROME CUTWRIGHT
     conduct a sale and delivery of cocaine.

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plastic baggies containing 645 grams of powder cocaine, paper

toweling impregnated with white residue, two large wafer-shaped

rounds of cocaine base, and $4,725 in cash from the kitchen; 2.31

pounds of marijuana apportioned between three plastic bags hidden

in the clothes dryer; digital scales and an additional $1,245 in

cash.

           Before trial, Cutwright moved to suppress evidence seized

during execution of the search warrant.       The district court denied

the motion.   Cutwright also moved that the government be required

to disclose the identity of the confidential informant.          The court

denied the motion as moot because the government had already

provided Cutwright with the informant’s name and address.                The

process   server   hired   by   Cutwright   was   unable   to   locate   the

informant.

           Cutwright was tried before a jury on April 3, 2006, and

found guilty on both counts of possession with intent to distribute

cocaine and cocaine base.        The district court sentenced him to

eighty months’ imprisonment followed by four years’ supervised

release on both counts, to be served concurrently.         He appeals the

district court’s denial of both motions.

1.   Denial of the Suppression Motion

           We review factual findings supporting the denial of a

suppression motion for clear error and legal conclusions de novo.

United States v. Williams, 365 F.3d 399, 403 (5th Cir. 2004)



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(citing Ornelas v. United States, 517 U.S. 690, 694-97, 116 S. Ct.

1657, 1660-63 (1996)).       We view the evidence in the light most

favorable to the prevailing party, here, the government.             United

States v. Estrada, 459 F.3d 627, 630 (5th Cir. 2006).

              When a search warrant is at issue, we use a two-step test

in reviewing the district court’s denial of a suppression motion.

First,   we    determine   whether   the   good-faith    exception   to   the

exclusionary rule applies.       United States v. Mays, 466 F.3d 335,

342 (5th Cir. 2006) (citing United States v. Leon, 468 U.S. 897,

922-23, 104 S. Ct. 3405, 3420 (1984)).         If the exception applies,

we inquire no further whether the warrant was supported by probable

cause. Id.      Only if Leon’s exception is inapplicable do we proceed

to the second step and ask whether the court had a substantial

basis for the probable-cause determination.               United States v.

Hinojosa, 349 F.3d 200, 203 (5th Cir. 2003).            Because the instant

warrant is facially valid, that second step is unnecessary.

              Cutwright contends that the affidavit used to support the

search warrant was “bare bones” and that accordingly no reasonable

officer could have relied on it in good faith.             An affidavit is

bare bones “if it is so deficient in demonstrating probable cause

that it renders an officer’s belief in its existence completely

unreasonable.” United States v. Cisneros, 112 F.3d 1272, 1278 (5th

Cir. 1997).       Typically, bare bones affidavits “contain wholly

conclusory statements, which lack the facts and circumstances from

which a magistrate can independently determine probable cause.”

                                      4
United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006) (quoting

United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992);

see also United States v. Barrington 806 F.2d 529, 531 (5th Cir.

1986) (affidavit was devoid of specific details and stated only

that officer “received information from a confidential informant”

known to have provided accurate information in the past).

               Deputy Lowe’s affidavit is not bare bones. In it, Deputy

Lowe swore that the informant related particular details of the

contraband at the residence and that the informant had previously

identified cocaine and provided accurate information about the

location of narcotics on at least five separate occasions.                Lowe

also    knew    from   personal   experience   as   a   San   Augustine   law-

enforcement officer that Cutwright lived at the address provided.

This court has held on numerous occasions that warrant affidavits

containing sworn testimony substantially similar to Deputy Lowe’s

are not bare bones.        See Satterwhite, 980 F.2d at 317-18; United

States v. McKnight, 953 F.2d 898, 904-05 (5th Cir. 1992); Christian

v. McKaskle, 731 F.2d 1196, 1198 (5th Cir. 1984).                The warrant

facially provided a good-faith basis upon which the officers could

rely.    Denial of the suppression motion was not error.

2.     Denial of Motion to Produce Confidential Informant at Trial

               Cutwright next argues that the court erred in denying his

motion that the government produce the confidential informant as a

witness at trial.       We review denial of the motion for an abuse of



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discretion.       United States v. Thomas, 348 F.3d 78, 85 (5th Cir.

2003).    No error occurred here.

            The presence of the confidential informant at trial was

immaterial because the only pertinent information Cutwright alleges

the informant had was already contained in the warrant affidavit,

which is facially valid.       Even if the informant had knowledge of

facts    beyond    those   contained   in   the     warrant   affidavit,    the

government provided Cutwright with the informant’s name and last

known    address.      Cutwright   then     hired    a   process   server   who

interviewed several members of the informant’s immediate family but

was unsuccessful in locating the informant. “The Government is not

required to guarantee an informant’s presence at trial.”               United

States v. Gonzalez, 582 F.2d 991, 993 (5th Cir. 1978).                  Since

Cutwright was aware of the informant’s identity, the government

need only have made a reasonable effort to produce the informant.

See Fitzpatrick v. Procunier, 750 F.2d 473, 476 (5th Cir. 1985).

The government’s attempts to contact and locate the informant prior

to trial satisfy this modest burden.

            Finding no error in either of the district court’s

rulings, we AFFIRM the conviction.




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