
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2202                                    UNITED STATES,                                      Appellee,                                          v.                                 RAYMOND LEE HIGGINS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Ricky L.  Brunette with whom Brunette, Shumway & Ryer was on brief            __________________           ________________________        for appellant.            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with            _______________________        whom  Richard S. Cohen, United States Attorney, and Richard W. Murphy,              ________________                              _________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                     May 28, 1993                                 ____________________                      STAHL, Circuit Judge.   In  this appeal,  defendant                             _____________            Raymond Lee Higgins argues that the district court improperly            denied his request for in camera disclosure of a confidential                                   __ ______            government informant.   Finding  that the district  court did            not abuse  its discretion in denying  defendant's request, we            affirm.                                          I.                                          I.                                          __                            BACKGROUND & PRIOR PROCEEDINGS                            BACKGROUND & PRIOR PROCEEDINGS                            ______________________________                      In  January of 1992,  Detective Captain Rick Frazee            of  the Fairfield,  Maine, Police  Department learned  from a            confidential informant  that  defendant,  a  parolee  from  a            federal drug trafficking  conviction, was regularly supplying            Daryl  Coskery,   another  known  drug  dealer,   with  large            quantities of marijuana.  The informant also told Frazee that            defendant  and  Coskery intended  to  drive  from Waterville,            Maine,  to Virginia  Beach,  Virginia, in  order to  purchase            $50,000.00 worth of marijuana.   He provided such details  as            the  car in which the defendant and Coskery would travel, and            the approximate dates and times of departure and return.                        Using this information, Frazee, along  with Kenneth            MacMaster,  a   Special  Agent  with  the   Maine  Bureau  of            Intergovernmental Drug Enforcement (BIDE), and two other BIDE            agents, observed  defendant and Coskery leaving  the state at            the time and in the manner predicted by the informant.                                         -2-                                          2                      Based   on  these  facts  and  their  corroborative            surveillance, MacMaster  sought  a warrant  to  search,  upon            defendant's  return to  Maine, his  car and  home for  drugs,            evidence  of  drug trafficking,  and  firearms.   MacMaster's            search warrant affidavit outlined the events described above,            and attested  to the confidential informant's  reliability as            established  by his  previous participation  in approximately            six earlier  controlled drug  buys which resulted  in arrests            and  convictions.   A  State of  Maine  District Court  Judge            issued the warrant.                      Pursuant to the warrant, defendant  was apprehended            upon his return to Maine by police officers positioned at the            state line.   The ensuing  car search yielded  less than  one            ounce of marijuana.   The search of  defendant's home yielded            another small marijuana supply  in addition to four firearms.            On February 13, 1992, defendant was indicted in federal court            on four counts of possession of a  firearm in violation of 18            U.S.C.    922(g)(1) and 924(a)(2).1                                            ____________________            1.  18 U.S.C.   922(g)(1) provides in relevant part:                   It shall  be unlawful for  any person who  has been                 convicted in  any court  of, a crime  punishable by                 imprisonment for a term exceeding one year; to .  .                 . possess . . . any firearm or ammunition . . . .                 18 U.S.C.   924(a)(2) governs fines and imprisonment for            violations of   922(g)(1).  The crime for which defendant was            paroled   at  the  time  of  his  arrest  was  punishable  by            imprisonment for more than one year.                                          -3-                                          3                      On  March  3,  1992,  defendant filed  a  pre-trial            motion  seeking,  inter alia,  in  camera  disclosure of  the                              _____ ____   __  ______            confidential  informant's identity.    Defendant argued  that            such  disclosure was necessary in  order for him  to make the            preliminary showing required to  obtain a Franks  suppression                                                      ______            hearing.2    A Magistrate  Judge  recommended  denial of  the            request, and on May 28, 1992, the district court reviewed and            accepted that recommendation.  Following a one-day jury trial            on June 6, 1992, defendant was convicted on all counts.                                             II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      On appeal, defendant argues that the district court            erred  in denying his request for in camera disclosure of the                                              __ ______            confidential informant's identity.  We do not agree.                      When the government obtains a  search warrant based            on   information  provided   by  a   confidential  informant,            defendants often  lack the  information required to  meet the                                            ____________________            2.  Under Franks v.  Delaware, 438 U.S. 154, 155-56 (1977), a                      ______     ________            defendant may obtain  a suppression hearing if  s/he "makes a            substantial  preliminary  showing  that  a   false  statement            knowingly and intentionally,  or with reckless  disregard for            the  truth, was included in the warrant affidavit, and if the            allegedly  false statement  is  necessary to  the finding  of            probable cause . . . ."  If, at the hearing, it is determined            that such  a false statement was  intentionally or recklessly            included in the warrant affidavit, evidence obtained pursuant            to the false statement must be suppressed.  Id. at 156.                                                        ___                                         -4-                                          4            exacting standards of Franks.3   See, e.g., United  States v.                                  ______     ___  ____  ______________            Southard, 700  F.2d 1, 10-11 (1st Cir. 1983).  In such cases,            ________            district  courts may  conduct in  camera examinations  of the                             ___          __  ______            affiant and,  if necessary,  of  the informant,  in order  to            determine whether disclosure of the  confidential informant's            identity  would  enable  the  defendant to  obtain  a  Franks                                                                   ______            hearing.  Id.                         ___                      However, "a  district court need not  conduct an in                                                                       __            camera  hearing  whenever the  identity  of  an informant  is            ______            requested."  United States v. Fixen, 780 F.2d 1434, 1439 (9th                         _____________    _____            Cir.  1986).  Rather, "it should rest entirely with the judge            who hears  the motion  to suppress  to decide  whether [s/]he                                                                   ______            needs  such disclosure as to the informant in order to decide                                            ____________________            3.  Franks, 438 U.S.  at 171, provides  a clear standard  for                ______            determining   whether  a  defendant  has  made  a  sufficient            preliminary showing to obtain a hearing:                 There is, of course, 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                 and must be supported by more than a mere desire to                 cross-examine.     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.   They  should                 point out  specifically the portion  of the warrant                 affidavit  that is  claimed to  be false;  and they                 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.     The                 deliberate  falsity  or  reckless  disregard  whose                 impeachment is  permitted  . .  .  is that  of  the                 affiant, not of any nongovernmental informant.                                         -5-                                          5            whether the officer is a believable  witness."  United States                                                            _____________            v.  Jackson, 918 F.2d 236, 241 (1st Cir. 1990) (citations and                _______            internal  quotations omitted)  (emphasis  in original).   See                                                                      ___            also  United States  v. Giacalone, 853  F.2d 470,  477-78 n.1            ____  _____________     _________            (6th  Cir. 1988)  ("We believe  that the  trial judge  should            retain the  discretion to determine  what type of  hearing is            necessary,  if any, to determine  the veracity of the affiant            in cases where the defendant  has alleged that the  affidavit            contains  false  information,  but   has  failed  to  make  a            `substantial preliminary  showing' that the  affiant has lied                                                         _______            such  as  that  which   would  require  a  Franks  hearing.")                                                       ______            (emphasis  in  original).   Finally,  "a  decision denying  a            defendant's  request for  an in  camera proceeding  should be                                         __  ______            overturned  only if there is an abuse of discretion."  Fixen,                                                                   _____            780 F.2d  at 1439.  Our  careful review of the  record in the            instant case shows no abuse of discretion.                        Defendant's motion for in camera  disclosure begins                                             __ ______            by naming  an  individual,  Matthew  Tulley,  whom  defendant            suspects was the confidential informant.   The motion goes on            to suggest that  Tulley was aware that defendant  and Coskery            planned an  innocent trip  to Virginia,  but that  Tulley, in            concert with Frazee and MacMaster, fabricated the notion that            the trip was  for the  purpose of purchasing  marijuana.   If            true,  these allegations  might raise  serious constitutional            issues.  Defendant fails, however, to offer proof of any fact                                         -6-                                          6            that  is materially  inconsistent with  the facts  recited in            MacMaster's search warrant affidavit.                      First,  defendant  offers   to  prove  that  Tulley            learned of the trip through an acquaintance, Dale Peters, and            that  Peters never told Tulley  that the purpose  of the trip            was  to  purchase marijuana.    Defendant  does not  contend,            however, that Peters was the only person who knew of the trip            to  Virginia.   Thus, even  if Tulley  was the  informant, he            might  easily have learned  additional information  about the            illicit nature of the  trip from a source other  than Peters.            Accordingly, defendant's offer  of proof regarding  Peters is            not at all inconsistent with MacMaster's affidavit.                      Second,  defendant  offers  to prove  that  on  the            evening of  defendant's and  Coskery's departure  from Maine,            Tulley,  under  the  surveillance  of Frazee  and  MacMaster,            unsuccessfully attempted  to  make a  controlled purchase  of            marijuana from Coskery.  Moreover, defendant claims that this            attempted purchase  was not  included  in MacMaster's  search            warrant affidavit.   Again, this  offer of  proof misses  the            mark.   When  a defendant  offers proof  of an  omission, the            "issue  is  whether, even  had  the  omitted statements  been            included in the affidavit, there was still probable cause  to            issue the warrant."   United States v. Rumney, 867  F.2d 714,                                  _____________    ______            720-21  (1st Cir.), cert. denied, 491 U.S. 908 (1989).  Here,                                _____ ______            the   controlled   purchase  incident   is   not  necessarily                                         -7-                                          7            inconsistent with any  of the other  events recounted in  the            warrant  affidavit.  Thus, even if the affidavit had included            an account of  the incident,4 there were  still ample grounds            for a  finding of  probable  cause. Accordingly,  defendant's            offer of proof regarding  the controlled purchase incident is            not materially inconsistent with MacMaster's affidavit.                      In sum,  defendant has failed to  articulate how in                                                                       __            camera disclosure of  the informant's  identity would  enable            ______            him to obtain a Franks hearing.  On one hand, if an in camera                            ______                              __ ______            hearing  disclosed  that  the  informant  was  Tulley,  there                                                      ___            remains   nothing  in  the  record,  aside  from  defendant's            conclusory assertions  and insufficient  offers of proof,  to            support the theory that  MacMaster submitted false statements            in order to obtain the warrant.  On the other hand, if the in                                                                       __            camera hearing  disclosed that the informant  was not Tulley,            ______                                            ___            then  defendant  has  offered  no  alternative   grounds  for            obtaining  a  Franks  hearing.5    Accordingly,  the district                          ______                                            ____________________            4.  Both  MacMaster and  Frazee submitted  affidavits stating            that,  while they took part in surveillance of Coskery on the            evening of his departure  from Maine, neither knew of  a plan            to make a controlled purchase of marijuana from  Coskery that            evening.            5.  We  note  additionally  that  defendant's  motion  for in                                                                       __            camera  disclosure was  seriously  inadequate in  form.   The            ______            motion was supported solely by an affidavit signed by defense            counsel.   The affidavit did not provide the sworn statements            of  witnesses,  nor  did  it  explain  the  absence  of  such            statements,  as  required  by   Franks,  438  U.S.  154,  171                                            ______            ("Affidavits  or sworn  or otherwise  reliable statements  of            witnesses    should   be   furnished,    or   their   absence            satisfactorily  explained.").    Thus,  even  if  defendant's                                         -8-                                          8            court  did not  abuse its  discretion in  denying defendant's            request  for  an in  camera hearing  on  the identity  of the                             __  ______            confidential informant.6                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the foregoing  reasons,  the  judgment of  the            district court is affirmed.                                            ____________________            offers  of proof  were  substantively  meritorious, we  would            require  more than  the conclusory  allegations set  forth in            counsel's affidavit.  Id.                                  ___            6.  Relying almost exclusively on State v. Thetford, 745 P.2d                                              _____    ________            496 (Wash. 1987), defendant also argues on appeal that Tulley            was  an  "ad hoc"  agent of  the  Fairfield Police,  and that                      __ ___            therefore Tulley's veracity,  along with MacMaster's,  should            be at issue.  To the extent that defendant  raised this issue            below, he did so in a perfunctory manner.  "A party is not at            liberty to  articulate specific arguments for  the first time            on  appeal simply  because the  general issue was  before the            district court."   United States  v. Slade, 980  F.2d 27,  31                               _____________     _____            (1st Cir. 1992).  Accordingly, defendant's argument is deemed            waived.  In  any event,  however, our careful  review of  the            proceedings below satisfies us independently that defendant's            argument is unsupported by the record.                                         -9-                                          9
