                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                 No. 00-2398WM
                                  ___________

United States,                         *
                                       *
            Appellee,                  * Appeal from the United States
                                       * District Court for the Western
      v.                               * District of Missouri.
                                       *
Rodney L. Hollis,                      *
                                       *
            Appellant.                 *
                                 _____________

                                Submitted: January 9, 2001
                                Filed:     April 3, 2001
                                 _____________

Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and JONES1, District
      Judge.
                           _____________

JONES, District Judge.

      Defendant, Rodney L. Hollis, entered a conditional plea of guilty to one count
of possession of methamphetamine with intent to distribute, and one count of




      1
      The Honorable John B. Jones, United States District Judge for the District of
South Dakota, sitting by designation.
possession of marijuana with intent to distribute, both violations of 21 U.S.C. §
841(a)(1). Hollis now appeals the refusal of the district court2 to hold a Franks3 hearing
to allow him to challenge the validity of a government search warrant. He also appeals
the district court's denial of his requests for government disclosure of the identity of the
confidential informant whose statements helped obtain the search warrant and
disclosure of any offers of leniency made to the informant by law enforcement. We
affirm.

                                             I.

       On July 22, 1999, during the execution of a search warrant, law enforcement
officers seized marijuana, methamphetamine and drug paraphernalia from the home of
Rodney Hollis. The search warrant was based on the affidavit of a Missouri state
trooper, who stated that an informant had told him that "a large quantity of
methamphetamine" was being kept at Hollis's residence, and that the informant had
seen methamphetamine there in the previous ten days. In his affidavit, the trooper
stated that the informant had given reliable information on numerous occasions during
the previous two years. The trooper also stated that he had verified the informant's
description of the residence and that it belonged to Hollis.

       There is some evidence that the state trooper did not put everything the informant
told him into the affidavit. At a hearing before the magistrate judge, another law
enforcement officer testified that the informant said he or she had been to Hollis's home
with a woman who purchased methamphetamine there. The trooper's affidavit does not
mention this purchase.

       2
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri, acting on the Report and Recommendation of United States
Magistrate Judge James C. England.
       3
           Franks v. Delaware, 438 U.S. 154 (1978).

                                            -2-
       Hollis attempted to obtain a Franks hearing on the validity of the search warrant
by questioning the veracity of the affidavit. At the hearing before the magistrate judge,
the defense produced a witness who claimed to be the woman who had visited Hollis's
home with the informant in July 1999. This defense witness testified that she did not
buy drugs at the residence, and that neither she nor the informant saw drugs there on
that occasion. Based on the magistrate judge's report and recommendation, the district
court refused to grant a Franks hearing, and refused to order disclosure of either the
identity of the confidential informant or any offers of leniency made to the informant
by law enforcement.

                                            II.

       A district court's refusal to grant a Franks hearing is reviewed for abuse of
discretion. See United States v. Fairchild, 122 F.3d 605, 610 (8th Cir. 1997). The
same standard is applied to a district court's refusal to compel disclosure of the identity
of a confidential informant. See United States v. Wright, 145 F.3d 972, 975 (8th Cir.
1998).

      A.     Franks Hearing

      Under the Fourth Amendment, law enforcement officers may not obtain a search
warrant through statements which are intentionally or recklessly false. See Franks v.
Delaware, 438 U.S. 154, 164-65 (1978). Although a search warrant affidavit is
presumed to be valid, a defendant may obtain a hearing on the validity of the warrant
by making a substantial preliminary showing that the affidavit contains a material
statement by the affiant which is deliberately false or which was made with reckless
disregard for the truth. See id. at 170-71; United States v. Moore, 129 F.3d 989, 992
(8th Cir. 1997).




                                           -3-
       Hollis did not offer any evidence that the state trooper's sworn statements in
support of the search warrant were deliberately or recklessly false. The omission of
information about a drug sale which the informant may have provided to law
enforcement did not render the affidavit false or misleading. There is no evidence that
the state trooper believed or had reason to suspect that the informant was lying about
the presence of drugs at the residence.

        The testimony of the defense witness who claimed to have visited Hollis's home
with the confidential informant does in some respects contradict the statements of the
informant. The Supreme Court's decision in Franks, however, does not allow a
defendant to impeach the statements of a "nongovernmental informant." See Franks,
438 U.S. at 171. To obtain a Franks hearing based simply on purported falsehoods of
a confidential informant, the defendant must show that the confidential informant was
in fact acting as a government agent. United States v. McAllister, 18 F.3d 1412, 1417
(7th Cir. 1994).

        The most important factors in determining whether a private citizen was acting
as an agent of the government are whether the government acquiesced in the citizen's
improper conduct, and whether the citizen was acting to assist law enforcement or to
further his own ends. See United States v. Marlbrough, 922 F.2d 458, 462 (8th Cir.
1990). Hollis has not shown that law enforcement acquiesced in the confidential
informant's allegedly false statements, or that the informant had a public-spirited, as
opposed to a self-serving, reason for providing those statements to law enforcement.
Likewise, there is no evidence that the confidential informant acted on anything other
than his or her own initiative in providing the information to law enforcement. Hollis
failed to show that the confidential informant was acting as a government agent. Under
these circumstances, the magistrate judge was not required to hold a Franks hearing.
See McAllister, 18 F.3d at 1417-18.




                                         -4-
      B.     Identity of the Confidential Informant

       The Constitution does not require that prosecutors disclose the identity of
confidential informants in every case. See McCray v. Illinois, 386 U.S. 300 (1967).
To justify the compelled disclosure of a confidential informant's identity, a defendant
must show that his right to the information outweighs the government's traditional
privilege to withhold it. See Roviaro v. United States, 353 U.S. 53, 59-62 (1957). "In
order to override the government's privilege of nondisclosure, defendants must establish
beyond mere speculation that the informant's testimony will be material to the
determination of the case." United States v. Harrington, 951 F.2d 876, 877 (8th Cir.
1991).

        Under this standard, the 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. See Moore, 129 F.3d at 992. The confidential informant in this case
did not participate in the offense charged against Hollis, and the government stated that
it did not intend to call the informant as a witness at trial. There was, accordingly, no
obligation on the part of the government to reveal the informant's identity.

      C.     Offers of Leniency

      Hollis does not cite any direct authority in support of his argument that the
government was required to disclose offers of leniency made to the confidential
informant. In any event, government witnesses did disclose, in their testimony before
the magistrate judge, that the confidential informant was not offered any leniency in
exchange for the information on which the affidavit was based. Hollis's appeal of this
issue is moot.




                                          -5-
                                           III.

       Hollis failed to make a substantial preliminary showing that the state trooper's
statements in his affidavit were deliberately or recklessly false, or that the confidential
informant on whose statements the affidavit was based was acting as government agent.
He was not entitled to disclosure of that informant's identity, and his request for
disclosure of offers of leniency was satisfied by the testimony of government witnesses.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

             CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -6-
