                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2948
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                  Joey Antwan Smith

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                              Submitted: May 17, 2013
                               Filed: August 1, 2013
                                    [Published]
                                  ____________

Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.
                           ____________

PER CURIAM.

      A jury convicted Appellant Joey Smith of one count of possession of cocaine
base with intent to distribute within 1000 feet of a school, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 860, and one count of possession of firearms by a
prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) and 924(g)(1). Before trial,
Smith pleaded guilty to five counts of distribution of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B). On appeal, Smith claims that the search
warrant was invalid because it stated an incorrect date. Smith also claims that the
district court1 erred in denying his motion for judgment of acquittal. We affirm.

I. Background

      Starting in late 2010 and continuing into early 2011, Special Agent Ken
Arduser conducted a series of controlled buys where he purchased crack cocaine from
Smith. Agents also conducted a "trash pull" at Smith's residence and discovered over
200 plastic baggies with the corners cut out. Based on this information, agents
applied for a search warrant for Smith’s residence on January 25, 2011. A magistrate
judge approved the search warrant. However, the magistrate judge incorrectly dated
the search warrant January 24, 2011. The magistrate judge correctly dated the
application January 25, 2011. The warrant documents were also date-stamped
January 25, 2011. Agents executed the search warrant on January 26, 2011, and
discovered crack cocaine and other evidence of distribution. Smith subsequently
admitted to selling crack cocaine and made other incriminating statements during
questioning after a valid Miranda waiver.

       A grand jury indicted Smith with one count of distribution of cocaine base
within 1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)2;
five counts of distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B); one count of possession of cocaine base with intent to distribute within
1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 851, and 860;
and one count of possession of firearms by a prohibited person, in violation of 18
U.S.C. §§ 922(g)(1) and 924(g)(1). Smith filed a "Pro-se Motion to Dismiss"


      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
      2
          This count was dismissed before his trial.

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requesting dismissal of the charges against him, arguing the search warrant was
invalid due to the inconsistent dates. Smith's counsel subsequently filed a motion to
suppress, putting forth the same argument. Smith also claimed agents executed the
search warrant on January 24, 2011, and therefore the search warrant was not
approved until after the search. The district court denied the motions. Smith then
filed a motion for reconsideration and requested a hearing with the district court.

       After a hearing, the district court denied the motion for reconsideration. The
district court held that the error was a clerical error. The district court also
determined that agents executed the search warrant on January 26, 2011, not on
January 24, 2011, as Smith claimed. Further, the district court determined that the
search warrant was valid under the good-faith exception to the warrant requirement
established in United States v. Leon, 468 U.S. 897 (1984).

       Before trial, Smith pleaded guilty to the five counts of distribution of cocaine
base. Smith proceeded to trial on the counts of distribution of cocaine base within
1000 feet of a school and possession of firearms by a prohibited person. At the close
of the evidence at trial, Smith moved for judgment of acquittal, which the district
court denied. The jury subsequently convicted Smith on both counts. Smith now
appeals the district court's denial of his motion to suppress3 and the district court's
denial of his motion for judgment of acquittal.




      3
        Smith also filed a pretrial motion in limine, arguing that the evidence obtained
as a result of the search warrant must be excluded because the search warrant was
invalid; that motion was also denied. From Smith’s brief, he appears to only
challenge the denial of the motion to suppress. Because the standard of review for
a motion to suppress is not deferential to the district court, the outcome of our
decision is the same. See United States v. McCauley, 715 F.3d 1119, 1123 (8th Cir.
2013) (evidentiary rulings reviewed for an abuse of discretion)

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II. Analysis

       Smith makes two arguments on appeal as to why the district court erred in not
granting his suppression motion. First, Smith argues that agents executed the search
warrant on January 24, 2011—meaning that the search warrant was approved after
the search had already taken place—and that therefore the search warrant lacked
probable cause because the warrant was issued prior to the application. Alternatively,
Smith argues that even if this Court determines the incorrect date is simply a clerical
error, the search warrant is still invalid because the error was committed by the
authorizing judge. "When reviewing the denial of a motion to suppress, we review
the district court's factual findings for clear error and its legal conclusions de novo."
United States v. Anderson, 688 F.3d 339, 343 (8th Cir. 2012). "We will uphold the
district court's denial of a motion to suppress if it had a substantial basis for
concluding that probable cause existed." United States v. White, 356 F.3d 865, 868
(8th Cir. 2004).

        Like the district court, we believe United States v. White, 356 F.3d 865 (8th
Cir. 2004), is instructive. In White, the defendant claimed a search warrant was
facially invalid because the warrant stated an incorrect date. Id. at 868. Officers
presented the search warrant and affidavit to a state court judge on February 26, 2002.
Id. at 867. However, the officer had incorrectly included the date February 13, 2002
on the warrant. Id. The judge did not notice the mistake and signed and dated the
warrant on February 26, 2002. Id. Referring to the circumstances as a "technicality
issue," this Court determined that "the inconsistency between the date on the warrant-
application form and the date on the search warrant does not eliminate probable
cause." Id. at 869.

      Analyzing the facts of this case, we hold that the incorrect date is a
"technicality issue" similar to the issue in White that does not invalidate the search
warrant. Smith does not point to any evidence supporting his claim that agents

                                          -4-
executed the search warrant on January 24, 2011—before the magistrate judge
authorized the search warrant. We determine that the district court’s factual finding
that the magistrate judge authorized the warrant before its execution is not clearly
erroneous. See Anderson, 688 F.3d at 343 (standard of review). Reviewing the
circumstances of this case, the magistrate judge's clerical error does not defeat
probable cause.

       Smith argues that White is distinguishable because an officer made the error
in White, while a judge made the error in the current case. However, the cases Smith
relies on to support this argument are inapplicable because they analyze the ability
of a district court to correct its own mistake in an order, judgment, or other parts of
the record under Federal Rule of Criminal Procedure 36. See United States v.
Daddino, 5 F.3d 262 (7th Cir. 1993); United States v. Seavey, 445 F. Supp. 2d 80 (D.
Me. 2006). Both cases are irrelevant to the determination of whether a clerical error
invalidates a search warrant.

       Next, Smith argues the district court erred in denying his motion for judgment
of acquittal. "We apply the same standard of review to the district court's ruling on
a motion for judgment of acquittal as we do to a sufficiency of the evidence
challenge." United States v. Clark, 668 F.3d 568, 573 (8th Cir. 2012) (internal
quotation marks omitted). "We must affirm a jury verdict if, taking all facts in the
light most favorable to the verdict, a reasonable juror could have found the defendant
guilty of the charged conduct beyond a reasonable doubt." Id. (internal quotation
marks omitted).

      The district court did not err in denying Smith's motion for judgment of
acquittal. Smith first argues that the district court improperly denied his motion for
judgment of acquittal because the district court should have excluded the evidence
discovered during the search of his residence. As we have rejected this claim, this
argument is without merit. Further, Smith argues that the government failed to

                                         -5-
establish that Smith lived at the residence where much of the evidence was discovered
or that this evidence was connected to Smith in any way. However, the government
introduced evidence to establish that Smith lived at the residence and also that the
evidence discovered belonged to Smith. To ignore that evidence in favor of the
evidence Smith presented to the contrary would require this Court to view the
evidence in a light most favorable to Smith, which is improper. Id. at 573 (stating
that the appellate court must "view the evidence in the light most favorable to the
guilty verdict, granting all reasonable inferences that are supported by that evidence"
(internal quotation marks omitted)). Smith's confession, combined with the evidence
discovered during the controlled buys, trash pull, and search of his residence, is
sufficient evidence to support his convictions. Therefore, we reject this claim.

III. Conclusion

      For the foregoing reasons, we affirm.
                      ______________________________




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