May 21, 1993
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           
No. 93-1018
                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      RICKIE ALBERT SCALIA,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. D. Brock Hornby, U.S. District Judge]
                                                     

                                           

                              Before

                       Selya, Circuit Judge,
                                           

                 Friedman,* Senior Circuit Judge,
                                                

                     and Cyr, Circuit Judge.
                                           

                                           

   James  Michael Merberg with whom  Susan J. Naughton  was on brief
                                                      
for appellant.
   F.  Mark Terison,  Assistant  United States  Attorney, with  whom
                   
Richard S. Cohen,  United States  Attorney, and  Jonathan R.  Chapman,
                                                                   
Assistant United States Attorney, were on brief for appellee.

                                           

                           May 21, 1993
                                           

                

*Of the Federal Circuit, sitting by designation.
          CYR,  Circuit Judge.    Appellant Rickie  Albert Scalia
          CYR,  Circuit Judge.
                             

entered a conditional guilty plea, see Fed. R. Crim. P. 11(a)(2),
                                      

following the district court's  denial of his motion  to suppress

evidence  seized from his residence pursuant to a search warrant.

He now  appeals, see id.,  his conviction for  unlawful "manufac-
                        

ture"  of marijuana, 21 U.S.C.   841(a)(1);  18 U.S.C.   2, and a

criminal forfeiture  conviction under  21 U.S.C.    853.   Scalia

also challenges the mandatory minimum five-year  sentence imposed

pursuant to  21 U.S.C.    841(b)(1)(B)(vii) (minimum  sentence of

five  years for "manufacture"  of one  hundred or  more marijuana

plants).    Scalia contends  that  the  affidavit supporting  the

search warrant application was insufficient to establish probable

cause,  and that  the district  court lacked  sufficient reliable

evidence  on which to find  that more than  one hundred marijuana

plants  were seized  from his  residence.   Finding no  error, we

affirm.

A.   Probable Cause
                   

          On February  14, 1992,  Agent Kenneth MacMaster  of the

Maine Bureau of Intergovernmental Drug Enforcement (BIDE) applied

for a  state court  warrant to  search appellant's  residence for

marijuana  and  related  paraphernalia.   MacMaster's  supporting

affidavit  relied upon,  inter  alia, information  provided by  a
                                    

confidential informant described as  a "young concerned citizen."

The  informant told  MacMaster  that he  had  visited the  Scalia

residence  on  numerous occasions  and  as recently  as  ten days

before  coming  to MacMaster.   The  informant  said that  he had

observed two marijuana plants  a foot tall in  appellant's living

room, five eighteen-inch  plants in the bedroom, and  from forty-

five  to  fifty plants  of various  sizes  in a  basement walk-in

cooler.    The informant  told MacMaster  that  s/he was  able to

recognize the plants because  s/he had "received instruction from

his/her school  concerning various drugs,"  and that some  of the

informant's family and  friends were casual marijuana users.  The

marijuana  plants in the  walk-in cooler  were being  grown under

artificial  lights  operated  by switches  installed  outside the

padlocked cooler door.   The informant observed that  other rooms

in appellant's residence and rooms in an adjacent horse barn were

padlocked  as well, and that  Scalia kept several  shotguns and a

handgun on the premises.  On at least four occasions,  the infor-

mant observed Scalia selling marijuana at either his residence or

his business premises.

          The primary  contention Scalia makes on  appeal is that

the  MacMaster affidavit  did not  establish the  reliability and

veracity of the informant because (1) MacMaster did not explicit-

ly  attest that the informant  had no prior  criminal record; (2)
                                           

the  informant apparently  had  not provided  information to  law

enforcement  officials  previously;  and  (3)  MacMaster  did not

                                4

attempt  to  corroborate the  informant's  tip through  follow-up

surveillance efforts at appellant's residence.1

          We review the issuance of  a search warrant with "great

deference,"  United States v. Ciampa,  793 F.2d 19,  22 (1st Cir.
                                    

1986), to verify that there existed a "substantial basis" for the

judicial  officer's common-sense  determination that,  "given all

the  circumstances set forth  in the affidavit .  . . , including

the  'veracity' and  'basis  of knowledge'  of persons  supplying

hearsay information, there [was]  a fair probability that contra-

band or  evidence of a  crime [would]  be found  in a  particular

place."   United States v. Caggiano,  899 F.2d 99,  102 (1st Cir.
                                   

1990) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).
                                

          The  MacMaster affidavit stated  that the informant was

"not currently  facing any  criminal or  juvenile charges  nor is
              

he/she under  suspicion for  any wrongdoing."   (Emphasis added.)

Appellant  first suggests that MacMaster's  use of the word "cur-

rently" was deliberate wordplay    a statement  which was techni-

cally true but designed to camouflage the fact that the informant

had  confronted criminal or juvenile charges in the past.  Gener-
                                                        

                  

   1Appellant likewise contends that  the affidavit heavily depended
on "stale"  evidence, namely DEA  and BIDE debriefing  interviews with
appellant's alleged  associates implicating appellant in  similar drug
trafficking activities as far back as 1986-87.  As the recent informa-
tion provided  by the informant  was sufficient to  establish probable
cause, we need  not address the "staleness" claim.   See United States
                                                                    
v. Bucuvalas, 970 F.2d 937,  940 (1st Cir. 1992) ("Staleness does  not
          
undermine the  probable cause determination if  the affidavit contains
information  that updates,  substantiates,  or corroborates  the stale
material."), cert. denied, 113 S. Ct. 1382 (1993).
                       

                                5

ally speaking, the representations  contained in a search warrant

affidavit  are presumed  valid and  truthful.   United  States v.
                                                              

Spinosa, 982 F.2d  620, 626 (1st Cir. 1992).   To mount an effec-
       

tive  challenge based on an alleged use of deliberate or reckless

falsehoods by an affiant, a defendant must request an evidentiary

hearing  pursuant to Franks v. Delaware, 438  U.S. 154 (1978).  A
                                       

Franks  hearing is required only  if the defendant  makes a "sub-
      

stantial  preliminary showing (1)  that a false  statement in the

affidavit has been made knowingly and intentionally, and (2) that

the  false  statement is  necessary for  the finding  of probable

cause."   United States v. Paradis,  802 F.2d 553,  558 (1st Cir.
                                  

1986).   The defendant's offer of  proof must be "more  than con-

clusory"  and should  be supported by  "[a]ffidavits or  sworn or

otherwise reliable statements of witnesses."  Franks, 438 U.S. at
                                                    

171.  A  comparable showing  is required if  the defendant  would

establish that technically accurate statements by an affiant have

been  rendered  misleading by  material  omissions.   See  United
                                                                 

States v. Rumney, 867 F.2d 714, 720 (1st Cir.), cert. denied, 491
                                                            

U.S. 908 (1989).

          Appellant  neither  requested  a  Franks   hearing  nor
                                                  

attempted an  offer of  proof relating  to any  material omission

from the MacMaster affidavit.  Moreover, on appeal there has been

no showing that  the informant  ever had a  criminal or  juvenile

record, or  any  other  involvement  with the  law,  which  might

                                6

undermine the reliability of the affidavit.  We therefore find no

basis for concluding that the informant had a prior record.

          Next, appellant suggests that the reliability of first-

time  information provided  by  a "concerned  citizen" should  be

considered  inherently suspect,  since law  enforcement officials

can  have had  no  "track record"  against  which to  assess  the

informant's competence to  convey accurate intelligence  relating

to criminal activities, or the trustworthiness of the informant's

motives in  volunteering information.  We disagree.  "[A] warrant

affidavit [need not contain] an averment of previous reliability,

the  appropriate inquiry  always  being  whether the  informant's

present information is  truthful or reliable."   United States v.
                                                              

Cochrane, 896 F.2d 635,  641 (1st Cir.) (citing United  States v.
                                                              

Harris,  403 U.S.  573,  581-82 (1971))  (emphasis added),  cert.
                                                                 

denied, 496 U.S. 929 (1990).  In the absence of a prior record of
      

reliability,  we have  recognized that,  where the  informant was

"not  a professional .  . . but  a private citizen  with no known
                                                                 

criminal record or other  criminal contacts, who came forward  on
               

his own  . .  .  [,] the  informant's story  may  be more  easily

accepted . . . ."  United States v. Campbell, 732 F.2d 1017, 1019
                                            

(1st Cir. 1984)  (citing United  States v. Burke,  517 F.2d  377,
                                                

379-81  (1st Cir.  1975)) (emphasis  added).   Since there  is no

evidence  that the informant who  came to MacMaster  either had a

criminal record, or was suspected of current criminal activity, a

                                7

neutral judicial officer fairly could find that the informant was

a "private citizen" who volunteered the information to MacMaster.

          Furthermore,  "an  informant's  reliability   need  not

invariably be demonstrated through  the detailed narration of the

information  previously furnished  to  law enforcement  .  . .  .
                                 

Rather, the affidavit may disclose an adequate basis for evaluat-

ing  the informant's  veracity through  the very  specificity and
                                                             

detail with which it  relates the informant's first-hand descrip-
      

tion of  the place  to be  searched or the  items to  be seized."

United States  v. Taylor, 985  F.2d 3, 6 (1st  Cir. 1993) (citing
                        

Caggiano,  899 F.2d at  102-03) (emphasis added);  see also Coch-
                                                                 

rane, 896 F.2d at 641 ("[A]n important indicia (sic) of reliabil-
    

ity is the  fact that  the informant's knowledge  was based  upon

personal observation rather than hearsay.").  As is apparent from
                    

our  recitation  of  the  confidential  information  provided  to

MacMaster, the  particularity of  the informant's description  of

the  interior  and contents  of  the  residence (e.g.,  padlocked
                                                     

doors,  multiple firearms),  the  location, size,  and number  of

marijuana plants, the marijuana growing apparatus (e.g., basement
                                                       

cooler,  artificial  lights),  and  the  illegal marijuana  sales

conducted  by  appellant  inside  the  search  premises, provided

considerable  intrinsic support  for the informant's  capacity to

                                8

convey  reliable intelligence  relating to the  criminal activity

attested to in the affidavit.2

          Finally,  appellant argues  that MacMaster  should have

corroborated  the informant's  tip before  applying for  a search

warrant,  preferably through surveillance  of Scalia's residence.

Corroboration may take various forms, however, and we  have never

intimated that surveillance is mandatory.  See, e.g., Taylor, 985
                                                            

F.2d at 6 (finding probable  cause where corroboration of  infor-

mant's  tip did not go beyond check of target's criminal record).

The  confidential informant's  tip  to  MacMaster comported  with

information received from other  sources, including previous BIDE

debriefing interviews with several of Scalia's former associates,

see supra note 1, as well as informal complaints lodged  with the
         

Maine  State Police  by  eight unidentified  citizens  expressing

concerns about Scalia's drug trafficking activity.

          The  combined force  of the  informant's  detailed tip,

MacMaster's  expert  assessment,  and  the  corroborative  police

reports provided substantial support  for a common-sense determi-

nation by the issuing judge that there existed a fair probability

                  

   2MacMaster, a BIDE  agent for thirteen years, had participated in
more than eighteen hundred  drug investigations.  He attested  both to
the informant's demeanor during the interview and  to the authenticity
of  the informant's  description  of the  suspected criminal  activity
("impressed  by  the honesty  of this  person  and his/her  ability to
describe events which he/she had seen").   See, e.g., Taylor, 985 F.2d
                                                          
at 6 ("[T]he issuing magistrate properly may credit the experience and
pertinent expertise  of a law  enforcement affiant  in evaluating  the
authenticity  of the  informant's  description of  the target's  modus
operandi.").

                                9

that  marijuana  and  related  paraphernalia would  be  found  in

appellant's residence.

B.   Mandatory Minimum Sentence
                               

          A defendant  convicted under  21 U.S.C.    841(a)(1) is

subject to a  mandatory five-year minimum  sentence if the  court

finds by  a  preponderance of  the  evidence that  the  defendant

manufactured or  possessed "100 or more  marijuana plants regard-

less  of weight."   21  U.S.C.    841(b)(1)(B)(vii).   See United
                                                                 

States  v. McMahon, 935 F.2d  397, 400 (1st  Cir.), cert. denied,
                                                                

112 S. Ct.  272 (1991).  Were it not  for the mandatory statutory

minimum, appellant would  have been exposed  to a 46-to-57  month

guideline sentencing range (Level  23, Criminal History  Category

I),  based on  the total  weight of  the marijuana  plants (111.8

kilograms) seized at his  residence.  See U.S.S.G.    2D1.1(c)(9)
                                         

(100 KG-400 KG marijuana; level 26); id.   3E1.1(a), (b) (3-level
                                        

reduction  for  acceptance  of  responsibility);  id.    5G1.1(b)
                                                     

("Where a  statutorily required minimum sentence  is greater than

the maximum  of the  applicable guideline range,  the statutorily

required minimum sentence shall be the guideline sentence.").

          At  the time the search  warrant was executed, an agent

for the  Maine Drug  Enforcement Agency, Bruce  Bristow, visually

examined  the marijuana plants found  on the premises.   Based on

his  education and  experience,  Bristow concluded  that all  112

plants  were marijuana.  He randomly selected fifteen plants, and

                                10

submitted these representative plants  (ranging from one and one-

half  inches to  two  feet tall)  for  chemical analysis.3    The

chemical analysis  confirmed that all fifteen  samples were mari-

juana  plants.   Following an  evidentiary hearing,  the district

court  found  that all  112 plants  were  marijuana.   Scalia was

sentenced to the mandatory minimum five-year term.

          The district court's drug-quantity finding was based on

four factors:  (1) Bristow's trained visual identification of all

plants seized at the search scene as marijuana; (2) the fact that

all  the  plants  were  seized contemporaneously  from  the  same

location;  (3)  the positive  chemical  analysis  on all  fifteen

sample  plants  tested, and  (4)  the  absence of  evidence  that

appellant was  growing anything other than  marijuana.  Appellant

challenges only the first factor relied on by the district court,

by  attempting to  undercut the  reliability of  Bristow's visual

identification.   Appellant argues that Bristow  conceded that at

least  two  other plant  species which  grow  in Maine  look like

marijuana  when  they  are only  one  and  one-half  inches tall.

Appellant's claim fails for two reasons.

          First, while the record reflects that Bristow testified

that  two marijuana look-alikes do grow in Maine, he never stated

                  

   3Bristow  seized 67 plants from the bedroom, measuring from 1 1/2
inches to 10 inches in height, and 45 plants from the basement cooler,
all  measuring 24  inches "more or  less."   Bristow then  divided the
plants into three groups (i.e., 1 1/2  inch, 10 inch, and 24 inch) and
took five samples from each group. 

                                11

that his training  and experience left  him incapable of  distin-

guishing  these  look-alikes  from marijuana.4    Rather, Bristow

stood  by his visual identification.  Cf. United States v. Maceo,
                                                                

873 F.2d 1, 6 (1st Cir.) (extrapolations of drug quantity involve

issues of credibility  and weight of evidence  reserved for trier

of fact), cert.  denied, 493  U.S. 840 (1989);  United States  v.
                                                             

Echeverri, 982 F.2d  675, 677 (1st  Cir. 1993) (qualification  of
         

"expert" witness reviewed only for manifest abuse of discretion).

          Second,  the other  factors relied  on by  the district

court strongly  support its drug-quantity determination  as well.

See United States v. Akitoye,  923 F.2d 221, 227 (1st  Cir. 1991)
                            

(factual findings  on drug quantity reviewed  for "clear error").

"Although  the sentencing  court must  'err on  the side  of cau-

tion[,]'"   United States v. Barnett,     F.2d    ,     [Nos. 91-
                                                       

                  

   4The relevant exchange was as follows:

   Counsel:  Based  on your  training  and experience,  has it  been
             brought  to your  attention  that there  are two  other
             plant-like substances that exhibit similar characteris-
             tics to the marijuana plant?

   Bristow:  Yes.

   Counsel:  How many different ones to your knowledge?

   Bristow:  That I've run across in the State of Maine, two.  There
             may be more, two that I'm very familiar with.
                                                         

   Counsel:  All right.  And part of  your training is to attempt to
             differentiate between these similar plants and the ones
             which are in fact marijuana?

   Bristow:  Yes, sir.

                                12

1890,  91-1891, 92-1778, slip op. at 12 (1st Cir. Mar. 29, 1993)]

(approximating producible quantity of controlled  substance based

in part on amount of  precursor chemicals seized) (quoting United
                                                                 

States v. Sklar, 920 F.2d 107, 113 (1st Cir. 1990)), drug-quanti-
               

ty  estimations  need  not  be  statistically  or  scientifically

precise.   See  U.S.S.G.    6A1.3  ("In resolving  any reasonable
              

dispute concerning a factor  important to the sentencing determi-

nation, the  court  may  consider  relevant  information  without

regard to  its admissibility under the rules of evidence applica-

ble  at  trial,  provided  that the  information  has  sufficient
                                                                 

indicia  of  reliability  to  support  its  probable  accuracy.")
                                                              

(emphasis added);  United States v.  Uwaeme, 975 F.2d  1016, 1018
                                           

(4th  Cir. 1992)  (noting that  drug-quantity estimations  may be

based  on hearsay, nonscientific  testimony, defendant's notebook

entries,  street values of drugs equivalent  to money seized from

defendant,  or on  extrapolations of  potential drug  output from

seized components).

          More to the present point, courts have endorsed statis-

tically based drug-quantity  extrapolations predicated on  random

test  samples in circumstances  where the government  was able to

demonstrate an "adequate basis in  fact for the extrapolation and

that  the quantity was determined in a manner consistent with the

accepted standards of [reasonable]  reliability."  United  States
                                                                 

v. McCutchen,      F.2d      ,      (3d Cir. 1993)  [No. 92-1536,
                                   

1993 U.S. App. LEXIS 7651, at 11 (3d Cir. Apr. 13, 1993)]; United
                                                                 

                                13

States v. Pirre, 927 F.2d 694, 697 (2d Cir. 1991)  ("It is suffi-
               

cient  for the government to  show that its  method of estimating

the total [amount  of drugs] is grounded  in fact and  is carried

out in a manner consistent with accepted standards of  reliabili-

ty."); see also Barnett,      F.2d at     [Nos. 91-1890, 91-1891,
                                         

92-1778,  slip op. at 13] ("We must determine whether the govern-

ment presented  sufficient reliable evidence to  permit the court

reasonably  to conclude  that appellants  were responsible  for a

quantity  of drugs at least  equal to the  quantity threshold for

the  assigned base  offense  level.").   For example,  sufficient

indicia  of reliability may be found where a preponderance of the

evidence  demonstrates  that  (1)  a  proper  "random"  selection

procedure was employed; (2) the chemical testing method conformed

with an accepted methodology; (3) the tested and untested samples

were  sufficiently similar  in physical  appearance; and  (4) the

tested and untested samples  were contemporaneously seized at the

search scene.  See McCutchen,     F.2d at      [No. 92-1536, 1993
                                              

U.S. App. LEXIS 7651, at 11-12 (3d Cir. Apr. 13, 1993)].  In sum,

the  overall margin  of reliability  in a  drug-quantity approxi-
                                   

mation must be  adequate to afford reasonable assurance  that the

defendant  is not subjected to a guideline sentence or a mandated

minimum  sentence greater  than  warranted by  the reliable  evi-

                                14

dence.5   Given the relatively light burden of proof, the reason-

able reliability  of the drug-quantity sampling and extrapolation

procedures employed by  the government, and the  utter absence of

countervailing  drug-quantity  evidence, we  affirm  the district

court's findings.  

          Affirmed.
                  

                  

   5A videotape of Bristow's  "random" plant selection procedure was
received  in  evidence.    Unlike  the drug  weight  extrapolation  in
                                                 
McCutchen, chemical analysis of the fifteen sample plants  selected by
       
Bristow  permitted a  straightforward  extrapolation as  to the  total
number of plants.  The plants, all exhibiting the telltale saw-toothed
    
leaf  structure, were seized on the  same day from the same residence,
giving  rise to a "strong  inference" that only  marijuana plants were
seized.  McCutchen,        F.2d at       [No. 92-1536,  1993 U.S. App.
                                      
LEXIS 7651, at 13 (Apr. 13, 1993)].  Finally, more than twelve of  the
seized  plants (i.e., over  10% of the  total) would have  had to test
                  
negative  in order  to  bring the  total  below the  100-plant  cutoff
required to trigger the mandatory five-year minimum sentence  under 21
U.S.C.    841(b)(1)(B)(vii).   Yet all fifteen  random samples  tested
positive for marijuana.

                                15
