                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-2008

USA v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2171




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 07-2171
                                      ____________

                           UNITED STATES OF AMERICA

                                              v.

                                   DEREK W. SMITH,

                                               Appellant.
                                      ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                   (No. 05-cr-0025-2)
                      District Judge: Honorable John E. Jones, III

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 13, 2008

       Before: FUENTES, CHAGARES, and VAN ANTWERPEN, Circuit Judges
                              ____________

                                   (Filed May 5, 2008)


                               OPINION OF THE COURT

CHAGARES, Circuit Judge.

       Derek Smith appeals his conviction for violating 21 U.S.C. § 843(b). He contends

that the District Court erred by not suppressing evidence obtained from Smith’s house

pursuant to a search warrant. Smith asserts that the warrant did not establish probable
cause and that the Government failed to abide by the notice obligations imposed by

Federal Rule of Criminal Procedure 12(b)(4)(B). Because the warrant contained

sufficient evidence that the place to be searched contained the things to be seized, and

because Smith suffered no prejudice from the Government’s failure to comply with Rule

12(b)(4)(B), we will affirm the District Court’s decision in all respects.

                                              I.

       In late 2004 the Williamsport (Pa.) Police Department learned from a confidential

informant (CI) that Smith and his girlfriend Jessica Heddings had been selling cocaine

and crack by the ounce from their shared home at 205 West Houston Avenue (205 West

Houston) in Montgomery, Pennsylvania. (See Joint Appendix (JA) 79 (June 13, 2006

Supp. Hr’g at 7).) The Williamsport police teamed up with DEA Special Agent Joseph

Begley to investigate Smith and Heddings. On January 5, 2005, Begley summarized the

fruits of this investigation in an affidavit, submitted as part of a search warrant

application for 205 West Houston. (See JA 51-55 (Begley Aff.).)

       According to the affidavit, the CI told investigators that Smith and Heddings

arranged drug transactions from 205 West Houston. (JA 52 (Id. ¶ 7).) The CI also

reported that he personally had been buying cocaine and crack from Smith and Heddings

for three to four months. (JA 53 (Id. ¶ 8).) The CI claimed to have purchased drugs from

Smith at 205 West Houston on at least five occasions. (Id.) Each time, the CI was made

to wait downstairs while Smith or Heddings retrieved the drugs from upstairs. (Id.)



                                               2
       The affidavit also described how investigators arranged for the CI to make two

controlled purchases of cocaine from Smith and Heddings, and that each transaction

began at 205 West Houston. At about 4:00 p.m. on December 30, 2004, officers saw

Heddings arrive at 205 West Houston in a silver Dodge Durango. The CI then phoned

Smith and asked to buy cocaine. (JA 53 (Id. ¶ 10).) Smith said he was at home, getting

dressed, and would call the CI when he left the house. (Id.) At about 5:45 p.m., the

police saw Heddings and Smith leave 205 West Houston in the silver Durango. (Id.) Ten

minutes later, Smith called the CI from the truck and arranged a meeting. (Id.) When the

parties arrived at the meeting place, Smith got out of the Durango, gave the CI an ounce

of cocaine in exchange for marked money, got back in the Durango, and Heddings drove

off with Smith as a passenger. (JA 54 (Id. ¶ 11).)

       On January 3, 2005, the CI completed another drug transaction with marked

money, this time with Heddings alone. (JA 54 (Id. ¶ 14).) The CI called Heddings at

about 11:20 a.m., and she told him that she was heading into Williamsport later that day

to do her laundry, and that she would call him when she got into town. (Id.) She did and

the police observed her giving the CI an ounce of cocaine at the laundromat. (Id.)

       On January 5, 2005, a Magistrate Judge signed a search warrant for 205 West

Houston based largely on Agent Begley’s affidavit. (JA 56-66 (Search Warrant).) The

DEA and the Lycoming County Drug Task Force executed the search warrant the next

day. They seized cocaine and marijuana (JA 88-89 (June 13, 2006 Sup. Hr’g at 16-17)),



                                             3
material consistent with retail trafficking in cocaine (JA 89 (id. at 17)), records indicating

that Smith and Heddings lived in the house (JA 91 (id. at 19)), and $2,225 in cash (JA

111 (id. at 39)).

       Based on the results of the search, and the controlled purchases by the CI, a grand

jury indicted Smith on January 13, 2005, charging him with three counts of cocaine

distribution and one count of conspiracy to distribute cocaine.1 At his arraignment on

February 11, 2005, Smith pled not guilty. Smith thought that the warrant was

unsupported by probable cause, and so intended to seek suppression of the search’s fruits.

       Accordingly, on February 16, 2005, he filed a motion pursuant to Federal Rule of

Criminal Procedure 12(b)(4)(B) requesting that the Government notify him of the

evidence it intended to use at trial that would be subject to possible suppression. The

Government never responded to the motion, although it did provide Smith with discovery,

including police reports, the search warrant, and other investigative materials.

       On April 25, 2006 – after waiting over 14 months, and still without a response

from the Government on his Rule 12(b)(4)(B) motion – Smith filed a motion to suppress

with the District Court.2 (JA 67-72.) The District Court heard argument on the



       1
        On June 21, 2006, a grand jury returned a superseding indictment which added
counts five and six: use of a communication facility in furtherance of a felony and
renting a place for the purpose of cocaine distribution, respectively. (JA 41-45
(Superseding Indictment).)
       2
       The Government finally filed its Notice of Intent to Use Evidence Pursuant to
Rule 12(b)(4) on May 31, 2006 – over a month after Smith filed his suppression motion.

                                              4
suppression motion on June 13, 2006 (JA 73-119), and denied it on July 12, 2006 (JA 9-

27).

       With his suppression motion denied, Smith decided to change his plea, and on

October 10, 2006, pled guilty to Count Five (use of a communication facility in

furtherance of a felony), conditioned on his right to appeal from the denied suppression

motion. A probation officer prepared a Presentence Report, which concluded that Smith

had an offense level of 15 and a criminal history category of VI, corresponding to an

advisory guidelines incarceration range of 41-51 months.

       On March 27, 2007, the District Court sentenced Smith to 46 months in prison.

This appeal followed.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

       Smith preserved his suppression argument (see Oct. 10, 2006 Conditional Plea

Agmt.; JA 67-73 (Mot. to Supp.)), and so we review the District Court’s factual

determinations for clear error and exercise plenary review over the application of the law

to those facts. See United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005). A

finding is clearly erroneous “when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has

been committed.” United States v. Pelullo, 173 F.3d 131, 135 (3d Cir. 1999) (quoting



                                              5
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Accordingly,

“[i]f the district court’s account of the evidence is plausible in light of the record viewed

in its entirety,” we will not reverse it even if we would have weighed the evidence

differently. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).

                                              III.

                                              A.

       Smith’s challenge to the search warrant fails. Probable cause exists if, under “the

totality-of-the-circumstances . . . the issuing magistrate [makes the] practical, common-

sense decision [that], given all the circumstances set forth in the affidavit before him . . .

there is a fair probability that contraband or evidence of a crime will be found in a

particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Direct evidence of a crime

is not necessary in all cases: “it is well established that direct evidence is not required for

the issuance of a search warrant. Instead, probable cause can be, and often is, inferred by

considering the type of crime, the nature of the items sought, the suspect’s opportunity for

concealment and normal inferences about where a criminal might” keep the objects of the

search. United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993).

       The affidavit Smith challenges meets this standard easily. The two controlled buys

described in Agent Begley’s affidavit established probable cause to believe that Smith

kept drugs at 205 West Houston in two ways. First, Smith and/or Heddings initiated both

sales from 205 West Houston. In the December 30 transaction, Smith was at home when



                                               6
Heddings returned to 205 West Houston from work. Smith and Heddings then drove

directly from 205 West Houston to the meeting location and gave the CI an ounce of

cocaine. From this sequence of events, it is reasonable to infer that the ounce of cocaine

had been at 205 West Houston. Next, the January 3, 2005 purchase was consummated at

a laundromat. Heddings carried two things with her to the cleaners that day: her

domestic laundry, and an ounce of cocaine. It is a reasonable inference, of course, that

one keeps laundry at one’s home. Heddings was coming from the same place with the

cocaine as she did with the laundry. This raised a “fair probability” that the drugs, too,

came from 205 West Houston. Accordingly, both transactions had strong connections to

205 West Houston, and created probable cause to believe that drugs would be found

there.

         Second, both transactions conformed precisely with the CI’s description of Smith’s

drug operation. Therefore, the Magistrate Judge could infer properly that one more piece

of information from the CI, included in the warrant application, was also correct: that

Smith stored his drugs at 205 West Houston. Because the controlled purchases both had

connections to 205 West Houston and corroborated the CI’s information, the District

Court did not err in holding that probable cause supported the warrant application.

                                             B.

         Smith also seeks suppression of the evidence found during the January 6, 2005

search as a sanction for the Government’s conceded violation of Federal Rule of Criminal



                                              7
Procedure 12(b)(4)(B). Pursuant to Rule 12(b)(4)(B), “the defendant may, in order to

have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice

of the Government’s intent to use (in its evidence-in-chief at trial) any evidence that the

defendant may be entitled to discover under Rule 16.” F ED. R. C RIM. P. 12(b)(4)(B).3

       The Rule has at least three salutary effects: First, it streamlines the suppression

process because the defendant can avoid moving to suppress evidence the Government

does not intend to use. See 1A C HARLES A LAN W RIGHT, F EDERAL P RACTICE &

P ROCEDURE § 197 (2007); see also, e.g., United States v. de la Cruz-Paulino, 61 F.3d 986,

993-94 (1st Cir. 1995); United States v. Anderson, 416 F. Supp. 2d 110, 112 (D.D.C.

2006). Second, and flowing from the first benefit, Rule 12(b)(4)(B) helps “preserve[] the

integrity of a trial by not interrupting it with suppression motions.” Cruz-Paulino, 61 F.3d

at 994. Third, Rule 12(b)(4)(B) assists the Government by assuring it that its evidence-in-

chief is admissible, and thus lessening the possibility of a mistrial or reversal on appeal

through use of tainted evidence. See F ED R. C RIM. P. 12(d) 1975 advisory comm. note.

       Smith filed his motion for Rule 12(b)(4)(B) on February 17, 2005. (JA 31 (Docket

Entry No. 52).) The Government never responded. On March 18, 2005, however, the

Government provided Smith with 53 pages of Rule 16 discovery, including police reports

and the search warrant. After waiting more than fourteen months for a response to his

Rule 12(b)(4)(B) motion, Smith filed his motion to suppress on April 25, 2006. (JA 33



       3
           The 2002 amendments replaced the former Rule 12(d)(2) with Rule 12(b)(4)(B).

                                              8
(Docket Entry No. 95).) The District Court then proceeded with admirable dispatch,

holding a hearing on the suppression motion and issuing a written opinion denying the

motion within three months. (See JA 9-27 (July 12, 2006 Op.).)

       The court declined to impose the “draconian sanction” of suppression for the

Government’s failure to comply with the Rules because, it held, Smith received adequate

discovery in March 2005 and therefore did not suffer any prejudice. The District Court

admonished the Government, however, noting that “we do not condone what in our

experience has been a fairly prevalent practice of unresponsiveness on the part of

particular United States Attorneys in this district relating to defendants[’] requests under

Rule 12.” (JA 19 (July 12, 2006 Op. at 11).) The Government’s behavior was

“negligent,” and unfortunately consistent with “piecemeal disclosure in other cases on our

docket,” which “violate[s] at least the spirit, if not the letter, of Rule 12.” 4 (Id.)

       On appeal, Smith concedes that a request for suppression based on the Rule

12(b)(4)(B) violation is “an unusual request for relief,” but argues that it is appropriate

because of the “studied practice” of the U.S. Attorney’s Office “to totally ignore requests

for information pursuant to Rule 12(b)(4)(B).” (Smith Br. at 10, 11.) Smith contends that

the District Court’s holding “stands the Rule 12 notice provision on its head,” because it



       4
        We note that the Federal Rules are a complex, interlocking mechanism. There is
no superfluous Rule. And even if there were, government attorneys, as officers of the
Court, may not disregard the Rules they find burdensome or duplicative. All parties in
our system of justice must abide by the Rules as established by the Supreme Court of the
United States.

                                                9
renders Rule 12(b)(4)(B) superfluous: the wholesale provision of Rule 16 information

does not fulfill the plain terms of Rule 12(b)(4)(B), which requires more than documents

themselves – it requires the Government to affirmatively notify a defendant of what Rule

16 evidence the Government intends to rely upon in its case-in-chief. (Id. at 11.) Smith

concludes that “[f]or every rule which is broken there has to be negative consequence for

the rule breaker.” (Id. at 14.)

       The Government characterizes its behavior as an “alleged delay” in its response

and an “alleged failure” to comply with Rule 12(b)(4)(B)’s obligations. (Gov’t Br. at 20.)

The Government also claims that it did not violate the “spirit” of Rule 12(b)(4)(B)

because it provided Smith with Rule 16 discovery: “Since the Government complied with

Rule 16 at the outset in this case . . . there simply [is] no basis for arguing that a material

breach of these discovery rules has occurred.” (Id. at 21-22). But, even assuming that it

did violate Rule 12, the Government contends, Smith did not demonstrate prejudice

flowing from the breach, and thus should not obtain suppression of the evidence seized

from 205 West Houston.

       Because Rule 12(b)(4)(B) is “a matter of procedure, rather than a rule designed to

ensure fairness at trial,” the Rule did not build in an automatic sanction mechanism.

Cruz-Paulino, 61 F.3d at 994; see also F ED. R. C IV. P. 12(d)(2) 1975 advisory comm. note

(“No sanction is provided for the government’s failure to comply with the court’s order

because the committee believes that attorneys for the government will in fact comply and



                                               10
that judges have ways of insuring compliance.”). We have never considered the proper

remedy for a violation of Rule 12(b)(4)(B). Every Circuit that has addressed the issue,

however, requires a defendant to demonstrate prejudice or bad faith before excluding

evidence as a sanction. See United States v. Barry, 133 F.3d 580, 582 (8th Cir. 1998)

(upholding refusal to suppress where no bad faith or prejudice shown); Cruz-Paulino, 61

F.3d at 995 (while “mak[ing] clear that we do not condone governmental violations” of

Rule 12(b)(4)(B), holding that “reversal is not mandated because [the defendant] suffered

no prejudice” and did not demonstrate Governmental bad faith); United States v.

Valencia, 656 F.2d 412, 414-16 (9th Cir. 1981) (where suppression hearing held, and no

prejudice shown, suppression not warranted).

       Although we agree with Smith that the simple provision of Rule 16 discovery does

not satisfy the plain terms of Rule 12(b)(4)(B), we will follow our sister Circuits and

require prejudice or bad faith before excluding evidence as a sanction for a Rule

12(b)(4)(B) violation. Applying this standard here, it is clear that Smith suffered no

prejudice and has not demonstrated bad faith by the Government. Although the

Government did not tell Smith what evidence it would seek to introduce at trial, in this

case it was obvious: Smith’s suppression motion would stand or fall on the sufficiency of

the warrant, and more specifically on whether Agent Begley’s affidavit established

probable cause to believe that cocaine was to be found at 205 West Houston. The

Government provided Smith with the warrant as part of its March 2005 document



                                             11
production. This production also included police reports, which presumably listed the

items seized from 205 West Houston during the January 6, 2005 execution of the search

warrant. Smith does not contend that the March 2005 document production omitted any

documents essential for his suppression motion. Because he made his suppression

motion, and based it on full information, Smith suffered no prejudice. Moreover, while

the U.S. Attorney’s “practice of unresponsiveness” referenced by the District Court could

conceivably rise to the level of bad faith, Smith does not provide any explicit evidence of

such bad faith, and we are thus inclined to agree with the District Court’s conclusion that

the Government has simply been negligent in conducting its affairs.

                                            IV.

       For the foregoing reasons, we will affirm the decision of the District Court in all

respects.




                                             12
