                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 01 2012

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30364

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00024-RSM-1

  v.
                                                 MEMORANDUM *
MICHAEL A. JOHNSON,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                      Argued and Submitted February 6, 2012
                               Seattle, Washington

Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.

       Michael A. Johnson appeals from his conviction and sentence for

(1) conspiracy to distribute fifty grams or more of actual methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; (2) possession of five

grams or more of actual methamphetamine with intent to distribute, in violation of



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. §2; (3) felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2); and (4) felon in

possession of explosives, in violation of 18 U.S.C. §§ 842(i)(1) and 844(a).

Johnson contends the district court erred in denying his motion to suppress,

motion for a new trial or to arrest judgment, and motion to strike the 21 U.S.C.

§ 851 enhanced penalty information, as well as in limiting defense counsel’s cross-

examination of Charles Beedle and Detective Nicole Richardson. We affirm

because we conclude that the district court did not err.

                                           I

      Johnson challenges the district court’s denial of his motion to suppress on

the ground that there was not probable cause to issue the search warrant. Johnson

also contends that the warrant lacked sufficient particularity and the search of his

residential unit exceeded the scope of the warrant. We review a district court’s

denial of a motion to suppress de novo and its factual findings for clear error.

United States v. Gorman, 314 F.3d 1105, 1110 (9th Cir. 2002). We review a

magistrate’s finding of probable cause to issue a search warrant for clear error “and

give ‘great deference’ to such a finding.” United States v. Hill, 459 F.3d 966, 970

(9th Cir. 2006) (quoting United States v. Hay, 231 F.3d 630, 634 n.4 (9th Cir.

2000)).


                                           2
                                            A

      When reviewing a magistrate’s issuance of a search warrant, we have

previously explained that magistrates are “entitled to draw reasonable inferences

about where evidence is likely to be kept, based on the nature of the evidence and

the type of offense. In the case of drug dealers, evidence is likely to be found

where the dealers live.” United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th

Cir. 1986) (citations omitted); United States v. Foster, 711 F.2d 871, 879 (9th Cir.

1983) (rejecting probable cause challenge to search warrant for residence of

lieutenant in drug organization). Indeed, we have upheld search warrants against

probable cause challenges based, in part, on evidence showing that members of a

drug trafficking organization frequented the defendant’s residence. United States

v. Garcia-Villalba, 585 F.3d 1223, 1234 (9th Cir. 2009).

      Here, the application for the search warrant for 135 South Ann Street,

Monroe, Washington was supported by probable cause. Detective Corey

Williams’s affidavit described several incidents in which Christopher Jeter was

seen with members of the Barajas Garcia organization in connection with drug

trafficking. Detective Williams also identified Jeter as the primary resident of the

house located at 135 South Ann. As the district court recognized, “[t]he fact that

Mr. Jeter lived there . . . is sufficient at that point in time, knowing he is involved


                                            3
in numerous instances of illegal drug dealing, for the magistrate judge to conclude

that a fair probability existed that evidence . . . could be found in that particular

area.” Transcript of Hearing at 124-25, United States v. Johnson, No. 2:10-CR-

00024-RSM-1 (W.D. Wash. May 4, 2010), ECF No. 97.

      Detective Williams’s affidavit showed that members of the Barajas Garcia

organization visited the property located at 135 South Ann on several occasions in

connection with drug trafficking. Indeed, Detective Williams described

intercepted telephone calls, in which it appeared that members of the organization

conducted criminal activity on the premises. For example, during two separate

intercepted telephone calls (1) Candido Hernandez told Barajas Garcia he had the

“papers” (i.e., money), to call him, and that he was at the “recycling,” which

officers believed referred to the house at 135 South Ann; and (2) Hernandez

discussed drug proceeds with Barajas Garcia, told him that he was at the

“recycler,” and that Barajas Garcia could come into the house when he arrived.

                                            B

      Johnson characterizes his challenge based on the division of the house into

two separate living units as a particularity challenge. Relevant case law, however,

distinguishes challenges to the validity of a search warrant based on a lack of

particularity in the description of the premises to be searched from challenges to


                                            4
the reasonableness of law enforcement’s execution of a search warrant. Maryland

v. Garrison, 480 U.S. 79, 84 (1987). Indeed, in Garrison, the United States

Supreme Court described these two challenges as presenting “two separate

constitutional issues, one concerning the validity of the warrant and the other

concerning the reasonableness of the manner in which it was executed.” Id.

      Johnson argues that the search warrant lacked sufficient particularity

because it described the house on 135 South Ann as a single-family residence.

      The Fourth Amendment requires that “no Warrants shall issue” except, inter

alia, those “particularly describing the place to be searched.” U.S. Const. amend.

IV. We have set forth the following test for determining whether a warrant

satisfies the particularity requirement:

             [W]hether the warrant describes the place to be searched
             with “sufficient particularity to enable law enforcement
             officers to locate and identify the premises with
             reasonable effort,” and whether any reasonable
             probability exists that the officers may mistakenly search
             another premise.

United States v. Mann, 389 F.3d 869, 876 (9th Cir. 2004) (quoting United States v.

Turner, 770 F.2d 1508, 1510 (9th Cir. 1985)).

      A search warrant that contains a mistake in the description of the premises to

be searched is not automatically invalid. See Garrison, 480 U.S. at 83 n.3, 85–86



                                           5
(rejecting invalidity argument despite warrant’s broad description of search target

as “third floor apartment” where there were two separate third floor apartments).

Such a warrant may survive a particularity challenge if it describes the premises as

they were known or should have been known to officers, at the time of the

application for the warrant. Id. at 85; see Mena v. City of Simi Valley, 226 F.3d

1031, 1036–37 (9th Cir. 2000) (relying on Garrison and stating that there was no

evidence that officers knew or should have known prior to the application for the

search warrant that the residence was a multi-unit dwelling). Indeed, “the

discovery of facts demonstrating that a valid warrant was unnecessarily broad does

not retroactively invalidate the warrant. The validity of the warrant must be

assessed on the basis of the information that the officers disclosed, or had a duty to

discover and to disclose, to the issuing Magistrate.” Garrison, 480 U.S. at 85.

      Here, the application for the search warrant and the warrant itself contained

sufficient facts to satisfy the particularity requirement even though it described the

house as a single-family residence because there is no evidence that officers knew

or should have known that the house contained two separate residential units.

From the outside, the house appeared to be a single-family residence: officers

believed there was a single front door, did not know that the house was divided,




                                           6
and had confirmed that the utilities were registered to one person, Jeter. As the

district court recognized, there was no separate address.

      In addition, the warrant contained a detailed description of the premises to

be searched. The warrant described the location of the property. It also identified

key features of the house, such as the color and type of construction of the house

and the trim and siding on the house.

                                           C

      Johnson contends that the search was overbroad because officers were

required to suspend the search of his residential unit when they discovered that the

house was divided into two separate apartments. “Police officers’ authority to

search premises that are described in a warrant is not unlimited.” Mena, 226 F.3d

at 1038. “Generally, if a structure is divided into more than one occupancy unit,

probable cause must exist for each unit to be searched.” Id. (citing United States v.

Whitney, 633 F.2d 902, 907 (9th Cir. 1980)).

      “‘If, during the search, the officers become aware that the warrant describes

multiple residences, the officers must confine their search to the residence of the

suspect.’” Id. (quoting United States v. Kyles, 40 F.3d 519, 524 (2d Cir. 1994)).

Indeed, officers are “required to discontinue the search . . . as soon as they

discover[] that there [are] two separate units . . . and therefore [are] put on notice of


                                            7
the risk that they might be in a unit erroneously included within the terms of the

warrant.” Garrison, 480 U.S. at 87.

      The general rule requiring probable cause for each unit does not apply when

the entire house is suspect. See, e.g., United States v. Gilman, 684 F.2d 616, 618

(9th Cir. 1982) (stating that “general rule voiding the warrant for an undisclosed

multi[-]unit structure does not apply if the defendant was in control of the whole

premises or they were occupied in common, if the entire premises were suspect, or

if the multi[-]unit character of the premises was not known to the officers” (citation

omitted)); Whitney, 633 F.2d at 907 (recognizing that the rule requiring probable

cause as to individual units “would not apply if ‘the entire building is actually

being used as a single unit’” (quoting United States v. Hinton, 219 F.2d 324, 326

(7th Cir. 1955))).

      Detective Williams’s affidavit in support of the application for the search

warrant showed that the entire house was suspect because it was used to sell and

store methamphetamine. His affidavit explained that surveillance showed that

members of the Barajas Garcia organization had visited the residence on several

occasions and appeared to have free access to the residence. Intercepted telephone

calls also revealed that a member of the organization visited the residence in




                                           8
connection with discussing and distributing the proceeds of methamphetamine

sales.

                                            II

         Johnson contends the district court’s limitation on the cross-examination of

Beedle and Detective Richardson violated his rights under the Confrontation

Clause. We review de novo a defendant’s Confrontation Clause challenge based

on the exclusion of an area of inquiry. United States v. Larson, 495 F.3d 1094,

1101 (9th Cir. 2007). We review for abuse of discretion a district court’s

limitations on the scope of questioning within a given area. Id.

         “The Confrontation Clause of the Sixth Amendment secures a defendant’s

right to cross-examine government witnesses.” United States v. Adamson, 291

F.3d 606, 612 (9th Cir. 2002). “The constitutional right to cross examine is

‘[s]ubject always to the broad discretion of a trial judge to preclude repetitive and

unduly harassing interrogation . . . .’” United States v. Schoneberg, 396 F.3d 1036,

1042 (9th Cir. 2005) (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)). A court,

however, “cannot preclude a defendant from asking, not only ‘whether [the

witness] was biased’ but also ‘to make a record from which to argue why [the

witness] might have been biased.’” Id. (quoting Davis, 415 U.S. at 318 (emphasis

added)).


                                            9
                                         A

      Johnson contends that the district court erred by limiting the scope of the

cross-examination of Beedle regarding his understanding, based on sources other

than his attorney, of the enhanced penalty he would have faced had he not

cooperated with the Government. According to Johnson, had the district court

allowed this line of questioning, he would have shown that Beedle knew that he

faced a twenty-year mandatory minimum sentence under the enhanced penalty.

      While the proposed line of questioning may have been relevant to show

whether and why Beedle was biased, it was repetitive because Beedle had already

testified repeatedly that he lacked an understanding of the precise term he would

have faced under the enhanced penalty. The jury had sufficient information to

assess Beedle’s credibility. On direct examination, Beedle revealed he had a

substance abuse problem with methamphetamine and marijuana, sold drugs, and

was cooperating with the Government in hopes of receiving a reduced sentence.

During defense counsel’s initial cross-examination, Beedle also admitted that he

had lied during direct examination, lied to agents about the identity and “back

story” of the woman with whom he visited Johnson to buy drugs, lied on monthly

probation reports regarding his drug use, and admitted he knew that, absent

cooperation, he faced a ten-year mandatory minimum sentence on his most recent


                                         10
drug charge. Moreover, during further cross-examination, Beedle also admitted he

knew that, had he not cooperated, he would have faced an enhanced penalty.

Therefore, Johnson has failed to demonstrate that the district court abused its

discretion in limiting the scope of the cross-examination of Beedle.

                                           B

      Johnson also contends that the district court erred by limiting the scope of

the cross-examination of Detective Richardson regarding her conversation with

Jeter on October 20, 2009. Johnson argues that the district court should have

admitted Detective Richardson’s notes into evidence because they were offered to

show her state of mind, not for their truth.

      Johnson has not shown that the district court abused its discretion by

refusing to admit Detective Richardson’s notes to show her state of mind. Indeed,

Johnson has not explained how exclusion of the notes limited the scope of his

cross-examination of Detective Richardson regarding her state of mind. The

record shows that Johnson was not precluded from questioning Detective

Richardson about Jeter.

                                          III

      Johnson contends the district court erred when it denied his motion for new

trial or to arrest judgment. We review for abuse of discretion a district court’s


                                           11
denial of a motion for new trial or to arrest judgment. United States v. Moses, 496

F.3d 984, 987 (9th Cir. 2007); United States v. Rodriguez, 360 F.3d 949, 955 (9th

Cir. 2004).

                                           A

      Johnson contends that the prosecutor’s decision to charge him separately

from the underlying conspiracy violated his right to due process by preventing him

from presenting evidence supporting his theory that Jeter “set him up.”

      “Whether to prosecute and what charge to file or bring before a grand jury

are decisions that generally rest in the prosecutor’s discretion.” United States v.

Batchelder, 442 U.S. 114, 124 (1979); see, e.g., United States v. Armstrong, 517

U.S. 456, 464 (1996) (explaining that charging decisions are left to the discretion

of the prosecutor subject to the limitation that such decisions cannot be based on

“‘an unjustifiable standard such as race, religion, or other arbitrary classification’”

(quoting Oyler v. Boles, 368 U.S. 448, 456 (1962))). A prosecutor may, but is not

required to, charge two or more defendants in a single indictment if “they are

alleged to have participated in the same act or transaction, or in the same series of

acts or transactions, constituting an offense or offenses.” Fed. R. Crim. P. 8(b).

      Here, Johnson has not shown that the Government’s decision to charge him

separately from the underlying conspiracy was an improper exercise of the


                                           12
prosecutor’s discretion or that it denied him his due process right to a meaningful

opportunity to present a complete defense. Johnson has not pointed to any

evidence suggesting that the prosecutor’s charging decision was motivated by bad

faith or discrimination.

                                          B

      Johnson contends further that law enforcement mishandled the firearms

found during the search of Johnson’s residential unit and failed to preserve

potential fingerprints. Johnson also contends that law enforcement failed to record

details of the search. According to Johnson, this prevented him from presenting

his defense that others, including Jeter, handled the weapons and had access to the

area where the items were found.

      In order for the loss or destruction of evidence to constitute a due process

violation, the evidence must “[1] possess an exculpatory value that was apparent

before the evidence was destroyed, and [2] be of such a nature that the defendant

would be unable to obtain comparable evidence by other reasonably available

means.” California v. Trombetta, 467 U.S. 479, 489 (1984). In Arizona v.

Youngblood, 488 U.S. 51 (1988), the United States Supreme Court held that where

lost or destroyed evidence is “only potentially exculpatory, as opposed to

apparently exculpatory, the defendant must show that the evidence was destroyed


                                         13
in bad faith.” United States v. Estrada, 453 F.3d 1208, 1212 (9th Cir. 2006) (citing

Youngblood, 488 U.S. at 58).

      Here, Johnson has not shown that the potential fingerprint evidence on the

weapons found during the search of his residential unit was “apparently

exculpatory” nor has he shown bad faith. Johnson merely speculates that other

individuals’ fingerprints may have been found on the weapons, but has not pointed

to any evidence that officers intentionally mishandled the weapons.

      As for Johnson’s contention that officers failed to record the details of the

search, he has similarly not shown bad faith. Although somewhat unclear, Johnson

suggests that the Government’s failure to introduce the testimony of Special Agent

Kyle Bowen, who oversaw the search, was improper. Johnson, however, has not

explained how the Government’s failure to call this witness lead to a denial of his

due process rights nor how it demonstrates bad faith.

                                          C

      Johnson contends that, during rebuttal argument, the Government

misrepresented Beedle’s testimony by stating that Beedle testified that he had

purchased four ounces of methamphetamine from Johnson shortly before the

search of 135 South Ann. According to Johnson, this misrepresented Beedle’s




                                          14
testimony, which was that he couldn’t “quite remember” but thought he purchased

“three to four ounces.”

      It is well established that “it is improper for the government to present to the

jury statements or inferences it knows to be false or has very strong reason to

doubt.” United States v. Reyes, 577 F.3d 1069, 1077 (9th Cir. 2009) (citing United

States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002)). Not all misstatements by a

prosecutor during a trial, however, require reversal. See, e.g., United States v.

Kojayan, 8 F.3d 1315, 1318 (9th Cir. 1993) (“Words uttered spontaneously

sometimes come out wrong; the exigencies of trial may make it hard to consider all

the implications of a particular assertion. The mere fact of a misstatement to the

jury therefore isn’t the end of the matter.”). Indeed, technical or insignificant

misstatements are often disregarded. See United States v. Hudson, 432 F.2d 413,

414 (9th Cir. 1970) (per curiam) (rejecting defendant’s contention that court should

reverse his conviction because the prosecutor misstated trial testimony). In order

to obtain a new trial based on a prosecutor’s misstatement to the jury, the

defendant must show “both misconduct and prejudice.” United States v. Wright,

625 F.3d 583, 609-10 (9th Cir. 2010).

      Here, Johnson has not shown that the prosecutor’s statements during rebuttal

argument constituted misconduct resulting in prejudice. There is no evidence that


                                           15
the statement was intentionally false. Johnson has also not explained how he was

prejudiced by this statement.

                                           IV

      Johnson contends that the prosecution’s decision to file a § 851 enhanced

penalty information after Johnson rejected a plea offer constitutes vindictive

prosecution and deprived him of due process. We review a defendant’s claim of

prosecutorial vindictiveness and denial of due process de novo. United States v .

Jenkins, 504 F.3d 694, 699 (9th Cir. 2007).

      Johnson cannot rely on the filing of the § 851 enhanced penalty information

following failed plea negotiations, alone, to establish actual or presumptive

vindictiveness. We recently held in United States v. Kent, 649 F.3d 906 (9th Cir.),

cert. denied, 132 S. Ct. 355 (2011), that “[a]s a matter of law, the filing of

additional charges to make good on a plea bargaining threat . . . will not establish

the requisite punitive motive . . . .” Id. at 914; see also Bordenkircher v. Hayes,

434 U.S. 357, 363-65 (1978) (rejecting prosecutorial vindictiveness claim despite

prosecutor’s concession that threat of additional charges was intended to influence

defendant to plead guilty).

      AFFIRMED.




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