
USCA1 Opinion

	




          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          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          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.                    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
