                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 97-3813
                                 ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *   Appeals from the United States
      v.                               *   District Court for the Southern
                                       *   District of Iowa.
Romaine Dukes,                         *
                                       *
            Appellant.                 *

                                 ___________

                                 No. 97-4047
                                 ___________

United States of America,             *
                                      *
            Appellant,                *
                                      *
      v.                              *
                                      *
Adolphus Archibald Mullings,          *
                                      *
            Appellee.                 *
                                 ___________

                               Submitted: June 9, 1998
                                   Filed: July 16, 1998
                                 ___________

Before FAGG, BRIGHT, and BEAM, Circuit Judges.
                                    ___________

BEAM, Circuit Judge.

        Romaine Dukes and Adolphus Archibald Mullings were named in a superseding
indictment charging them with several drug crimes. Mullings was charged as follows:
count 1—conspiracy to distribute and possess with intent to distribute cocaine base in
violation of 21 U.S.C. § 846, and counts 2 through 7—distribution of Schedule II
controlled substance, cocaine base, in violation of 21 U.S.C. § 841(a)(1). Dukes was
charged in counts 1, 6 and 7. A motion to sever was denied and they were tried
together before a jury.

     Mullings was found guilty of all counts except for the offense charged in count
2. Dukes was found guilty of all three charged counts.

      The district court, finding Mullings qualified for the so-called "safety valve"
provision found at section 5C1.2 of the United States Sentencing Guidelines and 18
U.S.C. § 3553(f), imposed a sentence of 132 months' imprisonment plus ten years'
supervised release. Dukes was sentenced to life imprisonment plus ten years of
supervised release.

       Dukes appeals his conviction and sentence and the United States appeals the
safety valve sentence imposed upon Mullings. We affirm.

I.    BACKGROUND

       The Iowa Division of Narcotics Enforcement (IDNE) received information
concerning drug trafficking in the Davenport, Iowa, area. Arrangements were made for
a confidential informant (CI) and IDNE officers to purchase, in controlled buys, cocaine
base (crack) from various individuals including Mullings. At least two relevant


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purchases were observed by IDNE agents who spoke directly with Mullings at the time.
Officers of the Quad Cities Metropolitan [Drug] Enforcement Group (MEG) were also
enlisted to assist in the investigation. Eventually, Dukes was observed and later
identified as a participant in the drug transactions being carried out between Mullings,
the CI, and the law enforcement agents. These transactions included transfers that
occurred on December 17, 1996, and January 7, 1997, at the West Campus of the
Genesis Hospital in Davenport. After the January 7, 1997, interchange, Mullings was
arrested following a short foot chase. Although at or near the hospital at the time,
Dukes managed to escape from the vicinity and was later arrested in Chicago. Other
more specific facts necessary for a discussion of the issues will be included as needed.

II.   DISCUSSION

      A.     Dukes

       Dukes asserts that a judgment of acquittal or a new trial should be ordered. He
claims that (1) trial testimony concerning a confession by codefendant Mullings
improperly incriminated him in violation of the confrontation clause of the Sixth
Amendment; (2) the government knowingly presented false testimony, inconsistent
theories of guilt and improper jury arguments; (3) his due process was violated by the
introduction of unreliable identification testimony; (4) the court erred in not suppressing
evidence from an apartment search conducted with a warrant obtained after presentation
of an affidavit containing recklessly false information; (5) there was insufficient
evidence to convict; (6) the court erred in admitting into evidence a firearm found in his
apartment because its probative value was outweighed by its unfairly prejudicial effect;
(7) the court erred in failing to grant a new trial because the verdict was against the
weight of the evidence; and (8) the court erred in counting a prior conviction in
assessing his sentence.




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       As a result of an injury incurred in the course of his arrest, Mullings was
hospitalized at the West Genesis facility. During this inpatient treatment time, Mullings
gave a statement to the police that implicated both himself and Dukes. However,
Mullings did not testify at the trial.

       Dukes raised objections to the use of inculpatory information concerning his
participation in the charged offenses contained in Mullings's communications to IDNE
and MEG officers. The objections were based, at least in part, on confrontation clause
limitations established by Bruton v. United States, 391 U.S. 123 (1968). For various
reasons, the objections were sustained and the trial court disallowed government use of
the Mullings statement at trial.

        The Mullings confession contained references to Dukes's use of the street name
"Chip." Mullings, while at the hospital, consented to the search of his apartment. This
search produced a slip of paper containing the name Chip. One of the IDNE officers
testified that the paper was found in the search and that it was seized because the officer
was aware that Mullings's source of supply was a person called Chip. Dukes claims this
testimony was a violation of Bruton because, in his view, the jury must have concluded
that this information came from Mullings's confession. However, other witnesses
established Dukes's usage of the name. Indeed, there was testimony from the same
officer that his source of information about a person known as Chip being Mullings's
source of supply emanated from a trial witness who had transported Chip (Dukes) to the
hospital on the afternoon of January 7. Given this testimony and other trial evidence
linking Dukes to the street name of Chip, we fail to see a Bruton violation.

      A search warrant for Dukes's apartment was issued by a state magistrate judge
based upon an affidavit now challenged by appellant. The issuing judge also received
sworn testimony from a MEG agent who testified that he had obtained the apartment
address from Dukes's girlfriend. A statement in the affidavit indicated that a vehicle


                                           -4-
registered to Dukes was seen at the last two purchases of drugs from Mullings. This
automobile information was admittedly false, but, according to the government, not
recklessly false, since Dukes was seen at the last two purchases and his car was seen
at a November 26, 1996, sale. The government claims that this was nothing more than
a modestly negligent mistake made by the attesting officer. Dukes also claims that the
woman supplying the address was not his "girlfriend" in the usual sense. Although the
friend was apparently not a person with whom Dukes had an intimate relationship, she
was, without dispute, a woman and a friend.

      Franks v. Delaware, the seminal case on the effect of the use of false information
in a search warrant affidavit, requires a challenger of a warrant to show (1) that the
affidavit contained false statements; (2) that the statements were material to the issue
of probable cause; and (3) that the false statements were made knowingly and
intentionally or with reckless disregard for the truth. 438 U.S. 154, 171-72 (1978).
Dukes's attack on the constitutionality of the search warrant fails on two grounds. First,
even discounting the allegedly false statements, the affidavit was more than sufficient
to establish probable cause to search. Second, the "girlfriend" reference was not false
and the automobile reference was both immaterial and certainly not intentionally or
recklessly advanced under all the facts. Thus, this challenge fails.

      As noted, Dukes advances several additional challenges. We have examined
each of them carefully in light of the record and the prevailing law of this circuit. Upon
so doing, we find them to be without merit.

      B.     Mullings

       The government contends that the district court erred in concluding that Mullings
qualified for the so-called safety valve provision somewhat recently added to the United
States Sentencing Guidelines. In this regard, the United States claims that


                                           -5-
Mullings did not provide a complete and truthful statement concerning the offenses and
that attempts to question him after his arrest were thwarted.

      Section 5C1.2 provides that the court will impose the applicable guidelines
sentence, without regard to any statutory minimum, if

      not later than the time of the sentencing hearing, the defendant has
      truthfully provided to the Government all information and evidence the
      defendant has concerning the offense or offenses that were part of the
      same course of conduct or of a common scheme or plan, but the fact that
      the defendant has no relevant or useful other information to provide or that
      the government is already aware of the information shall not preclude a
      determination by the court that the defendant has complied with this
      requirement.

U.S. Sentencing Guidelines Manual § 5C1.2 (1998).

       Although the defendant must show that he has provided complete and truthful
information, see United States v. Weekly, 118 F.3d 576, 581 (8th Cir. 1997), nothing
in the guideline or statute specifies the form or place or manner of disclosure, see
United States v. Montanez, 82 F.3d 520, 522 (1st Cir. 1996). At the Genesis Hospital,
on the evening of January 7, 1997, Mullings provided information about the various
crimes including the identification of Dukes as a participant, the location of Mullings's
residence, and many other details.

      After receiving evidence at the sentencing hearing concerning this information
exchange, the trial court found that Mullings had truthfully provided all information and
evidence he had concerning the offenses. In our view, this finding was not clearly
erroneous. See United States v. Romo, 81 F.3d 84, 86 (8th Cir. 1996). Thus, the
government's challenge is also without merit.



                                          -6-
III.   CONCLUSION

      Accordingly, we affirm the conviction and sentence of Dukes and affirm the
sentence imposed upon Mullings.




       A true copy.

             ATTEST:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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