UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4380

MICHAEL DELANEY ROBERTS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-96-291-WMN)

Submitted: February 10, 1998

Decided: April 2, 1998

Before WILLIAMS and MICHAEL, Circuit Judges, and HALL,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gil S. Amaral, WALKER, VAN BAVEL, AMARAL & MEAD,
P.A., Baltimore, Maryland; Janis R. Harvey, Esquire, LAW OFFICES
OF JANIS R. HARVEY, P.A., Baltimore, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, John F. Purcell, Jr.,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Michael D. Roberts appeals his convictions and sen-
tences on one count of possession of marijuana with intent to distrib-
ute (18 U.S.C. § 841(a) (1994)) and one count of possession of a
firearm by a convicted felon (18 U.S.C.A. § 922(g)(1) (West 1976 &
Supp. 1997)). He was sentenced to 235 months' imprisonment. Rob-
erts contends the trial court erred in denying his motion to suppress
evidence seized at his home and in granting the Government's
motions to suppress certain testimony. Roberts also contends that the
court's jury instruction concerning the firearm offense deprived him
of his Fourteenth Amendment right to equal protection under the law.
Finding no error, we affirm.

In February 1996, during the course of investigating a string of
commercial burglaries, Detective Corporal John E. Superson of the
Howard County Police Department applied for and received a search
and seizure warrant for Roberts's residence at 1208 Thompson Street.
Roberts shared the residence with his girlfriend, Lisa Fletcher. The
purpose of the warrant was to seize evidence of burglary tools and
other such equipment and clothing involved in the burglaries.

During the search of Roberts's home, police seized a.22 caliber
rifle, rounds of ammunition, and marijuana, including twenty-two live
marijuana plants. Defense counsel unsuccessfully sought to suppress
the evidence seized on the basis that the affidavit in support of the
warrant did not establish a link between the criminal activity and
Roberts's residence.

We review de novo the legal question of whether a search warrant
and its supporting affidavit are legally sufficient and accord substan-
tial deference to a neutral and detached judge's judgment. See United
States v. Oloyede, 982 F.2d 133, 138 (4th Cir. 1992). We must simply

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insure the judge had a substantial basis for concluding probable cause
existed. See Illinois v. Gates, 462 U.S. 213, 238 (1983). The judge's
task is "to make a practical, common-sense decision whether, 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." Id. In making our assessment, we consider the
totality of the circumstances, including whether, from the affidavit,
the judge could assess the informant's reliability and his basis of
knowledge and could evaluate the degree of the officer's corrobora-
tion of the informant's tip. Id.; see also United States v. Lalor, 996
F.2d 1578, 1581 (4th Cir. 1993).

Superson submitted a detailed ten-page affidavit in support of his
request for a search warrant. According to Superson, two confidential
informants provided him information linking Roberts and his resi-
dence to a series of commercial burglaries. One informant named four
men, including Roberts, involved in a string of commercial burglaries.
One of the men named was Roberts's brother, Larry Roberts. The
informant described in detail how the burglaries were undertaken. He
described a scenario in which the burglars would disable telephone
and alarm systems, forcibly enter the building, and pry open any safes
or remove the safes they were unable to open. The burglars wore
gloves, hoods, and masks during the burglaries. The details provided
by the informant were consistent with what Superson knew of the
burglaries. According to the informant, safes removed from commer-
cial establishment were taken to 8131 2nd Street, Larry Roberts's
home address, to be pried open. The safes were later dumped in a
creek behind the home or in another creek. The informant also
described an occasion when Roberts and the other burglars requested
help from a man named Jan to unload a safe from a truck. Jan worked
in a junkyard next to the 2nd Street address.

Superson corroborated much of the information provided by the
informant. He verified names and addresses. He also interviewed Jan,
who recalled unloading a safe, but could not recall Roberts being
present at the time. He did, however, recall Roberts visiting the 2nd
Street address. He gave Superson Roberts's phone number. Superson
entered the 2nd Street property, which was abandoned, and found a
set of welding and oxygen tanks and other tools. Superson recovered

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safes in the creeks described by the informant. The safes were later
found to be stolen from commercial establishments.

Superson also learned through police reports that one of the men
named by the informant had a prior arrest for a commercial burglary.
At his arrest, he had keys to a Ford Escort belonging to Fletcher.
Police found pry bars, a splitting axe, and brown gloves in the Escort.

Another informant did not name Roberts as one of the burglars;
however, he did provide the other names provided by the prior infor-
mant. In addition, he told Superson that the three men were seen in
a Camaro with license plate number CTX-216. A records search
revealed Fletcher owned that vehicle. (JA at 13-19).

On appeal, Roberts contends Superson's affidavit did not contain
sufficient information to link the burglaries to Roberts's home. In
Lalor, we recognized "[i]n this and other circuits, residential searches
have been upheld only where some information links the criminal
activity to the defendant's residence . . . . Where no evidence connects
the drug activity to the residence, the courts have found the warrant
defective." Lalor, 996 F.2d at 1583.

Superson's affidavit gave no indication of the informants' reliabil-
ity or basis for knowledge. In issuing the warrant, a magistrate must
look at the totality of the circumstances and an informant's reliability
and basis for knowledge are "no longer independent requirements."
Lalor, 996 F.2d at 1581; see also United States v. Wilhelm, 80 F.3d
116, 118 (4th Cir. 1996). Any information provided by an informant
may establish probable cause if the information is sufficiently corrob-
orated. See United States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991).

In this instance, we find that Superson sufficiently corroborated the
information provided by the informants. Superson verified names and
addresses, located the safes as directed, found equipment that could
be used to open safes at an address provided by one of the informants,
discovered one of the names provided had a prior arrest for burglary,
and corroborated in part the incident with Jan at the junkyard. Corrob-
oration of some of the details is often sufficient because "an informant
[who] is right about some things . . . [is] more probably right about
other facts." Gates, 462 U.S. at 244. Even corroboration of innocent

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details tends to indicate other portions of the informant's information
are correct. See Lalor, 996 F.2d at 1581. Probable cause is established
if a man of reasonable caution would believe evidence of a crime
would be located at the particular location. It does not need to be
shown that the belief is correct or more likely true than false. See
United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992).

We also find there was a connection between the criminal activity
and Roberts's residence because it was reasonable to presume that the
instrumentalities of the criminal activity--in this instance, burglary
tools and clothing--would be stored in the residence. See United
States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988). Superson's
affidavit described an on-going criminal enterprise. The instrumental-
ities were not likely to have been disposed of. In addition, Roberts
was directly linked to the criminal activity by one of the informants.
Furthermore, one of Fletcher's cars had been observed at the scene of
a burglary and contained burglary tools. Accordingly, the judge's
finding of probable cause was appropriate.

In any event, the search was valid under the good faith exception
to the warrant requirement. Under the good faith exception, evidence
obtained from a defective search warrant will not be suppressed
unless one of the following situations is present: (1) the officers were
dishonest or reckless in preparing their affidavit; (2) the judge acted
as a "rubber stamp" for the officers; (3) the judge did not have a sub-
stantial basis for determining the existence of probable cause; or (4)
the officers could not have harbored an objectively reasonable belief
in the existence of probable cause. See United States v. Leon, 468
U.S. 897, 926 (1984).

On appeal, Roberts contends Superson could not have had an
objectively reasonable belief in the existence of probable cause. The
Supreme Court outlined four situations in which such a belief would
be unreasonable: (1) the judge was misled by information in the affi-
davit the officer "knew was false or would have known was false
except for his reckless disregard of the truth"; (2) the judge "wholly
abandoned his judicial role"; (3) the affidavit was "so lacking in indi-
cia of probable cause as to render official belief in its existence
entirely unreasonable"; and (4) "depending on the circumstances of
the particular case, a warrant may be so facially deficient . . . that the

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officers cannot reasonably presume it to be valid." Id. at 923 (citations
and quotations omitted). None of the situations exist in the instant
appeal. There is no indication Superson believed the information to
be false or that the judge abandoned his judicial role. Nor was the
affidavit lacking in probable cause or the warrant facially deficient.

At trial, the court granted the Government's motion in limine seek-
ing to preclude defense counsel's substantive use of Fletcher's state
court conviction for possession of marijuana recovered during the
search if Fletcher did not testify and if the purpose of introducing the
evidence was to establish Roberts's innocence. Roberts contends he
was denied his Sixth Amendment right to present witnesses on his
behalf and to question those witnesses in open court. We review deci-
sions regarding the admission of evidence for abuse of discretion. See
United States v. Whittington, 26 F.3d 456, 465 (4th Cir. 1994).

Roberts mischaracterizes the effect of the court's grant of the Gov-
ernment's motion. Roberts was not prevented from having Fletcher
testify and take blame for the marijuana. He was only prevented from
presenting evidence of Fletcher's conviction in lieu of her testimony.
Roberts does not state how Fletcher's guilty plea bears on his guilt or
innocence. A nontestifying co-defendant's guilty plea should not be
mentioned at trial whenever possible. See United States v. Blevins,
960 F.2d 1252, 1260 (4th Cir. 1992). The introduction of such evi-
dence may prevent the jury from making an "individual assessment"
of the remaining defendant's guilt. Id. Accordingly, we find the court
did not abuse its discretion.

Likewise, the court did not abuse its discretion in precluding testi-
mony from Roberts's sister regarding his possession of the firearm.
It is unlawful for any person who has been convicted of a crime pun-
ishable by a term of imprisonment exceeding one year to possess any
firearm affecting interstate commerce. See 18 U.S.C. § 922(g)(1).
According to Roberts, his sister would testify that the rifle was a fam-
ily heirloom he received when he was eight years old. Roberts con-
tends he could only be guilty of the firearm offense if he was a
convicted felon prior to receiving possession of the rifle. This argu-
ment is without merit. Unlawful possession of a firearm under
§ 922(g) requires either a showing of actual possession or proof of
constructive or joint possession at the time the defendant stands con-

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victed of a crime punishable by more than a year. See United States
v. Blue, 957 F.2d 106, 107 (4th Cir. 1992). Roberts stipulated at trial
that due to his prior convictions, he was a person prohibited from pos-
sessing a firearm under § 922(g). Roberts's sister would only testify
as to when Roberts came into possession of the rifle. Her testimony
was irrelevant with regard to his possession of the firearm on the day
his home was searched.

The court instructed the jury that it was permitted to find the rifle
traveled in interstate commerce from the fact that the firearm was
manufactured in Connecticut and located in Roberts's possession in
Maryland. Roberts contends the instruction violated the Equal Protec-
tion Clause of the Fourteenth Amendment because it created a class
of convicted felons who could not violate the statute, i.e. convicted
felons found possessing the firearm in the state it was manufactured.

As a technical matter, Roberts's equal protection argument should
have been raised under the Fifth Amendment. See International Sci-
ence & Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F.3d
1146, 1156 (4th Cir. 1997). Furthermore, this argument was not raised
in the court below, and we therefore review this issue for plain error.
See United States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996).

We find no error. Evidence that a firearm was manufactured in one
state and possessed by the defendant in another state is sufficient to
establish the interstate commerce element of § 922(g)(1). See United
States v. Crump, 120 F.3d 462, 466 (4th Cir. 1997). The court's
instruction in this instance conformed to the evidence and did not
create a separate class of felons. Furthermore, the statute is not depen-
dent on where the firearm was manufactured. The interstate com-
merce element can be established if it is shown the firearm traveled
through interstate commerce at any time prior to or during the defen-
dant's possession. See United States v. Chesney , 86 F.3d 564, 570-71
(6th Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3826 (U.S.
June 16, 1997) (No. 96-9027). Since there was no error, it follows
there was no plain error. See Cedelle, 89 F.3d at 185.

Accordingly, we affirm Roberts's convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid in the decisional process.

AFFIRMED

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