                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
      ___________

      No. 05-3296
      ___________

United States of America,               *
                                        *
      Plaintiff - Appellee,             *
                                        *
      v.                                *
                                        *
Maynard F. Brown,                       *
                                        *
      Defendant - Appellant.            *

      __________
                                            Appeals from the United States
      No. 05-3428                           District Court for the Western
      __________                            District of Missouri.

United States of America                *
                                        *
      Plaintiff - Appellee,             *
                                        *
      v.                                *
                                        *
David L. Deputy,                        *
                                        *
      Defendant - Appellant.            *
      __________

      No. 05-3456
      __________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         *
      v.                                 *
                                         *
Monty Camden,                            *
                                         *
      Defendant - Appellant.             *
                                    ___________

                              Submitted: March 13, 2006
                                 Filed: August 29, 2006
                                  ___________

Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
                           ___________

JOHN R. GIBSON, Circuit Judge.

      Maynard Brown, David Deputy, and Monty Camden were among nineteen
defendants who were charged in a forty-nine count indictment that arose from the
alleged diversion of pseudoephedrine by businesses in and around Forsyth, Missouri
to individuals who used the pseudoephedrine to manufacture methamphetamine.
Deputy appeals from his conviction following a jury trial, Brown appeals from the
sentence imposed following his guilty plea, and Camden appeals from the denial of
his motion to quash and to suppress evidence that preceded his conditional guilty plea.
We affirm.




                                         -2-
       Deputy operated three related businesses from the same warehouse building in
Forsyth, Missouri. The Castle was a retail operation that primarily sold drug
paraphernalia items, and it was the focus of the two-year undercover investigation that
concluded with these indictments. D & D Distributors was an entity Deputy formed
for the purpose of obtaining a federal Drug Enforcement Administration license to
distribute, on a wholesale level, products containing pseudoephedrine, ephedrine, and
phenylpropanolamine. D & D supplied the pseudoephedrine pills that were purchased
and found at The Castle during the investigation. Between May of 2000 and August
of 2002, D & D ordered 5,142,528 pseudoephedrine pills. The third business, D-Mart,
sold pseudoephedrine pills to Deputy’s customers who wanted to purchase more than
the maximum number of pills allowed by the DEA without a record being made of the
sale.

        When Deputy applied for the DEA license in 1999, the agency assigned a
diversion investigator to review the application, meet with Deputy, and inspect the
location in which the products were to be handled and stored. Deputy’s application
listed five convenience stores to which he intended to distribute the products, and he
represented to the investigator that he expected sales of these products to make up less
than ten percent of his total sales. The investigator saw no items of drug paraphernalia
during her inspection of Deputy’s building, and Deputy did not volunteer that he was
planning to sell such items along with pseudoephedrine. The agency approved the
application and issued the license.

       The DEA investigator provided Deputy with copies of notices that informed
him that pseudoephedrine is used illicitly to manufacture methamphetamine and
advised him how to identify people who might be buying the product for that purpose.
She also gave him a chart that listed the maximum number of pseudoephedrine pills
that a distributor could sell in a month’s time to individuals and to retailers without
reporting the sale to the DEA. The DEA has no threshold requirement that limits how



                                          -3-
much pseudoephedrine a distributor is permitted to sell; its requirements address only
record-keeping and reporting.

       In 2002, the DEA was scheduled to return to D & D to verify that it was
meeting the legal requirements of the distributing license it held. However, the
investigator learned that D & D was the subject of an ongoing criminal investigation
and refrained from its regulatory inspection so as not to interfere. At the conclusion
of the criminal investigation, the DEA gave Deputy the opportunity to surrender his
license, and he did so.

       The criminal investigation, which continued for nearly two years, was
conducted by the COMET drug task force, or the Combined Ozarks Multi-
jurisdictional Enforcement Team. Having received information that The Castle was
selling large quantities of pseudoephedrine pills, members of the task force visited the
business on October 25, 2001. They observed that The Castle was selling a variety
of items including drug paraphernalia, plastic baggies commonly used for packaging
controlled substances, smoking pipes, scales, urine test cleansing kits, knives, and
pornography, along with pseudoephedrine. The Castle was identified as a head shop,
a business that primarily sells drug paraphernalia. However, it also sold World War
II memorabilia, including Russian army gas masks.

        The officers purchased large amounts of pseudoephedrine at The Castle
through more than a dozen undercover purchases. During these sales, Deputy often
spoke of the limit on the number of pseudoephedrine pills that he could sell to an
individual and expressed his preference for staying under the DEA reporting limit.
He would also tell customers that he would not remember them if they returned the
following day, thereby allowing the customers to purchase another month’s limit of
pills. He assured customers that the pills he sold were not wax coated and would
dissolve easily. In addition, officers conducted trash pulls of the dumpster located on
the south side of The Castle’s parking lot and retrieved large numbers of empty blister

                                          -4-
packs of pseudoephedrine with all the pills having been removed. According to a
member of the task force, this commonly occurs to allow all the pills to be gathered
in a single container as is necessary to cook methamphetamine. The dumpster also
contained several envelopes which bore the words “pseudo pull” along with a dollar
amount and a date, and bank deposit slips for The Castle.

       The officers executed a federal search warrant for The Castle on October 17,
2002. During the search they seized approximately 460,000 pseudoephedrine pills
with a note on the boxes indicating that they were waiting for a shipment back to
Lannett, the drug manufacturer. The officers also learned that Deputy ran his three
businesses out of this location: The Castle, D & D Distribution, and D-Mart. Records
relating to D & D indicated that it was distributing pseudoephedrine to locations
throughout southwest Missouri and northern Arkansas, including a laundromat and
other head shops. Larry Crow was D & D’s main salesperson.

        D-Mart was located in the warehouse that housed Deputy’s other businesses,
but D-Mart had a separate entrance. Once certain customers purchased the limit of
pills at The Castle (meaning below the reporting requirement), Deputy would advise
them that they could exit the store and buy the limit again at D-Mart.

       During the search, agents found a January 16, 2002 letter from the DEA
advising Deputy that Missouri law forbids retail stores from selling more than the
equivalent of three boxes of pseudoephedrine pills to a customer. They also
discovered a May 23, 2000 agreement with Lannett, signed by Deputy, which limited
the sale of its pseudoephedrine to 144 boxes per customer per month. According to
Crow, Deputy told him he could sell up to four cases of pseudoephedrine per month
per store, with each case consisting of 144 boxes of 48 pills, but he was to put each
case on a separate invoice. Deputy told Crow he could sell one person more than four
cases so long as the person had more than one business that could make separate
purchases. Crow also testified that he prepared false invoices at Deputy’s direction

                                         -5-
for pseudoephedrine sales to a business named Good Earth Industries, but Deputy
actually kept those pills for extra inventory.

       One of the stores to which Crow sold pseudoephedrine was the Hilltop Store
located in Isabella, Missouri, and operated by Maynard Brown. Members of the drug
task force obtained a search warrant for the store and for Brown’s residence and
executed it on March 29, 2003. Brown was arrested the following day. Within days
after his arrest, Brown threatened his relative and former employee, Missy Reichert,
who was cooperating with the investigation. Six months later, Brown placed a
message on a sign outside of his store that said, "I see you, Missy. I see you, too,
Tony." Missy Reichert’s husband is named Tony. Brown also followed the off-duty
vehicle of an Ozark County deputy sheriff who had helped to obtain and execute the
search warrant of his property. When the officer stopped Brown and asked why he
was following him, Brown replied that he wanted the officer "to see what it felt like."

       The investigation also revealed information that Brown distributed some of the
pseudoephedrine he purchased to Monty Camden, who in turn provided it to others
who used it to manufacture methamphetamine.                  Camden then brought
methamphetamine back to Brown to sell at the Hilltop Store. An Ozark County
narcotics investigator learned that heavy traffic frequented Camden’s home, which
was located on a rural road, and that Camden had recently had plumbers working to
replace some pipes that had been burned out by heavy acid. Based on this
information, the investigator attempted to visit Camden in his home to tell him that
he suspected illegal activity and to ask for consent to search the property. When he
arrived at the property, he first knocked on the door of the main house. Getting no
answer, he continued around the house to a cabin. He knocked on its door and again
got no answer. He observed an exhaust fan in a second floor window of the cabin and
a number of sheds that were secured with heavy padlocks. The investigator then
obtained and executed a search warrant for Camden’s property. The search revealed



                                         -6-
chemicals and precursors needed to manufacture methamphetamine along with white
powder substance and residue that field tested positive for methamphetamine.

        The investigation concluded with a forty-nine count indictment that named
Deputy, Crow, Brown, Camden, and fifteen others. Two superseding indictments
were filed, both of which added another defendant and one more count. Deputy went
to trial and was found guilty on all nine of the counts on which he was charged: one
count of conspiracy to distribute or possess three kilograms or more of
pseudoephedrine knowing, or having reasonable cause to believe, that it would be
used to manufacture methamphetamine; two counts of distribution of pseudoephedrine
knowing, or having reasonable cause to believe, that it would be used to manufacture
methamphetamine; one count of possession of pseudoephedrine knowing, or having
reasonable cause to believe, that it would be used to manufacture methamphetamine;
one count of conspiracy to commit money laundering; and four counts of money
laundering.1 Deputy was sentenced to 240 months on each count, to be served
concurrently. The jury also found some of Deputy’s real and personal property
subject to forfeiture under 21 U.S.C. § 853, namely the property that contained The
Castle and cash in the amount of close to one million dollars, and the district court
ordered the forfeiture of those items.2 Deputy appeals from the judgment, arguing:
there was insufficient evidence to support his conviction; the district court erred in
failing to exclude expert testimony on the normal sales of pseudoephedrine; and the
district court abused its discretion in instructing the jury.

      Brown pleaded guilty to one count of conspiracy to distribute or possess three
kilograms or more of pseudoephedrine, knowing or having reasonable cause to believe


      1
       These nine counts were alleged to be in violation of 21 U.S.C. §§ 841(c)(2) and
846, 18 U.S.C. § 1956, and 18 U.S.C. § 1956(a)(1)(A)(i).
      2
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

                                         -7-
that it would be used to manufacture methamphetamine, and was sentenced to 168
months’ imprisonment. He appeals from a two-level enhancement of his sentence that
the district court imposed for obstruction of justice.3

       Camden entered a conditional guilty plea to one count of conspiracy to
manufacture and distribute methamphetamine, reserving the right to appeal the district
court’s denial of his motion to quash a search warrant and to suppress evidence found
in the search.4 Camden was sentenced to thirty-seven months’ imprisonment. On
appeal, Camden raises only the suppression issue.

                                           I.

       Deputy argues that the district court erred in denying his motions for judgment
of acquittal because the government failed to introduce evidence sufficient for the jury
to find him guilty beyond a reasonable doubt on the possession, distribution, and drug
conspiracy counts. He asserts that he was a lawful seller of pseudoephedrine who
openly purchased the product and complied with the DEA’s reporting requirements,
that no evidence was introduced to show that methamphetamine was manufactured
from the pseudoephedrine he sold, and that he was not part of a conspiracy. We
review challenges to sufficiency of the evidence by examining the evidence in the
light most favorable to the verdict and accepting all reasonable inferences which tend
to support the jury’s verdict. United States v. Exson, 328 F.3d 456, 460 (8th Cir.
2003). We do not weigh the evidence or assess the credibility of the witnesses. Id.




      3
       Id.
      4
      Id., adopting the report and recommendation of the Honorable James C.
England, United States Magistrate Judge for the Western District of Missouri.

                                          -8-
       This court has recently had numerous occasions to discuss attacks on the
sufficiency of the evidence in cases involving the possession and distribution of
pseudoephedrine with the knowledge, or with reasonable cause to believe, that it will
be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c). For
example, in United States v. Bewig, 354 F.3d 731 (8th Cir. 2003), we determined that
a reasonable jury could have concluded that Bewig entered into a conspiracy to violate
§ 841(c) because of certain key facts. First, we noted that pseudoephedrine has
limited legal uses, and that "if you do not have a cold, a headache, or sinus problems
there are remarkably few things you can do with pseudoephedrine except make illegal
narcotics." 354 F.3d at 736. Bewig’s sales of pseudoephedrine to routine customers,
and in bulk, suggested that he was acting merely as a front to an organized drug
scheme.      Second, Bewig knew that pseudoephedrine was used to make
methamphetamine. Third, Bewig’s distributor informed him that he was ordering
pseudoephedrine at a disproportionately high rate, which suggests agreement in the
illegal endeavor as a conspirator who promoted the venture with a stake in the
outcome. Fourth, Bewig sold the pseudoephedrine in amounts larger than his limit or
to the same person over the course of a day in multiples of the limit. Taken together,
these facts led us to conclude that Bewig could not "defeat his conviction by hiding
behind an unreasonable veil of ignorance." Id. at 736-37. See also United States v.
Frazier, 408 F.3d 1102 (8th Cir. 2005), cert. denied, 126 S. Ct. 1165 (2006) (rejecting
the argument that defendant’s constructive possession of pseudoephedrine was
insufficient evidence of his knowledge that it would be used to manufacture
methamphetamine).

        We likewise reject Deputy’s challenge to the sufficiency of the evidence. While
we have made it clear that "section [841(c)(2)] does not punish the inadvertent sale of
a listed chemical to an illegal drug manufacturer, but instead punishes only those sales
where the seller understands, or should reasonably understand, that the chemical will
be used illegally," United States v. Sdoulam, 398 F.3d 981, 988 (8th Cir. 2005)
(quoting Bewig, 354 F.3d at 737), the evidence here strongly supports the jury’s

                                          -9-
finding. Deputy knew that pseudoephedrine is used to make methamphetamine, and
investigators found large quantities of empty blister packs dumped in trash receptacles
outside The Castle. Deputy operated two retail businesses out of the same building,
thereby allowing his customers to buy twice the number of tablets during each
purchase. His distribution business, D & D, had a variety of customers that are not
traditional vendors of cold and sinus medication. Deputy advised his D & D
salesman, Crow, how to make it look like he was not exceeding the limit of sales per
customer by pretending that various businesses were unrelated, and Deputy himself
would assure customers that he would not remember them if they returned the
following day. The evidence in this case was overwhelmingly sufficient to establish
the elements of the substantive charges of distribution and possession.

       This same evidence likewise causes us to reject Deputy’s challenge to the
sufficiency of the evidence with respect to the drug conspiracy charge.5 The
government is not required to prove an express understanding between the
conspirators, but "need only establish a tacit understanding between the parties, and
this may be shown wholly through the circumstantial evidence of [the defendant’s]
actions." Bewig, 354 F.3d at 735. Deputy had tacit understandings with Crow about
the quantity of tablets he could sell and to whom, and with his retail customers about
the quality and quantity of the tablets he distributed. The district court did not err in
denying Deputy’s motion for judgment of acquittal.




      5
        Deputy includes a challenge to the sufficiency of the evidence on the money
laundering counts in the heading of his argument, but he never addresses those counts
in the body of his brief. There was sufficient evidence that Deputy made money by
selling pseudoephedrine and that he promoted his illegal distribution scheme with that
money, see United States v. Jenkins, 78 F.3d 1283, 1288 (8th Cir. 1996), and we reject
his challenge.

                                          -10-
                                          II.

       Deputy asserts that the district court erred in denying his motion to exclude the
testimony of an expert witness concerning the normal or expected sales of
pseudoephedrine by a traditional convenience store. Although he acknowledges that
the subject matter of the witness’s testimony was admissible under United States v.
Sdoulam, 398 F.3d 981, 988-91 (8th Cir. 2005), Deputy argues that the witness should
not have been allowed to testify because his opinions were based on insufficient facts
and data,6 and that furthermore his testimony was irrelevant and unfairly prejudicial.
We review the district court’s decision to admit expert testimony for abuse of
discretion. Id. at 989.

        Deputy complains that the witness had not visited any of the stores that D & D
serviced and that he had no information about their location, size, condition, and
operations. However, the witness’s testimony was based on comparing sales at these
stores to data obtained from a national economic census regarding estimated national
pseudoephedrine sales figures. The census information is precisely what we approved
in Sdoulam, and the sales figures came from invoices seized from D & D to which
Deputy posed no objection. Deputy’s assertion of unfair prejudice in the admission
of the testimony is unsupported by any argument, and he has failed to demonstrate that
the district court abused its discretion.



      6
        Deputy argues in his brief that the witness lacked the necessary educational
background in the field of statistics, but he failed to raise that argument before the
district court. Deputy’s counsel raised the witness’s lack of academic degree in the
field of statistics in cross-examination as a challenge to the weight of his testimony,
but made no objection to its admissibility on that ground. We therefore review it for
plain error. Fed. R. Crim. P. 52(b). Deputy has not demonstrated that the district
court committed such error in finding the witness’s educational background sufficient.

                                         -11-
                                          III.

        Deputy asserts that the district court abused its discretion by giving the jury a
permissive inference instruction that allowed the jurors to infer that Deputy had
reasonable cause to believe that the pseudoephedrine he sold would be used to
manufacture methamphetamine if the jurors found that he sold excessive amounts of
pseudoephedrine. Deputy asserts that the instruction was not warranted because the
district court had already agreed to give an instruction on knowing and deliberate
ignorance, and an additional permissive instruction was prosecutorial overkill. We
review the challenge for abuse of discretion, United States v. Phelps, 168 F.3d 1048,
1057 (8th Cir. 1999), and we will uphold the instruction if it is a correct statement of
the law and supported by the evidence. United States v. Sdoulam, 398 F.3d 981, 993
(8th Cir. 2005).

       The challenged instruction is nearly identical to one we approved in Sdoulam,
except that the instruction in this case also permitted an inference of knowledge or
reasonable cause to believe if the jurors found beyond a reasonable doubt that Deputy
"sold abnormally large amounts of pseudoephedrine as a wholesaler to customers not
traditionally associated with the legitimate sale of pseudoephedrine." However,
because the addition of these words was supported by the evidence and the instruction
remains a correct statement of the law, the instruction was proper. See Arkwright
Mut. Ins. Co. v. Gwinner Oil, Inc., 125 F.3d 1176, 1180 (8th Cir. 1997).

      We affirm the judgment as to Deputy.

                                          IV.

      Maynard Brown appeals a single sentencing issue. Brown pleaded guilty to one
count of conspiracy to distribute three kilograms or more of pseudoephedrine,

                                          -12-
knowing or having reasonable cause to believe that it would be used to manufacture
methamphetamine, and was sentenced to 168 months’ imprisonment. The plea
agreement included a stipulation to a base offense level of 32 with a two-level
increase for possession of a dangerous weapon, another two levels for a leadership
role, and a three-level reduction for acceptance of responsibility, with a net offense
level of 33.

       The presentence investigation report recommended a two-level enhancement
under U.S.S.G. § 3C1.1 for obstruction of justice. The district court adopted the
recommendation following an evidentiary hearing, concluding that the evidence raised
the inference of a threat. The district court denied Brown’s objection to the
enhancement, and Brown argues that the preponderance of the evidence did not
support the court’s finding.7 We review the district court’s factual findings for clear
error. United States v. Willey, 350 F.3d 736, 738 (8th Cir. 2003).

       The Ozark County deputy sheriff who arrested Brown spoke with Missy
Reichert and her husband Tony less than one week after the arrest as part of the
ongoing investigation. The Reicherts had recently lived next to the Hilltop Store that
Brown operated and Missy had worked there. They told the deputy that since his
arrest, Brown had been looking for them where they had relocated in Arkansas and
had threatened to kill them. The day after this conversation, the same deputy was
driving in Ozark County and noticed that Brown’s vehicle was following him. He
stopped on a road that he knew was a dead end and got out of his vehicle to enter the
woods. Brown stopped briefly by the deputy’s vehicle and then continued driving


      7
       The government did not agree to the enhancement as part of the plea agreement
and ostensibly took no position on it at the hearing. However, the government
attorney offered to and did conduct a direct examination of the officer who was
involved in each of the incidents upon which the district court’s finding was based.

                                         -13-
towards the dead end. The deputy returned to his vehicle, stopped Brown at the dead
end, and checked him for weapons. He asked Brown why he was following him, and
Brown replied that he wanted the deputy "to see what it felt like."

       Approximately five months later, the deputy noticed a large illuminated sign
sitting next to the Hilltop Store’s driveway. The sign listed items for sale but also
read, "I see you, Missy. I see you, too, Tony." The district court’s conclusion that
Brown’s conduct constituted an implied threat to the Reicherts is not clearly
erroneous.

      Brown also argues that § 3C1.1 requires that the obstructive conduct take place
when the defendant knows that an investigation of the instant offense is underway,
and that he had no such knowledge. We review de novo the application of the
guidelines to the facts. Willey, 240 F.3d at 738.

       The guidelines describe obstructive behavior to include "threatening,
intimidating, or otherwise unlawfully influencing a . . . witness . . . directly or
indirectly, or attempting to do so." U.S.S.G. § 3C1.1, comment. n. 4(a). Brown
correctly asserts that the guideline requires obstructive conduct to have occurred
during the course of the investigation related to the offense of conviction and not at
any other time. United States v. Stolba, 357 F.3d 850, 852-53 (8th Cir. 2004). He
admits that he knew that a state investigation for possession of methamphetamine was
underway but he denies that he had any knowledge of a federal investigation. This
distinction is irrelevant under the guideline, as the state investigation involved a
closely related offense. See United States v. Adediran, 26 F.3d 61, 64-65 (8th Cir.
1994). The district court correctly interpreted the guideline.

      We affirm Brown’s sentence.


                                        -14-
                                         V.

       Camden appeals from the district court’s denial of his motion to quash a search
warrant and to suppress evidence found in that search. He asserts that the affidavit
used to obtain the warrant lacked probable cause and contained knowingly made
material misrepresentations and omissions. We review the district court’s findings of
fact for clear error and its conclusions of law de novo. The existence of probable
cause is a mixed question of fact and law which we review de novo. United States v.
Velazquez-Rivera, 366 F.3d 661, 664 (8th Cir. 2004).

       The affidavit in question was prepared by Ozark County Deputy Sheriff David
Holmes, a member of the drug task force. During the course of his investigation,
Holmes obtained information from an informant that Camden was supplying
methamphetamine to Brown in return for pseudoephedrine tablets. At the time
Holmes obtained this information, Brown had recently been arrested for
manufacturing methamphetamine. The informant said that Camden drove a beer
delivery truck and made weekly stops at the Hilltop Store. After talking with the
owner of the beer distributorship, one of Camden’s neighbors, and another informant,
Holmes went to Camden’s house to speak with him. No one responded to his knocks
on the door of the house or of another cabin located on the property. While there,
Holmes noticed the windows of the cabin were blocked and an exhaust fan was
installed in a second floor window. He saw several windowless, padlocked
outbuildings and a five-gallon jug of what he identified as muriatic acid on the front
porch of the house. In his affidavit, Holmes wrote that muriatic acid is used in the
manufacture of methamphetamine although its intended use is to clean cement. He
saw no cement on Camden’s property. Based on the information in the affidavit, the
Ozark County prosecutor obtained a search warrant for Camden’s property and all of
the buildings located on it. The search revealed chemicals and precursors needed to


                                        -15-
manufacture methamphetamine along with white powder substance and residue that
field tested positive for methamphetamine.

       Camden asserts that the affidavit failed to establish probable cause because it
did not establish a nexus between what it alleged to be Camden’s drug activity and his
property. The affidavit stated that a jug of muriatic acid was located on the porch, but
during cross-examination Holmes admitted that the jug was marked as "acid" and he
believed but did not know it to be muriatic acid at the time. Camden further argues
that other details in the affidavit were unclear, confusing, and insignificant. The
magistrate judge found that the affidavit contained sufficiently reliable and detailed
information, both from informants and resulting from Holmes’s corroborating efforts,
to establish probable cause. We have reviewed the record and conclude that the
circumstances set forth in the affidavit, including the veracity and basis of knowledge
of those who supplied hearsay information, produced a fair probability that contraband
would be found on Camden’s property. See United States v. Edmiston, 46 F.3d 786,
789 (8th Cir. 1995) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The district
court did not err in adopting the magistrate judge’s finding of probable cause.

      Camden also challenges the district court’s finding that the affidavit did not
contain deliberate or reckless misrepresentations and omissions of material facts that
would invalidate the search warrant and exclude the fruits of the search under Franks
v. Delaware, 438 U.S. 154, 155-56 (1978). Camden lists five erroneous factual
statements: 1) the affidavit stated that the jug on the porch contained muriatic acid
when Holmes did not know the identity of its contents with certainty; 2) Holmes
implied that the gallon contained five gallons without knowing the amount in it; 3) the
affidavit did not clearly state whether plumbing had been replaced because acid had
been poured down the drain of the house or the cabin; 4) Holmes did not recite the
distance between the house and the cabin, which is two-tenths of a mile; and 5) the


                                         -16-
affidavit stated that there was no cement visible at the house, but there was in fact
concrete.

       The complaints Camden sets forth are more akin to discrepancies than to
misrepresentations or omissions. However, even assuming that any of them fall into
the latter category, there would be no Franks violation unless Camden shows that
Holmes misrepresented the information or made false statements with the intent to
make, or in reckless disregard of whether it made, the affidavit misleading. United
States v. Allen, 297 F.3d 790, 795 (8th Cir. 2002). Camden has made no effort to
make such a showing. In addition, if information had been intentionally or recklessly
misrepresented, Camden would have to prove that the affidavit would not support a
finding of probable cause without those statements. Id. The record does not support
any such conclusion.

      The district court did not err in denying Camden’s motion to quash the search
warrant and to exclude evidence uncovered pursuant to execution of the warrant.

    We affirm the district court as to all issues with respect to Deputy, Brown, and
Camden.
                    ______________________________




                                        -17-
