                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3750
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
       v.                              * District Court for the District of
                                       * Minnesota.
Jeffrey Mathew Jeanetta,               *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: June 9, 2008
                                Filed: July 7, 2008
                                 ___________

Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
                           ___________

BYE, Circuit Judge.

      Jeffrey Mathew Jeanetta appeals his convictions for conspiracy to distribute and
possess with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846, distribution of methamphetamine, 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A), and possession of a firearm by a felon, 18 U.S.C. §§ 922(g)(1),
924(a)(2) and 924(e). We affirm.
                                          I

       In August 2005, state investigators received information from a confidential
informant connecting Jeanetta with drug trafficking. The informant stated Jeanetta
was selling between two and four pounds of methamphetamine each week out of his
residence. The investigator who interviewed the informant knew Jeanetta had two
prior drug-related felonies, and had received similar reports regarding Jeanetta over
the course of the previous year.

       On August 30, 2005, at the behest of investigators, the informant went to
Jeanetta's residence and purchased one-quarter ounce of methamphetamine. Two
weeks later, the investigators applied for a search warrant. As probable cause for the
warrant, investigators cited the information from the informant, the controlled drug
buy, information from other sources indicating Jeanetta was dealing large quantities
of methamphetamine from the residence, and Jeanetta's prior drug-related felony
convictions. A warrant issued and the search uncovered: a modest amount of
methamphetamine, cocaine and marijuana; $5364 cash; scales; Ziploc bags; a two-
way police radio and scanner; a list of police frequencies; night vision binoculars,
surveillance cameras on a detached garage with a video monitor hooked up to the
cameras; glass pipes for smoking drugs; and miscellaneous drug paraphernalia. While
executing the warrant, an individual drove up to the residence and was arrested when
a search of his vehicle uncovered methamphetamine, drug paraphernalia, drug notes,
and $2000 cash.

       Jeanetta was arrested and taken into state custody. The next day, he was
interviewed by two investigators. After some initial reluctance, Jeanetta agreed to
cooperate and the investigators summoned an agent from the Drug Enforcement
Agency. Jeanetta told the DEA agent about several of his drug sources, including
names of individuals, physical descriptions, drug quantities purchased, cost of the
drugs, etc. After being debriefed, Jeanetta agreed to cooperate and arrangements were

                                         -2-
made for him to begin making controlled buys from the named sources. In early
October 2005, before those plans came to fruition, Jeanetta absconded.

      On October 12, 2005, a federal indictment was returned charging Jeanetta with
conspiracy to possess and possession with intent to distribute methamphetamine.
Eight months later, on June 1, 2006, Jeanetta was taken into custody by members of
a multi-jurisdictional task force. A search of the RV he was living in uncovered two
handguns. Jeanetta was returned to state custody and negotiated a plea agreement
with the state prosecutor to drug charges stemming from his arrest in 2005. After
pleading guilty to the state charges, Jeanetta was released to federal authorities on July
18, 2006, and arraigned on the federal indictment before a magistrate judge the next
day.

      On August 24, 2006, Jeanetta filed motions for discovery and suppression of
evidence seized in the search of his residence. On September 29, 2006, Jeanetta
moved to dismiss the indictment for violations of 1) the Speedy Trial Act, 2) his Sixth
Amendment right to a speedy trial, and 3) Rule 5(a) of the Federal Rules of Criminal
Procedure. On October 30, 2006, the magistrate judge1 issued a report and
recommendation recommending the motions to suppress and dismiss be denied. On
November 28, 2006, the district court2 adopted the report and recommendation.

      On November 24, 2006, the government moved to continue the December 4,
2006, trial date. Jeanetta objected but the district court continued the trial until
January 9, 2007. On December 20, 2006, the government filed a superceding
indictment adding the weapons charges. Jeanetta moved a second time for dismissal


      1
        The Honorable Susan Richard Nelson, United States Magistrate Judge for the
District of Minnesota.
      2
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.

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based on violations of 1) the Speedy Trial Act, 2) his Sixth Amendment right to a
speedy trial, and 3) Rule 5(a) of the Federal Rules of Criminal Procedure. The
motions were again denied and trial commenced on January 9, 2007. Jeanetta was
convicted on all counts and sentenced to two life terms and one 360 month term. On
appeal, he argues:

      1.     The search warrant for his residence was unsupported by probable
             cause and the district court erred in refusing to suppress the
             evidence seized during the search;

      2.     The forty-nine-day delay between the time of his arrest and the
             arraignment before a federal magistrate judge violated Rule 5(a)
             of the Federal Rules of Criminal Procedure and the district court
             erred in refusing to dismiss the indictment as a sanction;

      3.     The delay in bringing him to trial violated his Sixth Amendment
             right to a speedy trial; and

      4.     The district court erred in allowing a police officer to testify as an
             expert about the drug-related significance of items seized during
             the search of Jeanetta's residence.

                                           II

      A.     Search Warrant – Probable Cause

      Jeanetta argues there was insufficient probable cause upon which to base a
warrant to search his residence and the evidence seized should have been suppressed.
He contends the warrant relied, in part, on the informant's controlled drug buy which
took place two weeks before the issuance of the warrant. According to Jeanetta, any
information gleaned by the informant during the drug buy was stale by the time it was
presented to the state court in support of the warrant.




                                          -4-
       On appeal from the denial of a motion to suppress, we review the district court's
historical factual findings for clear error and its conclusions of law on the probable
cause issue de novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996); United
States v. Grimaldo, 214 F.3d 967, 976 (8th Cir. 2000). The evidence as a whole must
provide a substantial basis for a finding of probable cause to support the issuance of
a search warrant. Grimaldo, 214 F.3d at 976. "Probable cause exists when the
affidavit sets forth facts sufficient to create a fair probability that evidence of a crime
will be found in the place to be searched." Id. (internal quotations omitted). When
reviewing the sufficiency of an affidavit to support a finding of probable cause, we
consider the totality of the circumstances. United States v. Searcy, 181 F.3d 975, 981
(8th Cir. 1999). "[W]e note that probable cause may be established by the
observations of trained law enforcement officers or by circumstantial evidence," id.,
and "[i]t is axiomatic by now that under the fourth amendment the probable cause
upon which a valid search warrant must be based must exist at the time at which the
warrant was issued, not at some earlier time." United States v. Button, 653 F.2d 319,
324 (8th Cir. 1981) (quoting United States v. Steeves, 525 F.2d 33, 37 (8th Cir.
1975)).

      Courts consider the nature of the property sought in determining whether
probable cause was shown to exist on the date of the warrant. For example:

             Although there can be no precise rule as to how much time
             may intervene between the obtaining of the facts and the
             issuance of the search warrant, in dealing with a substance
             like marihuana, which can be easily concealed and moved
             about, probable cause to believe that it was in a certain
             building on the third of the month is not probable cause to
             believe that it will be in the same building eight days later.

Id. (quoting Ashley v. State, 241 N.E.2d 264, 269 (Ind. 1968)) (other citations
omitted).


                                           -5-
         Standing alone, the fact the controlled buy was made two weeks before the
warrant issued does not render the information in the application stale. Probable cause
must exist when a warrant is issued, not merely at some earlier time, but "[t]here is no
bright-line test for determining when information is stale . . . , and the vitality of
probable cause cannot be quantified by simply counting the number of days between
the occurrence of the facts supplied and the issuance of the affidavit." United States
v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993). "Time factors must be examined in
the context of a specific case and the nature of the crime under investigation." Id.
Additionally, "[w]here continuing criminal activity is suspected, the passage of time
is less significant." United States v. Formaro, 152 F.3d 768, 771 (8th Cir. 1998)
("[T]he two and one-half weeks lapse did not negate the existence of probable cause
. . . .") (quoting United States v. LaMorie, 100 F.3d 547, 552 (8th Cir. 1996)). "In
investigations of ongoing narcotics operations, 'intervals of weeks or months between
the last described act and the application for a warrant [does] not necessarily make the
information stale.'" United States v. Ortiz, 143 F.3d 728, 732-33 (2d Cir. 1998)
(quoting Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991)); see also United
States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993) ("With respect to drug trafficking,
probable cause may continue for several weeks, if not months, of the last reported
instance of suspect activity.") (quoting United States v. Angulo-Lopez, 791 F.2d 1394,
1399 (9th Cir. 1986)).

       We conclude the two week period between the controlled buy and issuance of
the warrant did not render the informant's information presumptively stale. Instead,
considering the totality of the circumstances, the information supported a belief
Jeanetta was engaged in an ongoing criminal enterprise and evidence of his illegal
activities would be found at his residence. Therefore, we affirm the district court's
denial of the motion to suppress.




                                          -6-
      B.     Rule 5(a) – Arraignment before the Magistrate Judge

      Jeanetta next argues the government violated Rule 5(a) of the Federal Rules of
Criminal Procedure by delaying his appearance before a magistrate judge for forty-
nine days following his arrest. According to Jeanetta, the district court should have
dismissed the indictment as a sanction for violating Rule 5(a).

      Rule 5(a) of the Federal Rules of Criminal Procedure provides the arrested
person shall be taken without unnecessary delay before a magistrate judge.

      The requirements of [Rule 5(a)] and the teachings of the Supreme Court
      in McNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United
      States, 354 U.S. 449 (1957) are designed to frustrate law-enforcing
      officers from detaining the arrested person for an unnecessary period of
      time to enable the officer to extract a confession from the arrested
      individual. But this salutary principle is not applicable where the person
      under arrest is in the custody and under the control of local and not
      federal officers, unless, of course, the state officers are acting at the
      direction of or in concert with the federal officers, or there is
      collaboration between the federal and state authorities. See Grooms v.
      United States, 429 F.2d 839, 842-843 (8th Cir. 1970), and the numerous
      cases there cited.

United States v. Morris, 445 F.2d 1233, 1236 (8th Cir. 1971).

       When Jeanetta was arrested on June 1, 2006, he was taken into and held in state
custody until he entered a plea of guilty to the outstanding state charges. Upon
pleading guilty, Jeanetta was released into federal custody on July 18, 2006, and
arraigned the following day. Because Jeanetta was in state custody the entire time, the
protections of Rule 5(a) are not implicated. Further, Jeanetta offers no evidence to
suggest he was held in state custody at the direction of or in concert with federal
officers. Thus, there was no violation of Rule 5(a).


                                         -7-
      C.     Sixth Amendment Violation

       Jeanetta contends his Sixth Amendment right to a speedy trial was violated by
the fifteen-month delay between his indictment in October 2005 and the trial in
January 2007. Notably, he does not allege a violation of the Speedy Trial Act, 18
U.S.C.A. § 3161(c)(1).

       We consider four factors when applying a Sixth Amendment balancing test to
pretrial delay: 1) the length of delay; 2) the reason for delay; 3) whether the defendant
asserted the right to a speedy trial; and 4) whether the defendant suffered any
prejudice. Barker v. Wingo, 407 U.S. 514, 530 (1972). It would be unusual to find
the Sixth Amendment has been violated when the Speedy Trial Act has not. United
States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002).

       A delay approaching one year may meet the threshold for presumptively
prejudicial delay requiring application of the Barker factors. Doggett v. United States,
505 U.S. 647, 652 n.1 (1992); United States v. Walker, 92 F.3d 714, 717 (8th Cir.
1996) (finding thirty-seven month delay presumptively prejudicial); cf. United States
v. Patterson, 140 F.3d 767, 772 (8th Cir. 1998) (finding five-month period between
detention and trial on drug charges, interrupted by pretrial motions, "was not
sufficiently long to be presumptively prejudicial"); United States v. McFarland, 116
F.3d 316, 318 (8th Cir. 1997) (holding delay just over seven months did not trigger
Sixth Amendment analysis). Where no presumptively prejudicial delay exists we
need not examine the remaining three factors under Barker. Doggett, 505 U.S. at
651-52; Sprouts, 282 F.3d at 1043.

       We assume Jeanetta has shown presumptive prejudice resulting from the
fifteen-month delay and consider the additional Barker factors. Under the second
factor, we note the reason for nearly eight months of the delay was Jeanetta's flight
from prosecution. If Jeanetta had remained available the delay in prosecuting him

                                          -8-
would have been less than eight months – well within the limits suggested by the
Supreme Court. Thus, this factor weighs heavily in favor of finding no Sixth
Amendment violation. As to the third factor, there is no dispute Jeanetta timely
asserted his speedy trial rights. Finally, as to the fourth factor, Jeanetta argues the
delay prejudiced his defense because it allowed the government to file a superceding
indictment adding the weapons charges and locate additional witnesses. The weapons
charge, however, resulted directly from Jeanetta's flight to avoid prosecution. Further,
even assuming such matters qualify as "prejudice" in this context, Jeanetta offers no
specifics to support his claim the government's witnesses would not have been
similarly available had the trial occurred earlier. Finally, Jeanetta points to no change
of circumstance making it more difficult for him to marshal a defense to the charges,
i.e., disappearance of witnesses or evidence. Thus, there was no unreasonable delay,
no prejudice, and no Sixth Amendment violation.

      D.     Expert Testimony

       Jeanetta's final argument is the district court abused its discretion when it
allowed expert testimony from a police officer explaining the significance of various
items seized during the search of his home. For example, the officer testified the
Ziploc bags found were commonly used by drug dealers to repackage drugs, and were
popular because they were easy to use, resealable, and allowed the drugs to be viewed.
He also testified it was common for drug dealers to use radios, scanners, cameras,
monitors, and night vision goggles to monitor the activities of law enforcement. The
officer further testified it was common for drug dealers to maintain large quantities
of cash on hand for drug-related transactions. According to Jeanetta, this testimony
fell outside the bounds allowable under Fed. R. Evid. 702. Additionally, Jeanetta
argued he was a drug user, not a drug dealer, and the officer's testimony was unfairly
prejudicial under Fed. R. Evid. 403.




                                          -9-
       We review the district court's decision to allow expert testimony under an abuse
of discretion standard. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); United
States v. Brown, 110 F.3d 605, 610 (8th Cir. 1997).

       Federal Rule of Evidence 702 permits a district court to allow the testimony of
a witness whose knowledge, skill, training, experience or education will assist a trier
of fact in understanding an area involving specialized subject matter. See Fed. R.
Evid. 702. Such a witness is regarded as an expert under the rule. Id. "A district
court has discretion to allow law enforcement officials to testify as experts concerning
the modus operandi of drug dealers in areas concerning activities which are not
something with which most jurors are familiar." Brown, 110 F.3d at 610 (citations
omitted). In deciding whether to permit expert testimony, a district court still must
balance the probative value of the testimony versus its possible prejudicial effects.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993); see also Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) (holding Daubert applies not only
to scientific testimony but to all expert testimony).

       The significance of seemingly innocuous household items, e.g., Ziploc bags and
scales, along with the presence of sophisticated surveillance equipment, including
scanners, cameras, monitors, and night vision goggles, combined with the presence
of large amounts of cash, was highly relevant to Jeanetta's claim he was merely a drug
user and not a trafficker. Because the importance of the items would not necessarily
be apparent to a lay observer, the expert testimony was necessary to explain the
significance of the items as they related to the world of drug dealing.

      Further, the fact the evidence was prejudicial to Jeanetta's defense does not
mean it constituted unfair prejudice. It is the job of government prosecutors to present
evidence prejudicial to the defendant; they are simply not allowed to present evidence
which unfairly prejudices the defendant. Here the evidence directly refuted Jeanetta's
defense. We conclude the district court properly balanced the probative value of the

                                         -10-
evidence against its prejudicial effect and correctly concluded it fell within the
parameters of Rule 702.

                                       III

      The judgment of the district court is affirmed.
                     ______________________________




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