                                             NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                   No. 09-3101
                  ____________

         UNITED STATES OF AMERICA

                        v.

                KEITH STEWART,
                  a/k/a Naughty,
                    a/k/a Nutty

                KEITH STEWART,

                            Appellant
                  ____________

                   No. 09-3102
                  ____________

         UNITED STATES OF AMERICA

                        v.

             SHEDRICK CRAFTON,

                            Appellant
                  ____________

   On Appeal from the United States District Court
             for the District of New Jersey
(D.C. Nos. 2-08-cr-00346-001 and 2-08-cr-00346-004)
    District Judge: Honorable Susan D. Wigenton
                     ____________

  Submitted Pursuant to Third Circuit LAR 34.1(a)
                  April 16, 2010
     Before: FISHER and COWEN, Circuit Judges, and PRATTER,* District Judge.

                                      Filed: April 27, 2010
                                         ____________

                                  OPINION OF THE COURT
                                       ____________

FISHER, Circuit Judge.

          Shedrick Crafton appeals his conviction and sentence, and co-defendant Keith

Stewart appeals his conviction, for conspiring to distribute, and to possess with intent to

distribute, one kilogram or more of heroin and five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 841(a) and (b)(1)(A), and 846. Stewart also appeals his

conviction for possessing with intent to distribute 100 grams or more of heroin, in

violation of 21 U.S.C. § 841(a) and (b)(1)(B). For the reasons stated herein, we will

affirm.

                                               I.

          We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

          From August 2006 until February 2008, Stewart and Crafton conspired to

distribute multi-kilogram quantities of heroin and cocaine in and around Newark, New




          *
       Honorable Gene E.K. Pratter, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.

                                                2
Jersey. The evidence against them, the majority of which is not relevant to this appeal,

comprised (1) testimony of cooperating co-conspirators, (2) intercepted cellular telephone

conversations, (3) a conversation recorded by a confidential informant (CI), (4) seizures

of narcotics during traffic stops and the execution of search and arrest warrants,

(5) Crafton’s confession, and (6) expert testimony interpreting code used in telephone

conversations.1

       On August 1, 2008, a federal grand jury sitting in Newark, New Jersey, indicted

Crafton, Stewart, and two other co-conspirators. The indictment charged Crafton and

Stewart with conspiring to distribute, and to possess with intent to distribute, one

kilogram or more of heroin and five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 841(a) and (b)(1)(A), and 846. The indictment also charged Stewart with

possessing with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C.

§ 841(a) and (b)(1)(B). Crafton and Stewart proceeded to trial.2

       On March 19, 2009, after an eight-day trial, the jury returned a guilty verdict on all

counts. Thereafter, the District Court sentenced Crafton to 360 months of imprisonment

and ten years of supervised release and Stewart to two concurrent terms of 360 months of

imprisonment and ten years of supervised release, and issued Stewart a $30,000 fine.

       Crafton and Stewart each timely appealed, and this Court consolidated the appeals.



       1
           The facts pertaining to this appeal will be discussed sequentially below.
       2
           The other two co-conspirators pled guilty.

                                                3
                                             II.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §3742(a). We review a district

court’s denial of a motion to suppress for clear error as to the underlying facts, but

exercise plenary review over the court’s legal determinations. United States v. Shields,

458 F.3d 269, 275-76 (3d Cir. 2006). The same standard applies to claims of outrageous

government conduct. United States v. Hoffecker, 530 F.3d 137, 153 (3d Cir. 2008). We

review criminal sentences and district court rulings on contemporaneous objections for an

abuse of discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc);

United States v. Lore, 430 F.3d 190, 210 (3d Cir. 2005).

                                             III.

       Crafton and Stewart together raise four discrete issues on appeal. First, both

Crafton and Stewart contend that the District Court erred in denying the defendants’

motion to suppress wiretap evidence based on a false statement contained in the warrant

affidavit. Second, Crafton and Stewart allege that they were denied a fair trial because

the prosecutor commented on the defendants’ ability to present evidence during the

prosecutor’s closing arguments. Third, Stewart claims that outrageous government

conduct violated his due process rights. Fourth and finally, Crafton argues that his

sentence is both procedurally and substantively unreasonable. We will address each

contention in turn.



                                              4
                                  A. Motion to Suppress

       On November 15, 2007, Special Agent Timothy Carey of the Department of

Homeland Security, Immigration and Customs Enforcement, submitted a thirty-page

affidavit in support of a warrant to intercept telephone calls made to and from Crafton’s

cellular telephone. In the affidavit, Special Agent Carey stated that he learned, based on a

recorded conversation between the CI and Crafton and the observation of Crafton’s

whereabouts, that Crafton needed to get his “drug press” back from the home of his

associate, Rasheed Tillett. Special Agent Carey also stated that law enforcement had

recovered the drug press, along with other drug paraphernalia, from the Tillett residence

after Tillett’s murder. Finding that there was probable cause that Crafton, Stewart, and

others were engaged in illicit narcotics dealing through the use of Crafton’s cellular

telephone, a judge of the United States District Court for the District of New Jersey issued

a wiretap warrant.

       Prior to trial, Crafton filed a motion, in which Stewart joined, to suppress all

intercepted cellular telephone conversations because, contrary to Carey’s affidavit, law

enforcement did not recover a drug press from the Tillett residence. At the suppression

hearing, Special Agent Carey admitted that he had made a mistake in the affidavit by

assuming without checking that the drug press was recovered from the Tillett residence

based on conversations between the CI and Crafton and law enforcement’s observation of

Crafton’s whereabouts. The District Court denied the motion to suppress from the bench:



                                              5
“this misrepresentation was not a substantial basis upon which the warrant was granted.”

(App. at A124.) On appeal, Crafton and Stewart contend that this decision was in error.

       We have stated that,

       “[w]here a defendant demonstrates by a preponderance of the evidence ‘that
       a false statement knowingly and intentionally, or with reckless disregard for
       the truth, was included by the affiant in the warrant affidavit, and [that] the
       allegedly false statement is necessary to the finding of probable cause,’ the
       Fourth Amendment requires that ‘the fruits of the search’ be excluded ‘to
       the same extent as if probable cause was lacking on the face of the
       affidavit.’”

Shields, 458 F.3d at 276 (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). In

other words, “in order to secure suppression of the fruits of the search, a defendant must

show both that bad faith or reckless disregard existed on the part of the affiant, and that

there would have been no probable cause but for the incorrect statement.” United States

v. Frost, 999 F.2d 737, 743 (3d Cir. 1993).

       We will affirm the District Court’s denial of the suppression motion. The

defendants provided no evidence that Special Agent Carey made the false statement

knowingly or recklessly. More importantly, the omission of the statement does not negate

the existence of probable cause: The lengthy affidavit contained a plethora of evidence

indicating drug trafficking activity apart from the statements regarding the drug press.

Furthermore, even if law enforcement did not ultimately recover the drug press from the

Tillett residence, Crafton’s statement to the CI that the drug press was there and law




                                              6
enforcement’s observation of Crafton driving to the Tillett residence to recover the drug

press still indicate that Crafton was engaged in illicit narcotics dealing.

                                 B. Prosecutorial Misconduct

         During closing arguments, Crafton’s counsel argued that the Government “cherry-

picked” which wiretapped conversations to enter into evidence, omitting conversations

that could have created reasonable doubt. In response, the prosecutor noted during his

closing arguments that Crafton could have introduced any such exculpatory conversations

himself:

         “Let me be clear about this. Defendants have no burden whatsoever to
         present a case, to testify, to present any evidence at all. Okay? But they
         can. And if they wanted to bring in other calls, they could. They have no
         obligation, can’t hold it against them, but they could.”

(App. at A1186.) Crafton’s counsel objected, but the District Court overruled. Based on

this ruling, Crafton and Stewart allege on appeal that they were denied their right to a fair

trial.

         “To find that the court abused its discretion in failing to order a mistrial for

prosecutorial misconduct, we must first be convinced that the prosecution did in fact

misconduct itself.” United States v. Rivas, 493 F.3d 131, 139 (3d Cir. 2007). Although a

prosecutor cannot suggest that the defendant has the burden to produce evidence, see

United States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996), a prosecutor may “‘focus the

jury’s attention on holes in the defense’s theory,’” Lore, 430 F.3d at 213 (quoting Balter,

91 F.3d at 441).

                                                 7
       We find no misconduct here. The prosecutor did not suggest to the jury that the

defendants had the burden to produce evidence. Rather, the prosecutor merely responded

to the defendants’ misleading argument that the prosecutor intentionally failed to present

exculpatory recordings, while reiterating, in the same breath, that defendants do not bear

the burden of producing evidence. This response was permissible. See, e.g., United

States v. Jones, 188 F.3d 773, 779 (7th Cir. 1999) (holding that there was no prosecutorial

misconduct when a prosecutor commented that the defense could have called an expert

witness in response to the defense’s claim that an expert witness would have disproved

the government’s witness testimony).

                         C. Outrageous Government Conduct

       The CI delivered the final shipment of heroin to Stewart’s residence before

Stewart’s arrest. During pre-trial discovery, the Government disclosed that it had since

paid the CI $20,000 in cash for relocation expenses due to threats made on the CI’s life.

Thereafter, at trial, Special Agent Carey indicated during cross-examination that the

Government had made additional payments to the CI that predate this case. (See App. at

425-27.)

       On appeal, Stewart claims that these facts amount to outrageous government

conduct violating his due process rights. More specifically, Stewart asserts that “the

government agents knew that the CI was going to go to the home of Mr. Stewart and plant

drugs in his home unbeknown to him,” (Stewart Br. at 10), and that the Government



                                             8
inappropriately paid the CI $40,000 in exchange for the CI providing information for

Stewart’s prosecution.

       This claim is waived. Motions “alleging a defect in instituting the prosecution,”

including the defense of outrageous government conduct, must be raised before trial.

Fed. R. Crim. P. 12(b)(3)(A); United States v. Pitt, 193 F.3d 751, 760 (3d Cir. 1999). In

order to obtain relief from waiver, the defendant must show “good cause.” Fed. R. Crim.

P. 12(e). Here, Stewart has failed to do so, as he has provided absolutely no explanation

for his failure to raise the outrageous government conduct issue with the District Court.

See United States v. Rose, 538 F.3d 175, 184-85 (3d Cir. 2008) (holding that the

defendant did not show “good cause” because the defendant did not present “any

colorable explanation” as to why he had failed to raise his suppression argument until

appeal).

       Even if the outrageous government conduct claim were properly before us, the

claim would fail on the merits. We have stated that we are “‘extremely hesitant to find

law enforcement conduct so offensive that it violates the Due Process Clause.’”

Hoffecker, 530 F.3d at 154 (quoting United States v. Voigt, 89 F.3d 1050, 1065 (3d Cir.

1996)). Accordingly, an indictment should be dismissed only if the government conduct

is “most intolerable,” and not “each time the government acts deceptively.” Id.

(quotations and citations omitted). Here, Stewart’s assertion that the CI planted drugs in

Stewart’s home is without support, and the record indicates that the only payment the CI



                                             9
received with regard to the instant case was $20,000 for relocation expenses. This is not

intolerable conduct rising to the level of a due process violation.

                                       D. Sentencing

       The District Court sentenced Crafton to 360 months of imprisonment, followed by

ten years of supervised release. This sentence was within the Guidelines range of 360

months to life in prison, which was based on Crafton’s final offense level of 37 and

criminal history category of VI. On appeal, Crafton argues that his sentence is both

procedurally and substantively unreasonable.

       As Crafton’s arguments reflect, we review sentences under an abuse of discretion

standard in two stages. Tomko, 562 F.3d at 567. First, we must

       “ensure that the district court committed no significant procedural error,
       such as failing to calculate (or improperly calculating) the Guidelines range,
       treating the Guidelines as mandatory, failing to consider the § 3553(a)
       factors, selecting a sentence based on clearly erroneous facts, or failing to
       adequately explain the chosen sentence-including an explanation for any
       deviation from the Guidelines range.”

Gall v. United States, 552 U.S. 38, 51 (2007). If the procedure is sound, we then consider

the sentence’s substantive reasonableness based on a totality of the circumstances.

Tomko, 562 F.3d at 567. Our standard of review in this second step is highly deferential:

“we will affirm [the sentence] unless no reasonable sentencing court would have imposed

the same sentence on that particular defendant for the reasons the district court provided.”

Id. at 568. “At both stages of our review, the party challenging the sentence has the

burden of demonstrating unreasonableness.” Id. at 567.

                                             10
       Crafton contends that his sentence is procedurally unreasonable because the

District Court failed to address his alleged diminished mental capacity within its

consideration of the 18 U.S.C. § 3553(a) factors. This argument is belied by the record,

which demonstrates that the Court did address Crafton’s alleged diminished capacity but

declined to grant a variance:

       “Clearly you probably have more challenges than some and fewer
       challenges than others, but they do not rise to a level of warranting any type
       of variance or downward departure for diminished capacity, so I cannot
       grant any variance or departure on that basis.”

(App. at A1266.) As such, we cannot find that Crafton’s sentence is procedurally

unreasonable.

       Crafton’s substantive argument is also without merit. Crafton asserts that his

sentence was “greater than necessary,” 18 U.S.C. § 3553(a), because the District Court

did not explain why the statutory mandatory minimum of twenty years of imprisonment

was insufficient. This brief argument – which sounds procedural rather than substantive

– is unpersuasive. The District Court took into account Crafton’s criminal history, his

status as a career offender, the seriousness of the offense, Crafton’s sophistication, the

need for deterrence, and the need to protect the public before imposing a sentence within

the Guidelines range. Since Crafton has set forth no explanation as to why no reasonable

sentencing court would have imposed such a sentence, he has not met his burden of

demonstrating unreasonableness. Tomko, 562 F.3d at 567-68. Therefore, Crafton’s

substantive claim also fails.

                                             11
                                          IV.

      For the foregoing reasons, we will affirm the District Court’s judgments of

conviction and sentence.




                                           12
